CRIMINAL LAW REVIEW 2017
accused guilty beyond reasonable doubt.
CRIMINAL LAW REVIEW
Prof. Victoria C. Garcia
4A, A.Y. 2016-2017 Second Semester
Transcribed by the SuperSeniors: Maria Aurora Mon, Carmel
Liria, Gretchen Sy, Anne Rose De Guia, Ma. Althea Raypon,
J-ann Javillonar & Maria Maica Angelika Roman
Updates by: Bongalon, David, Garvida, Liwanag, Maranan,
Melosantos, Mina, Navarez, Santos
Some parts taken from CrimRev Notes by the Hizon Twins
and 2016 Golden Notes: Criminal Law
Consolidated and jurisprudence added by: Magculang
GENERAL PRINCIPLES
Criminal Law - branch of division of law which
defines crimes, treats of their nature and provides
for their punishment
Crime - act committed or omitted in violation of
the law. Also refers to any act committed or
omitted in violation of a public law or compelling
law.
2 injuries are committed:
1. Injury committed against a person
 civil indemnity is awarded to the offended
party on the heirs
 personal injury against the private offended
party
2. Injury committed against the state
 Punishment is imprisonment
 Social injury against the state for the
disturbance of peace
Note: for every crime committed, it is more of an
offense against the state rather than against the
private offended party.
Example:
A hit B. B sustained a fatal wound but he survived.
Thereafter, B filed frustrated homicide. The fiscal
found probable cause. In the information filed by
the fiscal, the title is People of the Philippines vs
A.
The trial continued and the judge found the
>The first penalty of the judge is imprisonment
due to social injury. Aside from this, B will pay a
civil indemnity.
(Terms)Crime may be a:
1. FELONY - act/omissions punished by the
Revised Penal Code
2. OFFENSE - punished by a special law
3. ACTS/INFRACTIONS - punished by
ordinances, local legislation
Note that all three are under the umbrella term of
Crime.
Legislative Department - power to enact penal
laws.
The President may issue penal executive orders
and penal presidential decrees if there is a law
enacted by Congress delegating such power to the
President only in times of emergencies
Limitations to the Power of Congress to enact
Penal Laws:
1. Penal law must be general in application
otherwise it would be violative of the Equal
Protection Clause. It must be applied equally
to all.
a. Must not partake the nature of an ex post
facto law. It is a law which makes an act
criminal although at the time it was
committed it is not yet so.
b. Not a Bill of Attainder. It is a law which
punishes the accused without the benefit
of due process without giving him the
opportunity to be heard and to present his
side.
2. Must not impose cruel, unusual punishment
and excessive penalties.
(e.g. Congress cannot amend article 308-309
death, by saying that henceforth that any who
commit theft will be given death. This is unusual
punishment so it is prohibited.)
BAR 2015 Distinguish Ex-post facto law from Bill
of Attainder
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E: [makes an act criminal although at the time it
was committed it is not yet so.]
B: punishes the accused without trial
Characteristics of Penal Laws [GTP]:
1. Generality
- Persons to whom criminal law shall
apply
2. Territoriality
- Place where penal law shall be applied
3. Prospectivity
- Time when it shall apply
1. GENERALITY
 Penal laws shall be applied to all persons
on being within the Philippine territory
whether they are Filipino Citizens or
foreigners regardless of any of their
personal circumstances.
 Applicable to all so long as within the
Philippines
 Applies to non-citizens since while they
are within the Philippines, they are given
protection in the same way that the
government protects its own citizen
Exceptions to the GENERALITY characteristic:
a) Generally Accepted Principles of PIL
Heads of state, chief of state and other diplomatic
heads such as ambassadors and public ministers
are immune from the criminal jurisdiction of the
country where they are assigned. Since they are
immune, they cannot be arrested, prosecuted or
punished.
(Diplomatic Immunity from Suit).
*consuls - not among those who enjoy the
diplomatic immunity from suit
GR:, consuls are subject to penal laws of the
country where they are assigned.
XPN: When there is a treaty or an agreement
between the home country of the consul and the
country where he is designated stating that the
consul is immune from the criminal jurisdiction of
the host country
Example: A is an employee in ADB, a foreigner
economist. A Filipino filed an oral defamation
against the foreigner economist. The DFA issued
a letter and protocol to the court which states that
ADB and PH has an agreement that the ADB
economist is immune from suit. The SC held that
it was erroneous that there was a decision
immediately to dismiss the case without
adducing any evidence, without informing the
fiscal.
SC ruled that diplomatic immunity is only applied
in the exercise of one's function, but in this
defamation case, it immunity will not lie.
Evidence first must be gathered to determine if
the act was done in the exercise of one's
functions. [see Liang v. People, G.R. No. 1256865,
28 January 2000]
Q: A is an Italian Diplomat/Ambassador. From
his hotel xxxxx (sorry malabo talaga po). Since his
bodyguards were not yet ready, he decided to drive
his car by himself. He drove the car however, he
hit a pedestrian. The latter died. Can A be
prosecuted for reckless imprudence resulting in
homicide?
A: The said Italian Ambassador cannot be
prosecuted. He enjoys Diplomatic Immunity from
Suit. Hence, he cannot be arrested, prosecuted and
punished.
Q: If the Italian Ambassador arrived at the NAIA
Terminal 1. He has two (2) attache cases. The
sniffing dogs were trained to sniff dangerous drugs
and the dogs were following him, which means he
has in possession of dangerous drugs. So the
NAIA personnel confiscated the cases, and when
they opened it, it contains drugs in the amount of
more or less three-hundred million Pesos. Can he
be prosecuted for illegal possession/importation
of dangerous drugs?
A: Yes. Diplomatic Immunity from Suit is not
absolute, it is subject to the exception that the act
must be done in the performance of his function.
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Because the carrying of dangerous drug is not in
any way connected in the performance of his
functions
b) Laws of Preferential Application
Laws which exempt certain individuals from
criminal prosecution
e.g. members of Congress are immune from libel,
slander and defamation for every speech made in
the House of Congress during a regular or special
session [Section 11 of Art. VI of the 1987 Phil.
Consti.]
Senator X delivered a privilege speech in Senate.
Sen. X called Sen. Y a womanizer, a smuggler.
These are slanderous remarks to Sen. Y. But Sen.
Y cannot file a case of Slander or Libel against Sen.
X because these slanderous remarks were made in
the halls of congress while the congress is in
regular or special session. Hence, he cannot be
prosecuted.
Many heads of state arrived here for the 2017 Ms.
Universe. Among these was Pres. X, of X state. He
found Ms Portugal very attractive and invited her to
a date in a hotel. Afterwards, Pres. X raped her. Can
Pres. X be prosecuted for rape?
A: YES. Immunity is NOT absolute, limited only to
official functions. As rape is outside of the functions
of the head of state, Pres. X may be prosecuted here.
Q: Pres. X was driving his car on his way to the
pageant, and he hit a pedestrian, who died. May Pres.
X be prosecuted?
A: No. This time he is performing official functions,
thus he cannot be prosecuted in Philippine courts.
2. TERRITORIALITY
 Penal laws shall be applicable only within the
Philippine jurisdiction including its
atmosphere, internal waters, etc.
GR: Crimes committed outside the Philippine
jurisdiction cannot be [prosecuted] under
Philippine courts
XPN: Art. 2 (RPC)
3. PROSPECTIVITY
 Penal laws shall only be applied from the time
of effectivity.
 Penal laws cannot be given retroactive
application
GR: Penal laws shall apply prospectively
XPN: Art. 22 (RPC)
Penal laws may be given the retroactive effect if
favorable to the accused provided that the accused
is not a habitual criminal
Example: X was arrested for Vagrancy under Art.
202 of RPC in March 2013. In July 2013, a new law
enacted by Congress decriminalizing vagrancy
which amende Art 202. This new law will apply in
favor of X because this new law is favorable to him
and X is not a habitual criminal.
The Anti-Subversion Law had long been repealed.
Congress recently revived this law and makes it
criminal for being a member of the CCP-NPA.
Upon the passage of this new law, the police
officers immediately went to the house of X, a
known member of CCP during his younger years
and he was arrested. He challenged this new law,
what are his grounds?
A: First, his argument is that this new law is in
violative of the prospectivity characteristic of
penal law. This is violative because penal law
cannot be given retroactive application except that
if the law expressly provides and it is favorable to
him. Hence, it cannot be given retroactive
application. Second, he can invoke the provision
in the constitution against ex post facto law. It is an
ex-post facto law because at the time that he was a
member of CCP, there was no law punishing
subversion. Therefore, he cannot be prosecuted
under this new law.
Another exception to the prospectivity principle is
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when the Special Penal Law expressly provides for Philosophies under the Crim. Law System:
its retroactivity. An example of which is section 68 1. Classical/Juristic 2. Positivist/Realistic
of R.A. 9344 (Juvenile Justice and Welfare Act of Basis of criminal Basis of criminal
2006) the law expressly provides that it will apply activity is human free liability is man's social
to all persons that have been convicted and already will environment.
serving sentence provided that they are minors at  Man is a moral  "All men are born
the time of promulgation. creature which good, they only
understands right become evil due to
from wrong the influence of the
community."
 When he commits a  Crimes are a social
wrong he phenomenon
voluntarily does the
same, therefore, he
shall be ready for
the consequences of
his acts.
Purpose of penalty is Purpose of penalty is
retribution. rehabilitation
 Evolves from the  Offender is a socially
maxim "an eye for sick individual who
an eye.." therefore, need to be corrected
for every crime not to be punished.
committed, there is
a corresponding
penalty based on
the injury inflicted
on the victim.
Determination of Determination of
penalty is done
mechanically since penalty is done on the
the punishment is case to case basis
proportionate to the
severity sustained by
the victim.
Emphasis is on the Emphasis of the law is
crime and not on the on the offender and not
criminal, on the to the offense
offense and not on the  great regard to the
offender. human element of the
crime
 takes into
consideration why the
offender committed
the crime
3. Mixed/Eclectic Philosophy
Crimes which are Crimes which are
heinous/obnoxious in social/economic-
nature- classical positivist

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RPC - Classical philosophy
 Merely copied from Spanish..French espoused
classical
 Although RPC is molded with classical
philosophy, the amendments are geared
toward the positivist philosophy
e.g.
a) INDETERMINATE SENTENCE LAW - once
served the minimum of his penalty, eligible
for parole (rehabilitation)
b) PROBATION LAW - 6 years and below,
probation report to probation officer
c) RA 9346 -abolished death penalty
THEORIES/RULES CONCERNING CRIMINAL
LAW:
1. Utilitarian Theory/Protective
Magno v. CA
 Purpose of punishment is to protect the
society from actual/potential wrong doing
 Even in violation of special penal laws,
wherein intent does not matter, courts should
see to it that punishment shall only be
imposed to actual/potential wrongdoers.
 Potential wrongdoer was not Magno rather it
was Mrs. Teng. She should not have deposited
the check upon withdrawing the machineries.
She was the one who acted in bad faith.
 SC: If Magno will be the one to be punished,
then it will bring about opportunism.
 Magno was acquitted on the ground of good
faith.
Magno v. CA & People, G.R. No. 96132, 26
June 1992
Facts: Magno was charged with 4 counts of
violation of BP 22 before the RTC QC. Magno, in
the process of putting up a car repair shop, and
wanted to procure car repair service equipment
from Mancor Industries. Magno told Mancor’s VP,
Corazon Teng, that he had no sufficient funds, the
latter reffered Magno to LS Finance, advising its
VP, Gomez, that Mancor was willing to supply the
equipment if LS Finance could provide Magno
credit facilities.
The arrangement went through on condition that
petitioner has to put up a warranty deposit
equivalent to (30%) of the total value of the pieces
of equipment to be purchased, amounting to
P29,790.00. Since Magno could not come up with
such amount, he requested Gomez on a personal
level to look for a third party who could lend him
the equivalent amount of the warranty deposit,
however, unknown to Magno, it was Teng who
advanced the deposit in question, on condition that
the same would be paid as a short term loan at 3%
interest.
As part of the arrangement, petitioner and LS
Finance entered into a leasing agreement whereby
LS Finance would lease the garage equipments and
petitioner would pay the corresponding rent with
the option to buy the same. After the
documentation was completed, the equipment
were delivered to petitioner who in turn issued a
postdated check and gave it to Joey Gomez who,
unknown to the petitioner, delivered the same to
Corazon Teng. When the check matured,
Petitioner requested through Joey Gomez not to
deposit the check as he (Magno) was no longer
banking with Pacific Bank.To replace the first
check issued, petitioner issued another set of six (6)
postdated checks. Two (2) checks dated July 29,
1983 were deposited and cleared while the four (4)
others, which were the subject of the four counts
of the aforestated charges subject of the petition,
were held momentarily by Corazon Teng.
Subsequently, petitioner could not pay LS Finance
the monthly rentals, thus it pulled out the garage
equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was
the one who advanced the warranty deposit.
Petitioner with his wife went to see Corazon Teng
and promised to pay the latter but the payment
never came and when the 4 checks were deposited
they were returned for the reason "ʺaccount
closed."ʺ
Magno was convicted for violations of BP Blg. 22
on the four (4) cases in RTC Quezon City. The
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Court of Appeals affirmed in toto the said decision.
Issue: Whether Magno is guilty of violating BP 22
Ruling: Appeal GRANTED.
By the nature of the "ʺwarranty deposit"ʺ
amounting to P29,790.00 corresponding to 30% of
the "ʺpurchase/lease"ʺ value of the equipments
subject of the transaction, it is obvious that the
"ʺcash out"ʺ made by Mrs. Teng was not used by
petitioner who was just paying rentals for the
equipment. It would have been different if
petitioner opted to purchase the pieces of
equipment on or about the termination of the
lease--‐‑purchase agreement in which case he had
to pay the additional amount of the warranty
deposit which should have formed part of the
purchase price. As the transaction did not ripen
into a purchase, but remained a lease with rentals
being paid for the loaned equipment, which were
pulled out by the Lessor (Mancor) when the
petitioner failed to continue paying possibly due to
economic constraints or business failure, then it is
lawful and just that the warranty deposit should not
be charged against Magno.
To charge Magno for the refund of a "ʺwarranty
deposit"ʺ which he did not withdraw as it was not
his own account, it having remained with LS
Finance, is to even make him pay an unjust
"ʺdebt"ʺ, to say the least, since petitioner did not
receive the amount in question. All the while, said
amount was in the safekeeping of the financing
company, which is managed, supervised and
operated by the corporation officials and
employees of LS Finance. Petitioner did not even
know that the checks he issued were turned over
by Joey Gomez to Mrs. Teng, whose operation was
kept from his knowledge on her instruction. This
fact alone evoke suspicion that the transaction is
irregular and immoral per se, hence, she specifically
requested Gomez not to divulge the source of the
"ʺwarranty deposit"ʺ. It is intriguing to realize that
Mrs. Teng did not want the petitioner to know that
it was she who "ʺaccommodated"ʺ petitioner'ʹs
request for Joey Gomez, to source out the needed
funds for the "ʺwarranty deposit"ʺ. It is in simple
language, a scheme whereby Mrs. Teng as the
supplier of the equipment in the name of her
corporation, Mancor, would be able to "ʺsell or
lease"ʺ its goods as in this case, and at the same
time, privately financing those who desperately
need petty accommodations as this one. This modus
operandi has in so many instances victimized
unsuspecting businessmen, who likewise need
protection from the law, by availing of the
deceptively called "ʺwarranty deposit"ʺ not
realizing that they also fall prey to leasing
equipment under the guise of a lease-purchase
agreement when it is a scheme designed to skim off
business clients.
For all intents and purposes, the law was devised
to safeguard the interest of the banking system and
the legitimate public checking account user. It did
not intend to shelter or favor nor encourage users
of the system to enrich themselves through
manipulations and circumvention of the noble
purpose and objective of the law.
Under the utilitarian theory, the "ʺprotective
theory"ʺ in criminal law, "ʺaffirms that the
primary function of punishment is the
protective of society against actual and
potential wrongdoers."ʺ It is not clear whether
petitioner could be considered as having
actually committed the wrong sought to be
punished in the offense charged, but on the
other hand, it can be safely said that the
actuations of Mrs. Carolina Teng amount to
that of potential wrongdoers whose operations
should also be clipped at some point in time in
order that the unwary public will not be falling
prey to such a vicious transaction
Corollary to the above view, is the application of
the theory that "ʺcriminal law is founded upon that
moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous)
to those conditions upon which depend the
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existence and progress of human society. This
disappropriation is inevitable to the extent that
morality is generally founded and built upon a
certain concurrence in the moral opinions of all. . .
.That which we call punishment is only an external
means of emphasizing moral disapprobation the
method of punishment is in reality the amount of
punishment.”
Thus, it behooves upon a court of law that in
applying the punishment imposed upon the
accused, the objective of retribution of a
wronged society, should be directed against
the "ʺactual and potential wrongdoers."ʺ In
the instant case, there is no doubt that
Magnoʹs four (4) checks were used to
collateralize an accommodation, and not to
cover the receipt of an actual "ʺaccount or
credit for value"ʺ as this was absent, and
therefore petitioner should not be punished for
mere issuance of the checks in question.
Following the aforecited theory, in Magnoʹs stead
the "ʺpotential wrongdoer"ʺ, whose operation
could be a menace to society, should not be
glorified by convicting Magno.
Furthermore, the element of "ʺknowing at the time
of issue that he does not have sufficient funds in
or credit with the drawee bank for the payment of
such check in full upon its presentment, which
check is subsequently dishonored by the drawee
bank for insufficiency of funds or credit or would
have been dishonored for the same reason . . . is
inversely applied in this case. From the very
beginning, Magno never hid the fact that he did not
have the funds with which to put up the warranty
deposit and as a matter of fact, he openly intimated
this to the vital conduit of the transaction, Joey
Gomez, to whom Magno was introduced by Mrs.
Teng. It would have been different if this
predicament was not communicated to all the
parties he dealt with regarding the lease agreement
the financing of which was covered by L.S. Finance
Management.
2. Doctrine of Pro Reo
 Penal laws should always be construed
liberally in favor of the accused and strictly
against the state.
 Reason: Constitutional presumption of
innocence.
3. Lenity Rule
 Whenever a penal law or a provision of penal
law is susceptible of 2 interpretations, the one
lenient to the accused which will bring about
acquittal and the other one strictly against the
accused which will bring about conviction, the
lenient interpretation shall prevail.
 Maxim: In case of doubt, rule always for the
accused.
 Reason: Constitutional presumption of
innocence.
4. Equipose Rule
 Whenever the evidence of the prosecution is
equally balanced with the evidence of the
defense, the scales of justice shall be titled
towards the accused.
Reason:
1. Constitutional presumption of innocence
2. Prosecution has the burden of
proving conviction beyond reasonable doubt.
Example in Equipose Rule
X is being prosecuted for illegal possession
of dangerous drugs. During the trial, the
prosecution presented a forensic chemist who
tested the dangerous drug, presented the arresting
officer and the latter testified that he got a tip from
an informant that X bought shabu from a drug
pusher. They saw X in the canteen, while X was
eating they arrested X, frisked X and bodily
searched X and found 2 sachets of shabu.
At the time of the presentation of the evidence for
the defense, the defense counsel presented the
accused. He testified that he was not in possession
of dangerous drug. According to him, he was
merely eating at the canteen when suddenly the
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Police Officers arrived and arrested him and
proceeded in the Police station. While at the
station, suddenly, there were 2 plastic sachets of
shabu which were taken out and allegedly this was
found from the accused.
Aside from the accused, the defense presented the
owner and the waiter of the canteen. Both
corroborated the testimony of the accused that X
was arrested and they did not see any act of body
search, frisking and dangerous drug taken out
from the accused.
If you were the Judge, will you convict or acquit
the accused?
A: Here, the evidence of the prosecution is equally
balanced with the evidence of the defense.
Therefore, based on the so called equipoise rule,
the accused has to be acquitted. The prosecution
failed to prove the guilt of the accused beyond
reasonable doubt
Conviction based on the strength of the
evidence of the accused.
Q: What if what has performed was a
perverted/immoral act but there is no law which
punishes the said act. Can the person be
prosecuted in court?
A: No, "nullem crimen nulla poena sine lege" there
is no crime when there is no law which punishes
it. The court must dismiss the case, not acquit.
Q: Are there common law crimes in the
Philippines?
A: Common law crimes are principles, usages and
use of action which the community considers as
condemnable even if there's no law that punishes
it.
There are no common law crimes in the
Philippines since the Philippines is a civil law
country. Penal laws are enacted. They do not
evolve through time.
Q: Where do you file criminal cases?
A: In case of light and less grave felonies, cases
must be filed before MTCs. This felony carries
with it an imprisonment of 6 years or below 6
years.
If it is grave felonies, those were the penalty
prescribed by law is more than 6 years, cases must
be filed before the RTC.
Exceptions:
1. When the law specially provides. Example.
Libel- must be filed before RTC even though it
carries a penalty of below 6 years.
2. In cases of crimes committed by public officers
(RA 3090) the Anti-Graft and Corrupt Practices
Act and the Plunder Law. If the public officer
who is of salary grade 27 and above is charged,
the Ombudsman must file the cases before the
Sandiganbayan. But if it is below salary grade 27,
it must be filed before the appropriate trial court
(RTC or MTC)
3. If the [accused] is a minor, it must be tried in a
Family Court. If there is no Family court (such
as in provinces), in the RTC.
Art. 1. This Code shall take effect on January 1,
1932.
RPC took effect on January 1, 1932 passed into
law on December 8, 1930.
Art. 2. Application of its provisions. - Except as
provided in the treaties and laws of preferential
application, the provisions of this Code shall be
enforced not only within the Philippine
Archipelago, including its atmosphere, its interior
waters and maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a
Philippine ship or airship
2. Should forge or counterfeit any coin or
currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the
obligations and securities mentioned in the
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presiding number;
4. While being public officers or employees,
should commit an offense in the exercise of
their functions; or
5. Should commit any of the crimes against
national security and the law of nations,
defined in Title One of Book Two of this Code.
Art. 2 of the RPC has 2 scopes of application -
1. intraterritorial application
 provides that the RPC shall enforced within
the Philippine archipelago, including its
atmosphere, its interior waters and maritime
zone
2. extraterritorial application
'Except as provided in the treaties and laws of
preferential application'” What does this phrase
mean?
>This phrase means treaties entered with other
countries, laws of preferential application takes
preference over the provision of the RPC.
Therefore, if there is any conflict between any
agreements entered into by the Philippines with
another country, if it is in conflict with any
provisions of the RPC, the said agreement shall
prevail over the provision of RPC.
Remember the Larranaga case, based on the
RPC, a person who is convicted of a crime shall
serve his sentence in the New Bilibid Prison, that
is the national penitentiary. However, the
Philippines entered into an agreement with
Spain. This agreement was ratified by the Senate.
As a result thereof, after Larranaga has been
convicted of kidnapping and serious illegal
detention with rape and homicide, considering
that he has 2 citizenships - both Filipino and
Spanish. He was brought to Spain, and there he is
serving his sentence. Because based on that
agreement, Spanish citizens who are serving their
sentence in the Philippines can be brought to
Spain and they are to serve their sentence there.
Larranaga took advantage because definitely, the
facilities perhaps are better than prison facilities
here.
Extraterritorial Application:
1st: Those who should commit an offense while on a
Philippine ship or airship.
When is it a Philippine ship or airship?
If it is registered in the Philippines and under the
Philippine laws. Even if totally or wholly owned
by a Filipino citizen, if it is not registered in the
Philippines it cannot be considered as a
Philippine ship/airship. It is only upon
registration that this aircraft/vessel can fly the
Philippine flag. Therefore, it is registration which
is the operative act which makes it a Philippine
ship/airship.
Now the law says, when a crime is committed on
board a Philippine ship/airship. The
extraterritorial application of the RPC will apply.
It means even if the crime is committed in
another place outside the Philippine jurisdiction,
still, the RPC will apply. So what is this situation?
This is a situation where a crime is committed on
board a Philippine vessel (pv) while it is outside
Philippine territory but not in the territory of
another country. The pv is on waters of the
Philippines, a crime was committed on board.
What country will have jurisdiction?
Obviously, the Philippines.
What if that pv is on the high seas or international
waters and a crime was committed on board the
said pv. What country will have jurisdiction over
the said crime?
>Still the Philippines. Because of the
extraterritorial application of the RPC.it is the
situation referred to as the 1st circumstance
under paragraph 2 of Art. 2. It is the situation
where the Philippine ship is outside the
Philippine territory but not in the territory of
another country.
What if the pv is on the waters on Malaysia and a
crime was committed on board. What country
will have jurisdiction?
>Malaysian courts will have the jurisdiction
because of the territoriality characteristic of
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criminal law.
Any exception?
>If the vessel is a Philippine war vessel or
warship. Or it is a Philippine warplane because a
Philippine warship or war aircraft is considered
an extension of the Philippine sovereignty.
Therefore, wherever they may be, when a crime
is committed on board a Philippine war vessel or
warplane, the Philippines will always have
jurisdiction and the reason is the 1st paragraph of
Art. 2 of the RPC - that is the intraterritorial
application of the RPC because it is as the crime is
committed within the Philippine territory.
In so far as foreign merchant vessel is concerned.
There are 2 rules:
French Rule - crimes committed on board while
the foreign vessel is on the water of another
country is within the jurisdiction of the flag
country. That is the country where the country is
registered. EXCEPT when the crime committed
affects the public order, the peace and security of
the host country, then the host country will have
jurisdiction over the said crime. Therefore, the
French Rule recognizes the jurisdiction of the
country where the vessel is registered.
French Rule = flag country
English Rule - when a crime is committed on
board a foreign merchant vessel while on the
waters of another country it is the host country
which will have jurisdiction over the said crime.
EXCEPT when the crime merely affects the
internal management of the vessel, then it is the
flag country which will have jurisdiction. In effect,
the English Rule is territorial in nature.
The Philippines adhere to the English Rule
which is strictly territorial in nature.
Ex. A foreign merchant vessel is on Manila Bay. A
crime was committed on board, the Philippines
will have jurisdiction over the said crime and
criminal because we follow the English Rule.
2nd: Those who should forge or counterfeit any
coin or currency note of the Philippine Islands or
obligations and securities issued by the
Government of the Philippine Islands.
3rd: Those who should be liable for acts connected
with the introduction into these islands of the
obligations and securities mentioned in the
presiding number.
Ex. So X was in Japan. He counterfeited Philippine
coins. He then introduced these coins in to the
Philippine Islands. Although the crime has been
committed in Japan, he can be held liable before
Philippine courts. This is necessary in order to
maintain and preserve the financial circulation
and financial stability of the Philippines.
Otherwise, no other country would be interested
in prosecuting him except the Philippines because
it is only the Philippines will be affected by the
said counterfeiting of coins.
4th: Those who while being public officers or
employees should commit an offense in the exercise
of their functions.
This refers to public officers or employees of the
Philippine Government who are working in
another country. While they are working in
another country, they committed a crime. If the
crime committed by this public officers or
employees are in connection with the exercise of
their functions, they can be prosecuted before
Philippine courts. But if the crime they committed
is in no way connected with the exercise of their
functions, then they should be prosecuted in the
courts of the country where they are assigned.
Ex.
[An] OFW lost his passport, he went to the
Philippine Embassy in Japan applying for a new
passport. He has been going there back and forth
that it has not it was not yet approved or it was
not yet released. On his way out, he saw the
approving authority (AA). He talked to AA
requesting and begging him that it be
immediately approved and released. He was
invited to a coffee shop, while having coffee, AA
asked $500 from him and promised on that same
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afternoon, his passport would be released. So the
poor OFW gave AA the $500. Where may this AA
be prosecuted? Before Philippine courts or before
the courts of Japan?
AA may be prosecuted before the Philippine
courts. He did not commit in effect a crime in
approving the said passport because it his
obligation to approve the said passport. However,
he would not perform his obligation without a
bribe. He would not perform his function without
the money given by the said OFW. So in effect, he
committed bribery in its 2nd form - he performs
an act not constituting a crime in connection with
the exercise of his function in consideration of the
bribe money. So here, he committed bribery, he
can be prosecuted before Philippine courts. His
act is in connection with the exercise of his
functions.
What if a beautiful and attractive OFW was
following up her passport to the Phil Amb. to Japan,
and the latter asked for sex in exchange of the
release. In desperation, the OFW accepted the deal,
and they went to a motel for sex. Later she went back
to the Phils and filed a case for sexual harassment.
Will the case prosper?
A: the case will prosper, as he asked for sex in return
of the release of the passport. This is in connection
with his official duties. Thus Phil. Courts have
jurisdiction.
What if instead of the AA, here comes a Filipino
filing clerk (FC) inside the Philippine Embassy.
The FC followed the OFW, the FC told him that he
can facilitate the release of his passport if he will
him $50. Desperate, the OFW gave him the
money. However, that afternoon, the passport
was still not released. He wanted to file a case
against the FC. Where can he file a case? Before
courts of Japan or Philippines?
It should be filed before the courts of Japan
because the act performed by FC has nothing to
do with the exercise of his official functions. In
effect, what he has committed is estafa because he
made this OFW believe that he has the authority
to facilitate the release of the said passport but he
did not have such qualification. He committed
estafa under Art.315(2)(a). Therefore, he should
be prosecuted before the courts of Japan.
What if there is this Philippine consul (PC). The PC
told his secretary (S) to work overtime. So S
followed PC. In the evening, PC gave coffee to S.
Unknown to S, there was something mixed in the
coffee to make her unconscious. So after drinking
the coffee, she became unconscious and she was
raped by PC. Snow wanted to file a case against
PC. Where may she file the case?
The act of rape committed has nothing to do with
the exercise of PC's functions. Therefore, it should
be filed before the courts of Japan. However, it
was committed inside the Philippine Embassy.
The Philippine Embassy which is considered an
extension of the Philippine sovereignty, then it is
as if the crime was committed within the
Philippine territory. Therefore, S should file the
case before the Philippine courts because it is as
if the crime was committed within the Philippine
archipelago. The reason for this is the
intraterritorial application of the RPC. But if the
rape was committed at any other place outside
the Philippine Embassy, then PC should be
prosecuted before the courts of Japan because
rape is in no way connected with the exercise of
his functions and a consul does not enjoy
diplomatic immunity.
Example: X is a US citizen born in the USA of
Filipino parents wanted to visit the Philippines. So
he applied for passport in Phil. Embassy in
California USA. The passport has not yet been
approved, so he asked the Secretary when his
passport will be approved. The secretary said that
his application is at the bottom of the papers to be
signed by the approving authority. The secretary
also said that it will be approved more than a
month. She invited X to a coffee shop and told X
that she was the secretary of the Approving
Officer and offered that she can place his passport
on top of the documents to be approved by her
boss, that is, if X will gave the secretary 500 USD.
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Then X gave her the money. So as promised, she
did place it on top of the documents and was
approved immediately. Can the said secretary be
prosecuted in Phil. Courts? or US Courts?
A: She can be prosecuted before the Philippine
Courts. As a secretary it is her duty to place the
documents on the table of the approving authority
and the latter approved the documents based on
where they are placed. The secretary committed
the crime of Bribery (Direct Bribery) because she
accepted money in exchange of doing it which is
not prohibited under the law but she favored X. It
is connected with her official function being the
secretary of the approving authority.
Q: Under the same case and the same facts but the
offender is a Janitor of the Phil. Embassy, Where
can the janitor be prosecuted?
A: In the US Courts because it is not in any way
connected with his job as a janitor.
Q: What if in the same problem, while the Janitor
saw X leaving the embassy, he told X to follow
him in the janitorial services room inside the Phil.
Embassy and told X that by giving him 200USD
he can guaranty that his passport will be released
in a week, so X gave the Janitor the money. Where
can the janitor be prosecuted?
A: In the Philippine Courts. Even if the crime is
not in any way connected to his functions as a
janitor, since it is committed inside the Phil.
Embassy it is considered to have been committed
within the Philippine Territory because the Phil
embassy is an extension of the sovereignty. Even
if the crime committed is not in any way connected
with the function of the public employee, if it is
committed in Phil. Embassy, he can be prosecuted
before the Philippine Courts.
5th: Those who should commit any of the crimes
against national security and the law of nations,
defined in Title One of Book Two of this Code.
Crimes against national security - treason,
conspiracy/proposal to commit treason,
misprision of treason, espionage, enticing to war,
etc...If any of this crime is committed, even if it is
done outside the Philippine archipelago the
offender can be prosecuted before the Philippine
courts.
Reason: extraterritorial application of the RPC.
Likewise, if the crime committed is against the
Law of Nations (only 4 crimes - piracy, qualified
piracy, mutiny and qualified mutiny) the said
offender can also be prosecuted before the
Philippine courts.
Article 3. Definitions. - Acts and omissions
punishable by law are felonies (delitos).
Felonies are committed not only be means of
deceit (dolo) but also by means of fault (culpa).
There is deceit when the act is performed
with deliberate intent and there is fault when the
wrongful act results from imprudence,
negligence, lack of foresight, or lack of skill.
FELONIES - are acts or omissions punishable by
the RPC When the law says 'by law', it means the
RPC.
ACTS - refer to any body movement which has a
direct connection to the felony intended to be
committed. It is an external act, an overt act in
connection with the felony intended to be
committed. Therefore, internal acts or mere
criminal thoughts will never give rise to a crime.
Ex. A lust[s] for his neighbor. Whenever the
neighbor would pass by going to work, A would
always look at the neighbor. And for the whole
day, he would think of the neighbor with nothing
but lust. No matter how criminal his thoughts are
it will never give rise to a crime because it is
merely an internal unless he performs an external
act or an overt act related to acts of lasciviousness
or attempted rape or rape. The law requires an
act.
OMISSION - is the failure of a person to perform
an act or to do a duty which is required by law
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Ex. If a person found, any personal property on
the street or on any place and he failed to deliver
the same to the owner or to the local authorities.
Under Art.308 he becomes liable for theft. Or if a
person was driving his vehicle, then he bumped
and hit another person. And instead of helping
that person, he increased his speed and left. It is a
hit-and-run situation. Such fact that he failed to
lend help and assistance to that victim will
aggravate his criminal liability under Art. 365. So
here, for failing to perform an act which is
required by law to be done. He commits a felony.
So felonies are acts or omissions punishable by
the RPC.
2 kinds of felonies that are may be committed
under Art. 3:
1. Deceit/dolo/intentional felony - when the act is
done with deliberate intent
Elements:
1) Criminal intent on the part of the offender
2) Freedom of action in doing the act on the
part of the offender
3) Intelligence of the offender
An intentional felony is a voluntary act because it
is committed by means of deliberate intent.
2. Fault/culpa/culpable felony- when the
wrongful act results from imprudence,
negligence, lack of foresight or lack of skill
Elements:
1) Criminal negligence
2) Freedom of action
3) Intelligence
Under Art. 365, a culpable felony is defined as [a
voluntary act] wherein the offender, although
without malice or deliberate intent caused an
injury to another by the means of negligence or
imprudence. Therefore, even a culpable felony is
a voluntary act. [The only difference is that in
dolo, there is malice. In culpa, there is none.]
In so far as criminal law is concerned,
voluntariness is actually the concurrence of the 3
elements of intentional felony and the
concurrence of the 3 elements of culpable felony.
In other words, in so far as voluntariness of
intentional felony is concerned, it is the
concurrence of criminal intent, freedom of action
and intelligence.
Therefore, without voluntariness, there can
neither be an intentional felony nor a culpable
felony.
A common element of both intentional and
culpable felony is freedom of action - there is
freedom of action when the offender
performs the act on his own free will, without
force, duress, uncontrollable fear.
So note if the offender performs the criminal act
but he did the act because there was this
compulsion and irresistible fear or under the
impulse of an uncontrollable fear. There is no
criminal liability. They are exempting
circumstances under Art. 12 of the RPC because
there is no freedom of action, an element of
voluntariness. There is neither an intentional
felony nor culpable felony because there is
wanting of freedom of action, an element of
voluntariness.
On the other hand, intelligence is also a common
element of intentional and culpable felony.
Intelligence is the mental capacity of a person to
know wrong from right and to appreciate the
consequences of one's act. If the person acted
without intelligence, there is no criminal liability.
So if the criminal act has been committed by an
insane, an imbecile or a minor, the said offender
is said to be exempted from criminal liability.
Under Art. 12, they are exempting circumstances,
he is free of both intentional and culpable felony
because he acted without intelligence, an element
of voluntariness.
INTENT is the use of a particular means to
achieve the desired result. You cannot see intent.
It is an internal state of the mind.
Intent is determined by the means employed by
the offender in committing the act or by the overt
acts of a person constituting the commission of
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the crime.
Ex. The use of a lethal weapon would show intent
to kill on the part of the offender although death
did not arise. Taking the personal property of
another without the consent of the owner would
show intent to gain on the part of the offender.
2 kinds of intent:
1) General Criminal Intent (GCI)
2) Specific Criminal Intent (SCI)
GCI is presumed by law by the mere doing of an
act. Therefore, the prosecution does not have the
burden to prove it.
SCI is just like an element, an ingredient of the
commission of the crime. It is not presumed.
Therefore, it must be proven by the prosecution
beyond reasonable doubt.
Specific criminal intent must be alleged in the
information filed against the accused and must be
proven beyond reasonable doubt either by
DIRECT evidence or by CIRCUMSTANTIAL
evidence.
Ex. Intent to kill must be proven in
frustrated/attempted homicide. A and B were
fighting. A was losing and so A shot B. B was hit
on the left arm. He was brought to the hospital.
Thereafter, after B's release from thehospital, he
filed a case against Afor attempted homicide.
Since the case filed is attempted homicide.
The prosecution has the burden of proving intent
to kill on the part of A when he shot B and hit him
on the left arm. Otherwise, if the prosecution
failed to prove intent to kill on the part of A. Then
A can only be convicted of serious/less
serious/slight physical injuries depending on the
date required for medical intervention or he
should be acquitted of the crime. Intent to kill
must be proven.
But what if in the course of their fight, A was
losing and so A took out his pistol and he shot B.
B was shot on the heart, a fatal wound, a mortal
wound was sustained because it was a vital organ
which was hit. A immediately bought B to the
hospital. However, upon arrival, he was
pronounced dead. Therefore, the heirs of B filed a
case for homicide against A. A's defense, I have no
intention to kill B. According to him, he only
intended to threaten B because they were
fighting. Will this defense lie?
A's defense that he has not intent to kill B will not
lie. The reason is since the victim died, intent to
kill becomes a GCI which is presumed by law.
Prosecution need not prove intent to kill in
homicide, parricide, murder, infanticide (HPMI)
because the victim died. It is only in the attempted
and frustrated stages of the HPMI wherein intent
to kill is considered an element.
Why is it only in the consummated stage of
HPMI that intent to kill is presumed?
>Because the best evidence to prove intent to
kill is that the victim died. So it is presumed by
law.
X and Y are fighting, X is a karate master. X
kickboxed the neck of Y, the chest of Y and both
legs of Y.
Y was rushed to the hospital and survived, but he
was hospitalized for a period of 2 months or 60
days. And so a case of frustrated homicide was
filed against X. X however contended he has no
intent to kill, because it was a fight. He never
intended to kill, he only intended to injure.
 Here intent to kill is a specific criminal intent
which must be proven by the prosecution. If
the prosecution failed to prove specific
criminal intent on the part of X when he
kickboxed the neck, chest and legs of Y, then
the court can only convict X of Serious
Physical Injuries. Because said criminal intent
was not proven by the prosecution.
What if in the same problem. When X kickboxed,
the neck, chest and legs of Y. Y was put to the
hospitalized, but 2 days after, Y died because of
the injuries sustained. And so, a case of homicide
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was filed against X.
 Here, the prosecution need not prove the
intent to kill, because the Victim Y died, intent
to kill becomes a GENERAL CRIMINAL
INTENT which is presumed by law.
 It is the accused X, who has the burden
of evidence to prove that when he
inflicted physical injuries to Y, there was
no intent to kill.
 The best evidence of intent to kill is when the
victim died.
MOTIVE - the moving power which impels a
person to do an act to achieve the desired result
As a rule, motive is not material in determining
the criminal liability of the offender is identified,
admits to the commission to the crime, if the
prosecution has direct evidence or eyewitness to
the commission of the crime, if crime committed
is a culpable felony, crime committed is not a
special penal law.
XPNs: intent becomes material in determining the
criminal liability of the offender -
1. When the act of the offender would result to
variant crimes (to know what crime should
be charged)
Ex. City mayor (CM) was jogging near the
seashore. Here comes X who went to CM and
him. CM was not in the performance of his
official duty when he was shot. Therefore, the
act of X in killing and shooting CM may result
to variant crimes depending on the motive,
depending on the reason of X of killing. If the
reason is a personal grudge/vendetta, murder
is committed. But if the reason is because of
CM's past performance of his duty, then the
crime committed is direct assault with
homicide.
2. When the identity of the offender is doubtful
Ex. There are so many suspects, A, B, C, D and E.
There's doubt as to who among the committed
the crime. Then motive will become material
in determining the criminal liability of the
offender.
3. When the prosecution only has circumstantial
evidence to prove the commission of the crime
Ex. Who was the last person seen together with
the victim before he was killed? Why was he
with the victim at that time? What could be the
motive behind the kill? All of these must be
taken into consideration because there was no
eyewitness, no direct evidence in the
commission of the crime.
*Motive alone, however strong, will never bring
about conviction. But motive + circumstantial
evidence, motive + supporting evidence =
conviction.
How is intent established? How is motive
established?
Rivera, et al. v. People, G.R. No. 166326, 25
January 2006
Facts: One day, the victim Ruben Rodil went to a
store to buy food when one of the petitioners,
Edgardo Rivera, mocked him for being jobless and
dependent on his wife for support. A heated
exchange of words ensued. The next day, Ruben
went to the store to buy food and to look for his
wife. Momentarily, Esmeraldo and his two
brothers, petitioners Ismael and Edgardo, emerged
from their house and ganged up on Ruben.
Esmeraldo and Ismael mauled Ruben with fist
blows and he fell to the ground. In that helpless
position, Edgardo hit Ruben three times with a
hollow block on the parietal area. Esmeraldo and
Ismael continued mauling Ruben. People who saw
the incident shouted: "Awatin sila! Awatin sila!"
Ruben felt dizzy but managed to stand up. Ismael
threw a stone at him, hitting him at the back. When
policemen on board a mobile car arrived,
Esmeraldo, Ismael and Edgardo fled to their
house. Ruben was brought to the hospital where
he received medical treatment. The doctor certified
that the wound in the parietal area was slight and
superficial and would heal for 1 to 7 days.
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The RTC of Imus, Cavite found the Riveras guilty
of frustrated murder. The CA affirmed the RTC.
Issue: Whether the intent to kill was not proven.
Ruling: Petition DENIED.
Evidence to prove intent to kill in crimes
against persons may consist, inter alia, in
1) the means used by the malefactors,
2) the nature, location and number of wounds
sustained by the victim,
3) the conduct of the malefactors before, at
the time, or immediately after the killing of
the victim,
4) the circumstances under which the crime
was committed and,
5) the motives of the accused.
If the victim dies as a result of a deliberate act
of the malefactors, intent to kill is presumed.
In the present case, the prosecution mustered the
requisite quantum of evidence to prove the intent
of petitioners to kill Ruben. Petitioners Esmeraldo
and Ismael pummeled the victim with fist blows.
Even as Ruben fell to the ground, unable to defend
himself against the sudden and sustained assault of
petitioners, petitioner Edgardo hit him three times
with a hollow block. Edgardo tried to hit Ruben on
the head, missed, but still managed to hit the victim
only in the parietal area, resulting in a lacerated
wound and cerebral contusions [end].
De Guzman, Jr. v. People, G.R. No. 178512, 26
November 2014
Facts: One evening the victim Alexander Flojo
(Alex) was fetching water below his rented house
in Mandaluyong City when accused Alfredo De
Guzman, Jr. suddenly appeared and hit him on the
nape. The sister of Alfredo and Alex’s landlady
Lucila apologized on Alfredo’s behalf and told
Alex to go upstairs, which the latter did. Two hours
later Alex resumed fetching water, when suddenly
Alfredo appeared again and stabbed Alex on his
face and chest. Alex was rushed to hospital where
he received timely medical treatment, which
prevented his death. Alfredo on the other hand,
denied stabbing Alex.
The RTC Mandaluyong City convicted Alfredo of
frustrated homicide, and the CA confirmed the
conviction.
Issue: Was De Guzman, Jr. not properly found
guilty beyond reasonable doubt of frustrated
homicide?
Ruling: Petition DENIED.
The essential element in frustrated or attempted
homicide is the intent of the offender to kill
the victim immediately before or simultaneously
with the infliction of injuries. Intent to kill is
a specific intent that the State must allege in
the information, and then prove by either direct
or circumstantial evidence, as differentiated from
a general criminal intent, which is presumed
from the commission of a felony by dolo.
Intent to kill, being a state of mind, is
discerned by the courts only through external
manifestations, i.e., the acts and conduct of the
accused at the time of the assault and
immediately thereafter.
In Rivera v. People, the Court considered the
following factors to determine the presence
of intent to kill, namely:
1) the means used by the malefactors;
2) the nature, location, and number of
wounds sustained by the victim;
3) the conduct of the malefactors before,
during, or immediately after the killing
of the victim; and
4) the circumstances under which the crime
was committed and the motives of the
accused.
The Court also considered as determinative
factors the motive of the offender and the
words he uttered at the time of inflicting the
injuries on the victim.
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Here, both the trial and the appellate court agreed
that intent to kill was present. We concur with
them. Contrary to the petitioner’s submission, the
wounds sustained by Alexander were not mere
scuffmarks inflicted in the heat of anger or as the
result of a fistfight between them. The petitioner
wielded and used a knife in his assault on
Alexander. The medical records indicate, indeed,
that Alexander sustained two stab wounds,
specifically, one on his upper left chest and the
other on the left side of his face. The petitioner’s
attack was unprovoked with the knife used therein
causing such wounds, thereby belying his
submission, and firmly proving the presence of
intent to kill. There is also to be no doubt about
the wound on Alexander’s chest being sufficient to
result into his death were it not for the timely
medical intervention.[end]
Roque v. People, G.R. No. 193169, 6 April 2015
Facts: Petitioner Rogelio Roque was charged with
frustrated homicide in the RTC of Malolos,
Bulacan. The prosecution averred that Reynaldo
Marquez sought to settle a misunderstanding with
Roque, and with the assistance of the barangay
chairman Tayao, he went to Roque’s house to talk
to the latter. Marquez apologized to Roque, but the
latter shot at Marquez, who was hit in the right ear
and nape. Unsatisfied, Roque kicked Reynaldo-
who was then on the ground-on the face and back.
Marquez pleaded for help from Tayao but Roque
warned those around not to get involved.
Fortunately, Marquez’s parents arrived and
brought him to the hospital, and he survived.
Roque, on the other hand, alleged that Reynaldo
and his brother Rodolfo, who were both drunk,
cursed Roque. The latter ignored the two and just
went home. Later, the Marquez brothers went to
Roque’s house, still shouting invectives at the
latter. The Marquez brothers were persuaded to
leave, but not without threatening to kill Roque.
They did return and challenged Roque to a gun
duel, and Reynaldo fired his gun. As an act of self-
defense, Roque fired back twice.
The RTC found Roque guilty as charged, and the
CA affirmed the conviction.
Issue: Whether Roque is guilty only of less serious
physical injuries, not frustrated homicide.
Ruling: Petition DENIED.
The CA correctly affirmed the RTC’s ruling that
Roque is guilty of frustrated homicide and not
merely of less serious physical injuries as the latter
insists. As aptly stated by the CA:
In attempted or frustrated homicide, the
offender must have the intent to kill the victim.
If there is no intent to kill on the part of the
offender, he is liable for physical injuries only.
Vice-versa, regardless of whether the victim only
suffered injuries that would have healed in nine to
thirty days, if intent to kill is sufficiently borne out,
the crime committed is frustrated homicide (Arts.
263-266).
Usually, the intent to kill is shown by the kind
of weapon used by the offender and the parts
of the victim’s body at which the weapon was
aimed, as shown by the wounds inflicted. Hence,
when a deadly weapon, like a bolo, is used to stab
the victim in the latter’s abdomen, the intent to kill
can be presumed (Reyes, The Revised Penal Code, 13TH
ED., P. 431).
It is worth highlighting that the victim received two
gunshot wounds in the head. Indeed the location
of the wounds plus the nature of the weapon
used are ready indications that Roque’s
objective is not merely to warn or incapacitate
a supposed aggressor. Verily, had Roque been
slightly better with his aim, any of the two bullets
surely would have killed Marquez outright. Also,
the intent to kill is further exhibited by the fact
that Roque even prevented barangay officials
from intervening and helping the bleeding
victim. Indeed, the fact that Reynaldo Marquez
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was miraculously able to live through the ordeal modified the criminal liability of the 25 accused
and sustain only modicum injuries does not mean based on their individual participation, as at the
that the crime ought to be downgraded from time Villareal passed away:
frustrated homicide to less serious physical injuries.  19-Victorino, Sabban, Lledo, Guerrero,
After all, as was mentioned above, what should be  Musngi, Perez, De Guzman, Santos, General,
determinative of the crime is not the gravity of the Flores, Lim, Montecillo, Ranada, Mendoza,
resulting injury but the criminal intent that Verdadero, Purisima, Fernandez, Abas, and
animated the hand that pulled the trigger [end]. Brigola-were acquitted as their individual guilt
was not established beyond reasonable doubt;
Villareal v. People, G.R. Nos. 154954, 155101,  4-Tecson, Ama, Almeda, and Bantug, Jr. were
178057 & 178080, 1 February 2012 guilty of slight physical injuries;
Facts: Seven freshmen law students, including the
 Dizon [and Villareal were] guilty of homicide
victim Lenny Villa, of the Ateneo Law School
underwent initiation rites to join the Aquila Legis
Issues:
Juris Fraternity. For two days, the neophytes were
1. Whether the CA committed grave abuse of
subjected to traditional forms of Aquilan initiation
discretion, amounting to lack or excess of
rites, indoctrination of fraternity principles, and
jurisdiction, when it set aside the finding of
made to present comic plays and play rough
conspiracy by the trial court and adjudicated
basketball.
the liability of each accused according to
individual participation (NO)
After the initiations for the second day ended, two
2. Whether accused Dizon is guilty of homicide
non-resident or alumni frat members Dizon and
(NO); and
Villareal demanded that the rites be re-opened. The
3. Whether the CA committed grave abuse of
frat members, including Dizon and Villareal,
discretion when it pronounced Tecson, Ama,
subjected the neophyes to “paddling” and
Almeda, and Bantug guilty only of slight
additional rounds of physical pain.
physical injuries (YES)
Leny received several paddling blows, one of
Ruling:
which was so strong that it sent him sprawling to
The element of intent - on which this Court shall
the ground. After the rounds, he could no longer
focus - is described as the state of mind
walk. Leny and the other neophytes ate dinner and
accompanying an act, especially a forbidden act. It
slept after the initiations were officially over.
refers to the purpose of the mind and the resolve
with which a person proceeds. It does not refer to
After an hour of sleep, the neophytes were
mere will, for the latter pertains to the act, while
suddenly roused by Leny’s shivering and
intent concerns the result of the act. While motive
incoherent mumbling. Dizon and Villareal initially
is the "moving power" that impels one to action
dismissed it as overreaction, but later realized that
for a definite result, intent is the "purpose" of using
Leny was feeling cold. The Aquilans tried to keep
a particular means to produce the result. On the
him warm, but his condition worsened. Leny was
other hand, the term "felonious" means, inter alia,
rushed to hospital, but was declared dead on
malicious, villainous, and/or proceeding from an
arrival.
evil heart or purpose. With these elements taken
together, the requirement of intent in intentional
A criminal case for homicide was filed against the
felony must refer to malicious intent, which is a
35 Aquilans. The RTC held 26 of them guilty. The
vicious and malevolent state of mind
CA set aside the RTC’s finding of conspiracy
accompanying a forbidden act. Stated otherwise,

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intentional felony requires the existence of dolus
malus - that the act or omission be done "willfully,"
"maliciously," "with deliberate evil intent," and
"with malice aforethought." The maxim is actus non
facit reum, nisi mens sit rea - a crime is not committed
if the mind of the person performing the act
complained of is innocent. As is required of the
other elements of a felony, the existence of
malicious intent must be proven beyond
reasonable doubt.
The existence of animus interficendi or intent
to kill not proven beyond reasonable doubt
The trial court, the CA, and the Solicitor General
are all in agreement that – with the exception of
Villareal and Dizon - accused Tecson, Ama,
Almeda, and Bantug did not have the animus
interficendi or intent to kill Lenny Villa or the other
neophytes. We shall no longer disturb this finding.
As regards Villareal and Dizon, the CA modified
the Decision of the trial court and found that the
two accused had the animus interficendi or intent to
kill Lenny Villa, not merely to inflict physical
injuries on him. It justified its finding of homicide
against Dizon by holding that he had apparently
been motivated by ill will while beating up Villa.
Dizon kept repeating that his father's parking space
had been stolen by the victim's father. As to
Villareal, the court said that the accused suspected
the family of Bienvenido Marquez, one of the
neophytes, to have had a hand in the death of
Villareal's brother.
We cannot subscribe to this conclusion.
According to the Solicitor General himself, the ill
motives attributed by the CA to Dizon and
Villareal were "baseless," since the statements of
the accused were "just part of the psychological
initiation calculated to instill fear on the part of the
neophytes"; that "[t]here is no element of truth in
it as testified by Bienvenido Marquez"; and that the
"harsh words uttered by Petitioner and Villareal are
part of `tradition' concurred and accepted by all the
fraternity members during their initiation rites."
We agree with the Solicitor General
Dizon's way of inflicting psychological pressure
was through hurling make-believe accusations at
the initiates. He concocted the fictitious stories, so
that he could "justify" giving the neophytes harder
blows, all in the context of fraternity initiation and
role playing. Even one of the neophytes admitted
that the accusations were untrue and made-up.
Dizon's behavior must not be automatically viewed
as evidence of a genuine, evil motivation to kill
Lenny Villa.
The existence of animus iniuriandi or
malicious intent to injure not proven beyond
reasonable doubt
Indeed, the threshold question is whether the
accused's initial acts of inflicting physical pain on
the neophytes were attended by animus iniuriandi
amounting to a felonious act punishable under the
Revised Penal Code, thereby making it subject to
Article 4(1) thereof. In People v. Regato, we ruled that
malicious intent must be judged by the action,
conduct, and external acts of the accused. What
persons do is the best index of their intention. We
have also ruled that the method employed, the kind
of weapon used, and the parts of the body on
which the injury was inflicted may be determinative
of the intent of the perpetrator.
XXX We are constrained to rule that the specific
animus iniuriandi was not present in this case. Even
if the specific acts of punching, kicking, paddling,
and other modes of inflicting physical pain were
done voluntarily, freely, and with intelligence,
thereby satisfying the elements of freedom and
intelligence in the felony of physical injuries, the
fundamental ingredient of criminal intent was
not proven beyond reasonable doubt. On the
contrary, all that was proven was that the acts
were done pursuant to tradition. Although the
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additional "rounds" on the second night were held
upon the insistence of Villareal and Dizon, the
initiations were officially reopened with the
consent of the head of the initiation rites; and the
accused fraternity members still participated in the
rituals, including the paddling, which were
performed pursuant to tradition. Other than the
paddle, no other "weapon" was used to inflict
injuries on Lenny. The targeted body parts were
predominantly the legs and the arms. The
designation of roles, including the role of
auxiliaries, which were assigned for the specific
purpose of lending assistance to and taking care of
the neophytes during the initiation rites, further
belied the presence of malicious intent. All those
who wished to join the fraternity went through the
same process of "traditional" initiation; there is no
proof that Lenny Villa was specifically targeted or
given a different treatment. We stress that
Congress itself recognized that hazing is uniquely
different from common crimes. The totality of the
circumstances must therefore be taken into
consideration.
The underlying context and motive in which the
infliction of physical injuries was rooted may also
be determined by Lenny's continued participation
in the initiation and consent to the method used
even after the first day.
The accused fraternity members guilty of
reckless imprudence resulting in homicide
There was patent recklessness in the hazing of
Lenny Villa.
According to the NBI medico-legal officer, Lenny
died of cardiac failure secondary to multiple
traumatic injuries. The officer explained that
cardiac failure refers to the failure of the heart to
work as a pump and as part of the circulatory
system due to the lack of blood. In the present
case, the victim's heart could no longer work as a
pumping organ, because it was deprived of its
requisite blood and oxygen. The deprivation was
due to the "channeling" of the blood supply from
the entire circulatory system - including the heart,
arteries, veins, venules, and capillaries - to the
thigh, leg, and arm areas of Lenny, thus causing the
formation of multiple hematomas or blood clots.
The multiple hematomas were wide, thick, and
deep, indicating that these could have resulted
mainly from injuries sustained by the victim from
fist blows, knee blows, paddles, or the like.
Repeated blows to those areas caused the blood to
gradually ooze out of the capillaries until the
circulating blood became so markedly diminished
as to produce death. The officer also found that
the brain, liver, kidney, pancreas, intestines, and all
other organs seen in the abdominals, as well as the
thoracic organ in the lungs, were pale due to the
lack of blood, which was redirected to the thighs
and forearms. It was concluded that there was
nothing in the heart that would indicate that the
victim suffered from a previous cardiac arrest or
disease.
The multiple hematomas or bruises found in
Lenny Villa's arms and thighs, resulting from
repeated blows to those areas, caused the loss of
blood from his vital organs and led to his eventual
death. These hematomas must be taken in the light
of the hazing activities performed on him by the
Aquila Fraternity. According to the testimonies of
the co-neophytes of Lenny, they were punched,
kicked, elbowed, kneed, stamped on; and hit with
different objects on their arms, legs, and thighs.
They were also "paddled" at the back of their
thighs or legs; and slapped on their faces. They
were made to play rough basketball. Witness
Marquez testified on Lenny, saying: "[T]inamaan
daw sya sa spine." The NBI medicolegal officer
explained that the death of the victim was the
cumulative effect of the multiple injuries suffered
by the latter.
Consequently, the collective acts of the fraternity
members were tantamount to recklessness, which
made the resulting death of Lenny a culpable
felony. It must be remembered that organizations
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owe to their initiates a duty of care not to cause
them injury in the process. With the foregoing
facts, we rule that the accused are guilty of reckless
imprudence resulting in homicide. Since the NBI
medico-legal officer found that the victim's death
was the cumulative effect of the injuries suffered,
criminal responsibility redounds to all those who
directly participated in and contributed to the
infliction of physical injuries.
Our finding of criminal liability for the felony of
reckless imprudence resulting in homicide
shall cover only accused Tecson, Ama,
Almeda, Bantug, and Dizon. Had the Anti-
Hazing Law been in effect then, these five accused
fraternity members would have all been convicted
of the crime of hazing punishable by reclusion
perpetua (life imprisonment). Since there was no law
prohibiting the act of hazing when Lenny died, we
are constrained to rule according to existing laws at
the time of his death. The CA found that the
prosecution failed to prove, beyond reasonable
doubt, Victorino et al.'s individual participation in
the infliction of physical injuries upon Lenny Villa.
As to accused Villareal, his criminal liability was
totally extinguished by the fact of his death,
pursuant to Article 89 of the
Revised Penal Code. [end]
Prosec G: re Villareal: the SC said there was no
intent to kill. Hence only reckless imprudence
resulting to homicide, because: The inititation rites
was just a tradition, they and their parents knew
that there will be initiostion, and there is no anti-
hazing law at the time. Now, there is a law against
hazing.
A was walking. Then here comes B with a lead
pipe and hit the head of A with it. B hit it hard and
thereafter ran away. A went to the hospital,
however, based on the medical certificate no
injury whatsoever was sustained by the head of
A. So there was no injury. Nevertheless, A filed a
case for attempted homicide against B. Therefore,
intent to kill is incumbent to be proven by the
prosecution because the case filed is attempted
homicide. Will B be held liable for attempted
homicide? Was there intent to kill?
There was no intent to kill. Intent to kill is
determined by the following factors:
1. The nature and number of the weapon used
by the offender in the commission of the
crime
2. The nature, number and location of wounds
inflicted/sustained by the victim
3. The manner of committing the crime
4. The acts, deeds or words stated by the
offender before, during or immediately after
the commission of the crime
5. Proof of the victim (?)
Let us apply this in the case - B hit A with a lead
pipe. Was there motive?
>In the problem, there was no motive.
Nature and number of weapon used?
>B used a lead pipe.
Nature, number and location of wound inflicted
on the victim?
>The victim did not sustain any wound despite
the fact that it was hit with a lead pipe.
Manner of committing the crime.
>After hitting A once, B ran away. If he had
intended to kill the victim, he would have hit A
several times.
Act, deeds and words made by the offender
before, during or after the commission of the
crime.
>He just saw the victim, hit the victim thereafter
ran away. All of these would show there was no
intent to kill on the part of said offender.
Therefore, B should not be convicted of attempted
homicide.
People v. Mapalo
SC convicted him only of ill treatment of another
by deed, a form of slight physical injury. Ill
treatment of another by deed is the circumstance
wherein a person was hit or there was injury
caused to the person but there was no (?may
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umubo sa class at nasapawan boses ni Ma'am o.O) from their house at 10oclock in the evening. A
neighbor said, he saw X Y and Z on board in the
On the other hand, how is motive proved? same jeepney with the victim. Another neighbor
>Motive is proved by the testimony of the appeared and made a statement, he said, he saw X
witnesses as to the acts or statements made by Y and Z having a heated argument with the victim
the accused before or immediately after the about 5 meters away from where the victim was
commission of the crime. found dead.
Ex. Before the killing of A, a witness saw B  Here motive is material to determine the
threatening to kill A. Therefore, B would have the criminal liability of the offender because since
motive because of his acts prior to the no one has seen, there was no eye witness to
commission of the crime. Or right after the killing the commission of the crime, proof is done
of A, a witness saw B running away from the scene solely by circumstantial evidence.
of the crime laughing saying "finally, I have my
revenge" there is the motive. So here motive is Who has motive to kill the victim?
established by the acts or statements made by the
accused prior to or after the commission of the  Based on circumstantial evidence, X Y and Z
crime. had the motive to kill the victim.
NOT DURING because in motive, there is no direct The victim was found lying at the staircase of the
evidence. The witness did not see how the crime
house, when the wife arrived, the victim told the
was committed.
wife that “it was PEDRO who killed me” and
You don't need proof of motive if the crime thereafter, he died. There were 3 Pedros in the
committed is an act malum prohibitum. As a general area. Who is the Pedro that should be charged? A
rule motive is immaterial to prove the criminal witness said, he saw PEDRO-A arguing with the
liability of the offender. victim in front the house and he saw PEDRO-A
entered the house of the victim. Therefore, motive
There are however instances when motive is is material to determine the criminal liability of the
material to determine the criminal liability of the offender because there is doubt to the identity of
offender. They are - the offender.
1. When the acts of the offender would result to INTENT MOTIVE
variant crimes moving power
which impels a
2. When the identity of the offender is doubtful
person to do a
3. When the prosecution only has circumstantial use of a particular
specific act to
evidence to prove the commission of the means to achieve a
achieve the desired
crime. desired result
result, therefore it is
In these 3 instances, proof of motive becomes the reason behind
material to determine the criminal liability of the intent
offender. a material element immaterial to
in determining the determine the
criminal liability of criminal liability of
The victim was found on a vacant lot. He has 5 the accused the offender
stab wounds. He was already dead. With 5 fatal established/proven established by the
stab wounds. No one saw who stabbed the victim. by the overt act of acts/statements
But the mother said, X Y and Z fetched the victim the offender or by made by the accused

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the means employed prior to or
immediately after
the commission of
the crime
What negates criminal intent? What may be a
defense against criminal intent?
>it is mistake of fact.
MISTAKE OF FACT (MOF) - is the
misapprehension of facts on the person who
caused injury to another
If a person acted under MOF, he is absolved of
criminal liability because he acted without
criminal intent. That is, had the facts been as he
believed them to be, his act done would have been
lawful and justifiable.
Before one may be absolved of criminal liability
for having acted under MOF, the following are
elements:
1. That the act done would have been lawful
and justifiable had the facts been as the
accused believed them to be
 had it been as he believed, the act performed
would've amounted to a justifying or
exempting circumstance
2. That the intention of the accused in doing
the act must be lawful
 he must be ignited by a noble or lawful or
justifiable intent
3. That the mistake must be without fault,
negligence, careless on the part of the
offender
the offender cannot be negligent in
ascertaining the true facts of the case and at
the same time invoke MOF
*MOF although a defense in intentional felony
cannot be a defense in culpable felony
US v. Ah Chong, G.R. No. 5272, 19 March 1910
Facts: Ah Chong was employed as a cook in
Officer’s Quarters, No. 27 at Fort McKinley, Rizal
Province. He and his fellow servant, the victim
Pascual Gualberto, sleep in a small room at the rear
of the building. The door had no permanent lock,
so they attached a small hook inside the door, and
reinforced it by placing a chair against the door.
One evening, Ah Chong was suddenly awakened
by someone trying to force open the door of the
room. He called out and asked twice who was
there, but got no answer. The noises he heard
convinced him that the door was being opened,
and with the room very dark, Ah Chong feared that
the intruder was a robber or a thief, leapt to his feet
and called out that he will kill the intruder if he
enters the room. At that moment he was struck
above the knee by the edge of the chair, but in the
darkness and confusion he thought that the blow
was inflicted by the intruder. Seizing a kitchen
knife he kept under his pillow, Ah Chong struck
out wildly at the intruder, who turned out to be
Pascual. Pascual died from the stab wounds.
Ah Chong was charged with the crime of
assassination, and the trial court found him guilty
of homicide. During trial he admitted killing
Pascual, but insisted that he acted in self-defense.
Issue: Whether Ah Chong can be held criminally
liable.
Ruling:
In broader terms, ignorance or mistake of fact, if
such ignorance or mistake of fact is sufficient to
negative a particular intent which under the law is
a necessary ingredient of the offense charged (e. g.,
in larceny, animus furendi; in murder, malice;
in crimes and misdemeanors generally some
degree of criminal intent) "cancels
the presumption of intent," and works an
acquittal; except in those cases where the
circumstances demand a conviction under
the penal provisions touching criminal
negligence; and in cases where, xxx one
voluntarily committing a crime or misdemeanor
incurs criminal liability for any wrongful act
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committed by him, even though it be different
from that which he intended to commit. [end]
US v. Ah Chong
Ah Chong was acquitted because he acted under
mistake of fact. [M'Garcia: BUT that was because
the case was decided a long time ago. If the case
is decided now, I doubt if there will be an
acquittal. Let's go by the elements: 2 nd and 3rd
elements are present.
However, the 1st element is wanting - that the act
done would have been lawful and justifiable had
the facts been as the accused believed them to be -
the victim was only trying to enter. Will that act
already constitute unlawful aggression?
>No. There is no unlawful aggression because
there was no imminent or immediate danger on
the life and property of the said offender. 1 st
element is wanting.]
The police officers A, B and C were dining in a
restaurant when they noticed a group of men who
are so noisy. And so A looked at them and noticed
that one of them, X had a gun tucked on his waist.
So A went on the back of X and told him "I can see
that you have a gun tucked on your waist. Do you
have a license? I'm a police officer." X said "Yes sir,
I have a license." And A said "Show me your
license." So X stood up and he tried to get his
wallet from his pocket in order to show his
license as requested by A. As he was picking his
wallet, he was turning around to look at A. The
moment he faced A, A shot him. X died.
Prosecuted for homicide, A said he acted under
MOF. He thought, what X was picking was his gun
and that he would be shot by X. Therefore, in self-
defense he shot X first. Will his defense of MOF lie
in his favor?
1st element: wanting. Granting for argument that
what X was picking was the gun, will it constitute
unlawful aggression such that self-defense would
lie? NO, because the gun was not yet pointed at A,
it will not yet bring an immediate danger on the
life
2nd element: present. Let's say that A has the
good intention.
3rd element: wanting. A was negligent, there was
fault or carelessness on his part in ascertaining
the true facts of the case. He was asking for the
license and X said he has one. Definitely, what
would be shown to him would be the license not
the gun.
Therefore, since 2 elements are absent, A cannot
invoke MOF and he should be convicted for
homicide for killing X.
It was around 12o’clock at midnight. The security
guard was already very sleepy when he heard a
noise. He saw 2 persons jumped inside the
premises he is guarding. He called on these 2
persons, but these 2 persons did not mind the
security guard. These 2 persons were armed with
guns, long firearms. And so the he followed them,
opened the warehouse and the lights. Since the
door was open, there was a guy coming from a
room, and the security guard saw a shadow of a
man pointing a gun at him. And so the security
guard fired at the said man, and the man died. It
turned out that the man was not among those
persons who jumped but rather, he was a worker
in the said warehouse who slept there without
permission.
He was prosecuted. Security guard said he acted
under mistake of fact. Was there mistake of fact on
the part of the offender?
1. That the act would have been lawful and
justifiable had the facts been as the accused
believed them to be
 Had the facts been that the man who jumped
was pointing a gun at him. Then the security
guard is justified to shoot the said person.
2. The intention of the security guard was lawful.
3. The mistake was without fault and negligence.
 The said person didn’t ask for permission to
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sleep there. As the security guard believed,
there was no person inside. There was no fault
and negligence in ascertaining the true facts of
the case.
Therefore, the security guard must be acquitted
because he acted under Mistake of Fact.
Yapyuco v. Hon. Sandiganbayan & People,
G.R. Nos. 120744-46, 25 June 2012
Facts: Three informations for murder, frustrated
murder and multiple counts of attempted murder
were filed before the Sandiganbayan against
petitioners Yapyuco, Jr., Cunanan, Jr., Puno
(members of the police); Pamintuan and Reyes
(Brgy. Captains of Quebiawan and Del Carmen,
Pampanga); Puno, Reyes, Manguerra, David,
Lugtu, Lacson, Yu, and Pablan (either members of
the Civil Home Defense Force or civilian volunteer
officers in their barangays), in connection with a
shoot-out which resulted in the death of Licup and
injuries to Villanueva.
One evening, Villanueva, Licup, and four other
companions were leaving the house of Salangsang
as guests at the barrio fiesta celebrations.
Villanueva was driving the Tamaraw jeepney at 5-10
KPH with his headlights dimmed, Licup was in the
passenger seat while the rest were at the back. As
they were traversing a left curve on the road, they
were suddenly met with gunfire. The shots
originated from Yapyuco, et al., who were
positioned on the front yard of Naron’s residence,
which was on the right side of the road right after
the curve. The bullets penetrated the Tamaraw’s
passenger side and hit Villanueva and Licup. The
latter subsequently died as a result.
Only Yapyuco, Jr. testified for the defense. He
alleged that Pamintuan, thru David, sought police
assistance concerning the reported presence of
NPA members in Quebiawan. Paminutan sought
the help of barangay captain Reyes, who brought a
number of armed men, and that there were Cafgu
members at the Naron residence. When the
Tamaraw driven by Villanueva drew closer,
Pamintuan announced that it was the target
vehicle; thus Yapyuco, Cunanan and Puno took
post in the middle of the road. Yapyuco signaled at
the Tamaraw to stop, but as the latter did
accelerated to the left instead, the police fired a
warning shot. The Tamaraw still went forward,
hence the police were impelled to shoot its tires.
Instantaneously, gunshots from Naron’s yard hit
the Tamaraw.
The Sandiganbayan found that Yapyuco, et al. were
guilty as co-principals for homicide for the death
of Licup and attempted homicide for the injury
sustained by Villanueva, and acquitted them of
attempted murder for the rest of Licup and
Villanueva’s companions. It held that the acts
Yapyuco, et al. performed preparatory to the
shooting demonstrated a clear intent to kill the
occupants of the Tamaraw.
The Sandiganbayan also held that the theory of
mistaken belief could not likewise benefit
Yapyuco, et al. because there was supposedly no
showing that they had sufficient basis or probable
cause to rely fully on Pamintuan’s report that the
victims were armed NPA members, and they have
not been able by evidence to preclude ulterior
motives or gross inexcusable negligence when they
acted as they did.
Issue: Whether Yapyuco, et al. were not liable due
to mistake of fact.
Ruling: Petitions DENIED.
The invocation of the concept of mistake of
fact faces certain failure. In the context of
criminal law, a “mistake of fact” is a
misapprehension of a fact which, if true, would
have justified the act or omission which is the
subject of the prosecution. Generally, a reasonable
mistake of fact is a defense to a charge of crime
where it negates the intent component of the
crime. It may be a defense even if the offense
charged requires proof of only general intent. The
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inquiry is into the mistaken belief of the defendant,
and it does not look at all to the belief or state of
mind of any other person.
A proper invocation of this defense requires
(a) that the mistake be honest and reasonable;
(b) that it be a matter of fact; and
(c) that it negate the culpability required to
commit the crime or the existence of the
mental state which the statute prescribes
with respect to an element of the offense.
The justification of an act, which is otherwise
criminal on the basis of a mistake of fact, must
preclude negligence or bad faith on the part of
the accused.
This brings us to whether the guilt of petitioners
for homicide and frustrated homicide has been
established beyond cavil of doubt. Xxx The
prosecution is burdened to prove corpus delicti
beyond reasonable doubt either by direct evidence
or by circumstantial or presumptive evidence.
Corpus delicti consists of two things: first, the
criminal act and second, defendant's agency in the
commission of the act. xxx Proof of homicide or
murder requires incontrovertible evidence, direct
or circumstantial, that the victim was deliberately
killed (with malice), that is, with intent to kill. Such
evidence may consist in the use of weapons by the
malefactors, the nature, location and number of
wounds sustained by the victim and the words
uttered by the malefactors before, at the time or
immediately after the killing of the victim. If the
victim dies because of a deliberate act of the
malefactors, intent to kill is conclusively
presumed. In such case, even if there is no
intent to kill, the crime is homicide because
with respect to crimes of personal violence, the
penal law looks particularly to the material
results following the unlawful act and holds
the aggressor responsible for all the
consequences thereof. Evidence of intent to kill
is crucial only to a finding of frustrated and
attempted homicide, as the same is an essential
element of these offenses, and thus must be
proved with the same degree of certainty as that
required of the other elements of said offenses.
In the instant case, Yapyuco, et al., without
abandoning their claim that they did not intend to
kill anyone of the victims, admit having willfully
discharged their service firearms; and the manner
by which the bullets concentrated on the passenger
side of the jeepney permits no other conclusion
than that the shots were intended for the persons
lying along the line of fire. Xxx The rule is that in
ascertaining the intention with which a specific act
is committed, it is always proper and necessary to
look not merely to the act itself but to all the
attendant circumstances so far as they develop in
the evidence.
The firearms used by petitioners were either M16
rifle, .30 caliber Garand rifle or .30 caliber carbine.
While the use of these weapons does not always
amount to unnecessary force, they are nevertheless
inherently lethal in nature. At the level the bullets
were fired and hit the jeepney, it is not difficult to
imagine the possibility of the passengers thereof
being hit and even killed. It must be stressed that
the subject jeepney was fired upon while it was
pacing the road and at that moment, it is not as
much too difficult to aim and target the tires
thereof as it is to imagine the peril to which its
passengers would be exposed even assuming that
the gunfire was aimed at the tires – especially
considering that petitioners do not appear to be
mere rookie law enforcers or unskilled neophytes
in encounters with lawless elements in the streets.
Thus, judging by the location of the bullet
holes on the subject jeepney and the firearms
employed, the likelihood of the passenger next
to the driver – and in fact even the driver
himself – of being hit and injured or even killed
is great to say the least, certain to be precise.
This, we find to be consistent with the uniform
claim of Yapyuco, et al. that the impulse to fire
directly at the jeepney came when it occurred to
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them that it was proceeding to evade their ACTS MALA PROHIBITA
authority. And in instances like this, their natural  Acts which are only wrong because there is a
and logical impulse was to debilitate the vehicle by law that prohibits and penalizes it
firing upon the tires thereof, or to debilitate the  Not inherently wrong
driver and hence put the vehicle to a halt. The  e.g. illegal possession of unlicensed firearms
evidence we found on the jeepney suggests that
ACTS MALA IN SE
petitioners’ actuations leaned towards the latter.
 Acts which are inherently evil or wrong
 Wrong per se, even if there's not law, it
This demonstrates the clear intent of
is evil e.g. killing another, taking the
petitioners to bring forth death on Licup who
thing of another
was seated on the passenger side and to
MALA IN SE MALA PROHIBITA
Villanueva who was occupying the wheel,
together with all the consequences arising Inherently evil, Not inherently evil
from their deed. The circumstances of the wrong per se or wrong
shooting breed no other inference than that the Criminal liability is Criminal liability is
firing was deliberate and not attributable to based on the intent based on the mere
sheer accident or mere lack of skill. or morality of the doing of the
offender prohibited act
Verily, the shooting incident subject of these Good faith/lack of Good faith/lack of
petitions was actualized with the deliberate intent criminal intent is a criminal intent is not
of killing Licup and Villanueva, hence we dismiss valid defense a valid defense
Yapyuco’s alternative claim in G.R. No. 120744
that he and his co-petitioners must be found guilty Modifying Modifying
merely of reckless imprudence resulting in circumstances such circumstances are
homicide and frustrated homicide. Here is why: as mitigating and not considered in the
aggravating are imposition of
First, the crimes committed in these cases are not considered by the penalty UNLESS
merely criminal negligence, the killing being court in the otherwise provided
intentional and not accidental. In criminal imposition of by the special penal
penalty law
negligence, the injury caused to another should be
unintentional, it being the incident of another act Degree of the Degree of
performed without malice. participation of the participation by the
offender (principal, offender not
Second, that petitioners by their acts exhibited accomplice or considered all
conspiracy, as correctly found by the accessory) is perpetrators of the
Sandiganbayan, likewise militates against their considered in the act are punished
claim of reckless imprudence. [end] imposition of the equally
penalty
Can a crime be committed without criminal Stage (attempted, The only stage
intent? frustrated or considered is the
Yes. There are 2 instances. consummated) is consummated stage.
1. Culpable Felony taken into No attempted or
2. When the crime is in violation of special consideration in the frustrated stage.
penal laws imposition of
penalty

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**Not all acts punishable by special penal laws are
mala prohibita!! There are some special penal
laws which punish acts mala in se.
e.g. plunder is a special penal law yet the SC said
plunder is malum in se. criminal intent matters.
Garcia v. CA
Garcia was the head of the board of canvassers.
The number of votes of Sen. Pimentel was
decreased. In decreasing the number of votes, the
said votes were not added to any candidate. So it
did not favor any candidate. So according to him,
he acted in good faith, no criminal intent. But
according to the other side, it is a special penal
law, therefore they should be held criminally
liable. What did the SC say?
>The act of decreasing or increasing a candidate's
vote although punished by special penal law is a
malum in se. it is inherently evil or wrong.
What about in this case, it is a malum in se. And
Garcia and company said, they acted in good faith,
they were already so tired, because of the
counting. So how come they were still convicted?
>According to the SC: They should exercise
extraordinary diligence in the counting of the
votes. Hence, they are still held criminally liable.
The defense of good faith would not lie in their
favor as board of canvassers.
Garcia v. CA & People, G.R. No. 157171, 14
March 2006
Facts: Garcia was Chairman of the Board of
Canvassers for the 1995 Elections in Alaminos,
Pangasinan. She, along with other members of the
board of canvassers were charged before the RTC
of Alaminos with violation of Sec. 27(b) of R.A.
6646 for decreasing the votes of the complainant,
senatorial candidate Aquilino Pimentel, Jr.
Pimentel received 6,1921 votes, but the Statement
of Votes reflected only 1,921. The RTC convicted
only Garica and acquitted the rest of the accused.
The CA affirmed the RTC. Garcia claims that there
was no motive on her part to reduce Pimentel’s
votes.
Issue: Whether good faith and lack of criminal
intent a valid defense for a violation of Sec. 27(b),
R.A. 6646.
Ruling: Petition DENIED.
Generally, mala in se felonies are defined and
penalized in the Revised Penal Code. When the
acts complained of are inherently immoral, they are
deemed mala in se, even if they are punished by a
special law. Accordingly, criminal intent must be
clearly established with the other elements of the
crime; otherwise, no crime is committed. On the
other hand, in crimes that are mala prohibita, the
criminal acts are not inherently immoral but
become punishable only because the law says they
are forbidden. With these crimes, the sole issue is
whether the law has been violated. Criminal intent
is not necessary where the acts are prohibited for
reasons of public policy.
Clearly, the acts prohibited in Section 27(b) are
mala in se. For otherwise, even errors and mistakes
committed due to overwork and fatigue would be
punishable. Given the volume of votes to be
counted and canvassed within a limited amount of
time, errors and miscalculations are bound to
happen. And it could not be the intent of the law
to punish unintentional election canvass errors.
However, intentionally increasing or decreasing the
number of votes received by a candidate is
inherently immoral, since it is done with malice and
intent to injure another.
Criminal intent is presumed to exist on the part of
the person who executes an act which the law
punishes, unless the contrary shall appear. Thus,
whoever invokes good faith as a defense has the
burden of proving its existence.
There is a noticeable discrepancy in the addition
of the subtotals to arrive at the grand total of
votes received by each candidate for all 159
precincts in SOV No. 008423. The grand total of
the votes for Senator Aquilino Pimentel, was only
1,921 instead of 6,921, or 5,000 votes less than
the number of votes private complainant actually
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received.
During trial of this case, Garcia admitted that she
was indeed the one who announced the figure of
1,921, which was subsequently entered by then
accused Viray in his capacity as secretary of the
board. Garcia likewise admitted that she was the
one who prepared the COC, though it was not her
duty. To our mind, preparing the COC even if it
was not her task, manifests an intention to
perpetuate the erroneous entry in the COC.
Neither can this Court accept petitioner's
explanation that the Board of Canvassers had no
idea how the SOV and the COC reflected that
private complainant had only 1,921 votes instead
of 6,921 votes. As chairman of the Municipal
Board of Canvassers, Garcia’s concern was to
assure accurate, correct and authentic entry of the
votes. Her failure to exercise maximum efficiency
and fidelity to her trust deserves not only censure
but also the concomitant sanctions as a matter of
criminal responsibility pursuant to the dictates of
the law [end].
An act mala in se CANNOT absorb an act mala
prohibita, and vice versa:
Loney, et al. v. People, G.R. No. 152644, 10
February 2006 [Marcopper]
Facts: Petitioners Loney, Reid, and Hernandez are
the officers of Marcopper Mining Corporation
(Marcopper), a mining corporation mining in
Marinduque. One day, the tailings Marcopper
stores gushed out from its tailings pit and into the
Boac and Makanlupit rivers.
The DOJ separately charged Loney, et al. before
the MTC of Boac, Marinduque with violations of
the Water Code of the Philippines, the National
Pollution Control Decree of the Philippines (PD
984), the Philippine Mining Act of 1995, and Art.
365 of the RPC for reckless imprudence resulting
to damage to property. Loney, et al. moved to
quash the informations as they charged more than
one offense for a single act.
The MTC quashed the informations for violation
of the Water Code and the Pollution Control
Decree, and maintained the informations for
violation of the Mining Act and the RPC. The RTC
Boac set aside the quashal of the MTC and ordered
the reinstatement of all the charges. The CA
affirmed the RTC
Issue: Whether all the charges filed against
petitioners except one should be quashed for
duplicity of charges and only the charge for
Reckless Imprudence Resulting in Damage to
Property should stand.
Ruling: Petition Denied. CA decision affirmed.
There is duplicity (or multiplicity) of charges
when a single Information charges more than
one offense.
Xxx On petitioners' claim that the charge for
violation of Article 365 of the RPC "absorbs" the
charges for violation of PD 1067, PD 984, and RA
7942, suffice it to say that a mala in se felony
(such as Reckless Imprudence Resulting in
Damage to Property) cannot absorb mala
prohibita crimes (such as those violating PD
1067, PD 984, and RA 7942). What makes the
former a felony is criminal intent (dolo) or
negligence (culpa); what makes the latter
crimes are the special laws enacting them.
[end]
X killed B with the use of motor vehicle. X hit and
bumped B. X was charged with murder. So the
information charges an intentional felony of
murder. Trial on merits ensued, after the
prosecution presented evidence, the defense
presented evidence.
The defense was able to show, to prove beyond
reasonable doubt that the reason for the said act
of killing B was because X lost control of his brake.
Therefore, according to them, there was only
imprudence and so X should only be held liable
for reckless imprudence resulting in homicide.
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The judge believed the defense. So in an
information for an intentional felony of murder,
the said court convicted X only of reckless
imprudence resulting in homicide, a culpable
felony.
Is the judge correct? Can the judge convict a
person of a culpable felony in an information that
charges him of intentional felony?
>Yes. The reason is that a culpable felony is
necessarily included in an intentional felony
because a culpable felony is of lesser offense than
that of intentional felony.
*A malum prohibitum is not necessarily included
in malum in se. Therefore, one cannot absorb the
other. But a culpable felony [may be included in]
an intentional felony.
Art. 4. Criminal liability. — Criminal liability
shall be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different
from that which he intended.
2. By any person performing an act which would
be an offense against persons or property,
were it not for the inherent impossibility of its
accomplishment or on an account of the
employment of inadequate or ineffectual
means.
Proximate Cause Doctrine (PCD)
By any person committing a felony (delito) although
the wrongful act done be different from that which he
intended.
Elements (Garcia v. People)
1. The intended act is a felonious act
2. The resulting act is a felony
3. The resulting act is the direct, natural and
logical consequence of the felonious act of the
offender
Therefore, for one to be criminally liable under
the PCD, it is necessary that the offender is
performing a felonious act and since he is
performing a felonious act, he becomes liable for
all the resulting crime although different from
that which he intended. Provided that the
resulting felony is the direct, natural and logical
consequence of his felonious act. Otherwise
stated, his felonious act must be the proximate
cause of the resulting felony.
For one to be criminally liable under the PCD, it is
not necessary that the offender should have even
touch the body of the victim. It suffices that the
felonious act performed by the offender has
generated in the mind of the victim, fear for his
life. By reason of that fear for his life the victim
performed acts, made risk that injured himself.
The accused will become criminally liable.
PROXIMATE CAUSE (PC) - the cause that sets in
to motion all other causes and which unbroken by
efficient intervening cause produces the felony
without which the felony would have not been
committed. Therefore, for one to be criminally
liable under the PCD, it is necessary that the
felonious act and the resulting felony must not be
broken by any efficient intervening cause. No
efficient or supervening intervening cause must
have broken the causal connection between the
felonious act of the offender and the resulting
felony.
EFFICIENT INTERVENING CAUSE (EIC) - an
active force which is a distinct act absolutely
foreign from the felonious act of the offender.
Therefore, in order that an act is considered an
EIC, it is necessary that it is totally foreign from
the felonious act that is performed by the
offender.
PC is not always the immediate cause. At times it
may be a remote cause.
Ex. A was driving his car along SLEX followed by
B, by C, by D, by E. When A reached the tollgate, he
stopped to pay the toll, so B stopped as well as C
and D. E however was very sleepy, he did not put
to stop so he hit D, D hit C, C hit B, B hit A. Because
of the impact the car of A sustained serious
damage.
Q: What is the PC of the damage sustained by the
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car of A?
 The PC was E because it was the car of E which
sets into motion all other cars to bump each
other. It was not the immediate cause because
the immediate cause was the car of B because
it is the car of B which hit the car of A. So a PC
is not always the immediate cause, at times it
may be the remote cause.
Ex. A bus was going to Quezon, suddenly 4 men
boarded a bus, 2 mean seated at front seats and
the other 2 seated at back. While they were
traversing a zigzag portion on the road, the 4 men
stood up and announced a hold up. One
passengers was so afraid of holdupper as he had
a previous experience of holduppers. He was so
afraid that he opened a window and he jumped
out of a window, he fell on a cliff and he died.
Q: Are the holduppers liable for the death of the
passenger?
 Yes. The holduppers in announcing a holdup
are committing a felonious act. The resulting
act was a felony, the resulting felony was the
direct, natural and logical consequence of the
felonious act of the offenders. Were it not for
the holduppers announcing a hold up, there
would be no fear on the mind of the passenger.
But because of the announcement, there was
fear on the mind of passenger and by reason
of that fear, he made risk that caused his
death. The holduppers are liable for robbery
with homicide because they are liable for the
death of the passenger.
Ex. X was having a siesta on the terrace of their
house on a rocking chair. Suddenly he was
awakened by the noise of the children. He found
out that it was coming from the backyard of their
house, saw 4 boys harvesting his mango tree. So
he told the boys to come down the tree, otherwise,
he will be calling the police and let them be
arrested. The boys hurriedly went down the tree.
One boy from the top most portion of the tree
jumped down and his head hit a big stone. He
suffered hemorrhage, thereafter he died.
Q: Is X criminally liable for the death of the boy?
First element, the intended act is a felonious act.
He was not committing a felonious act. He was
just acting his right when he said he will call the
police considering that the boys were taking his
mangoes, they were committing theft. Therefore,
he was just acting within his right. Since X was not
committing a felonious act, he cannot be held
criminally liable for the resulting felony.
So if you are given a problem, the first thing you
should do is to determine if the person is
committing a felonious act. If not, a person
cannot be held liable for the resulting felony. If he
is, then he is liable for the resulting felony.
In the same case, X told the boys, if you will not
come down I have here my shotgun, I will shoot
each one of you and he fired shots in the air. The
boys were so afraid and hurriedly went down, one
of them jumped, fell and suffered serious physical
injuries because of his broken legs.
Is X criminally liable for the injuries sustained by
the boy?
> Yes. Because this time he was committing a
felonious act. He was threatening to shoot the
children. It is a felonious act amounting to grave
threats. Therefore, this time he is criminally liable
for the resulting felony although different from
that which he intended.
A and B, they are bf and gf. The bf promised to
_________marry B at night. But B waited in vain,
A did not arrive. Instead she only received a text
message saying that A would not be able to come,
A could not marry B because A is already a married
man with 5 children. So B became so sad.
Frustrated, she began crying terribly and went out
of the house, walked on the streets, not on her
own rightful self. She fell on a canal and she died.
Is A the bf, then author of the death of the said
victim? In the first place, the bf, when he divulged
that he is a married man and could not marry the
girl is NOT committing a felonious act. Since in
the first place he is not committing a felonious act,
therefore, he cannot be liable for any resulting
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felony. As such, he cannot be liable for the death
of the said girl.
Same problem, but with added facts. So this time,
when the girl learned that the man could not marry
her. She went on the top most portion of the
building, decided to commit suicide to take her
own life. She jumped. However, as she was falling,
she fell on a child. The girl was saved but the child
was pinned down and died.
Is A the bf liable for the death of the child? How
about the woman, is the woman liable for the death
of the child?
Again, the man is not liable. He was not
performing any felonious act, therefore he is not
liable for any resulting felony.
How about the said woman?
When the said woman was committing suicide, she
was not committing a felonious act, because
suicide is not a felony either the RPC or any special
penal law in PH jurisdiction. It is not a felonious
act.
However, in performing said lawful act, she did not
do so with due care. Since she did not do so with
due care. Since she did not do so with due care, she
becomes liable for a CULPABLE FELONY.
So here there is a simple negligence on the part of
the said woman, therefore, the said woman may be
held liable for simple negligence resulting to
homicide for the death of the said child. Although
she was performing a lawful act, she did not do so
with due care, she caused an injury by an accident
on the part of the offended party. Hence she can
be liable for simple negligence resulting to
homicide.
For one to be criminally liable under the PCD it is
necessary that there is no efficient intervening
cause that has broken the chain between the
felonious act and the resulting felony.
Urbano vs. IAC
A case cited in People vs. Villacorta
Urbano and Villacorta were both not convicted of
homicide. The 2 cases have almost similar facts.
People vs. Villacorta
January 23, 2002, there was a stabbing incident.
Cruz was stabbed by Villacorta on the left side of
his body with a sharpened bamboo stick. He was
brought to the Tondo Medical Center. He was
released on the very same day as outpatient
because his wound was not fatal. February 14,
2002 he was brought to San Lazaro Hospital. He
was already suffering from tetanus infection. A
day after February 15 he died.
The cause of his death was tetanus infection.
Villacorta was prosecuted for the crime of
homicide for the death of Cruz. The lower court
convicted him.
SC: Citing the Urbano case, he cannot be convicted
of the crime of homicide. Based on the expert
testimony of the doctor, the incubation period of
the tetanus virus is within 14 days. In the case, it
took the victim 22 days before he died. Therefore
the stab wound was without tetanus virus. Cruz
may have performed acts which brought about
the tetanus virus. The stabbing was only a remote
cause and the tetanus infection was the
proximate infection which brought about the
death of the victim.
So Villacorta was only convicted of slight physical
injuries because they were not able to prove
intent to kill. First, no evidence of motif. Second
nature and number of weapon used. A sharpened
bamboo stick, not even a little weapon made of
metal. Third, the nature, number and location of
wound. It was only on the left side of the body.
Fourth, manner of committing the crime. After
one stabbing, there was no more. So from
homicide, he was only convicted of slight physical
injury punished by the lowest penalty arresto
menor, 1-30days or fine of not more than P200.
Urbano vs. IAC
Javier was hacked by Urbano on his right palm.
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Javier suffered an incised wound and brought to
the hospital. There was settlement. Thereafter he
was released. However, after 22 days he was
brought to the hospital, he was already suffering
from tetanus poisoning. The next day he died.
SC: same reasoning by the SC. The act committed
by Javier after he was released from the hospital,
the fishing, going to the farm was considered as
the proximate cause that brought about the
tetanus virus on his incised wound. Therefore he
was not convicted of the crime of homicide but
only physical injuries.
So it is necessary that there no EIC that will rate
the causal connection between the felonious act
of the offender the resulting felony.
Belbis, Jr. & Brucales v. People, G.R. No.
181052, 14 November 2012
Facts: Petitioners Belbis, Jr. and Brucales were
charged with homicide in the RTC of Tabasco
City, Albay for the death of Jose Bahilio.
On the evening of December 9, 1997, Veronica
Dacir heard her live-in partner Bahilio shouting
and calling her name. She went outside their house
and saw Bahilio walking towards their house, with
blood on this back and shorts. Bahilio told
Veronica that he was held by Boboy (Alberto
Brucales), while Paul (Rodolfo Belbis, Jr.) stabbed
him. He was rushed to the hospital where it was
found that Bahilio suffered 4 stab wounds at the
back and buttocks. He was confined for 6 days and
was discharged on 15 December, and was due to
return on the 22nd. He failed to do so due to
financial constraints.
Dacir brought back Bahilio to the hospital on 1
January 1998 because he was complaining of
urinary retention (unable to empty the bladder)
and back pain. He was discharged on 3 January
upon his request. On 7 January he was brought
back to the hospital where it was found out that
his kidney had acute inflammation (and pus
formation and scarring) due to infection. Dacir
died on the same day due to multiple organ failure.
Belbis, Jr. and Brucales claimed self-defense, as
Bahilio, a barangay tanod, attacked Belbis, Jr. with a
bolo concealed as a nightstick, but the latter was
able to parry the attack. Brucales was only
watching and telling the two to stop fighting.
The RTC convicted Belbis, Jr. and Brucales of
homicide but appreciated incomplete self-defense.
The CA modified the RTC ruling, declaring that
there was no self-defense.
Issue: Whether the stab wounds are not the
proximate cause of Bahilio’s death as the latter
lived for some time after the stabbing.
Ruling: Petition DENIED.
What really needs to be proven in a case when
the victim dies is the proximate cause of his
death. Proximate cause has been defined as
"that cause, which, in natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury, and without which
the result would not have occurred." The
autopsy report indicated that the cause of the
victim's death is multiple organ failure.
According to the doctor who conducted the
autopsy, the kidneys suffered the most serious
damage. Although he admitted that autopsy
alone cannot show the real culprit, he stated
that by having a long standing infection caused
by an open wound, it can be surmised that
multiple organ failure was secondary to a long
standing infection secondary to stab wound
which the victim allegedly sustained. What is
important is that the other doctors who
attended to the wounds sustained by the
victim, specially those on the left and right
lumbar area, opined that they affected the
kidneys and that the wounds were deep
enough to have caused trauma on both
kidneys.
Thus, it can be concluded that without the
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stab wounds, the victim could not have
been afflicted with an infection which later
on caused multiple organ failure that caused
his death. The offender is criminally liable
for the death of the victim if his delictual
act caused, accelerated or contributed to
the death of the victim [end].
Ex. A and B were fighting. A stabbed B. B
sustained a less serious physical injuries. B was
brought to the hospital, it was not a serious
wound, however; because of the negligence or
careless treatment of the doctor, this not serious
wound became a very serious wound which later
on caused the death of B. The relatives of B filed a
case of homicide against A.
Is A liable of homicide for the death of B? Or
would you consider the careless treatment of the
doctor as an EIC?
 A is liable for the death of B. The negligence or
careless treatment of the doctor cannot be
considered as an EIC. The negligent treatment
of the doctor was an active force but it is not a
distinct act or fact absolutely foreign from the
felonious act of the offender. Because
precisely he needed medical intervention, he
needed treatment of the doctor because he
sustained a stab wound from A. Therefore,
there is a connection between the felonious
act and the medical treatment. It there for
cannot be considered as an EIC. The doctor’s
negligence would only make him liable
administratively but not criminally.
People v. Acuram, G.R. No. 117954, 27 April
2000
Facts: Acuram was charged with murder in the
RTC of Cagayan de Oro [CDO] City for the death
of Orlando Manabat.
One evening, Orlando and his companions were at
the right side of the highway, waiting for a ride
home. They flagged down an approaching jeepney,
which swerved dangerously towards them. One of
Orlando’s companions shouted at the jeep, and a
passenger shouted back. Immediately thereafter,
two gunshots rang out, accompanied by sparks
from the front right side of the jeepney. Orlando was
hit on the right knee; thus his companions brought
him to a medical center, where his wounds were
bandaged. Later, he was transferred to a hospital
as he needed blood transfusion. The doctor found
that Orlando had low blood pressure [BP], so he
decided to operate on Orlando when his BP
stabilized. The next day, Orlando underwent
surgery, but a few hours afterwards he died due to
massive blood loss due to gunshot wound.
The police investigation revealed that the appellant
Acuram, a policeman, was seated at the front, right
side of the jeepney, and was the only passenger
carrying a firearm. During trial, Acuram denied
firing his Armalite. The RTC convicted him of
murder. Hence the appeal to the SC.
Issue: Whether the lack of prompt and proper
medical attention is an efficient intervening cause
of the death of Orlando.
Ruling: Appeal DENIED. Acuram is guilty of
Homicide.
Lastly, in his attempt to exculpate himself, Acuram
blames the death of the victim on the lack of
prompt and proper medical attention given. He
insists that the delay in giving proper medical
attendance to the victim constitutes an efficient
intervening cause which exempts him from
criminal responsibility. This assertion is
disingenuous, to say the least. Acuram never
introduced proof to support his allegation that the
attending doctors in this case were negligent in
treating the victim. On the contrary, the attending
doctor xxx tried his best in treating the victim by
applying bandage on the injured leg to prevent
hemorrhage. He added that the victim was
immediately given blood transfusion xxx when the
doctor found out that the victim had a very low
blood pressure. Thereafter, the victim's blood
pressure stabilized. Then, the doctor operated the
victim as the main blood vessel of the victim's right
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leg was cut, thereby causing massive loss of blood.
The surgery was finished in three hours.
Unfortunately, the victim died hours later.
We cannot hold the attending doctors liable for the
death of the victim. The perceived delay in
giving medical treatment to the victim does
not break at all the causal connection between
the wrongful act of Acuram and the injuries
sustained by the victim. It does not constitute
efficient intervening cause. The proximate cause of
the death of the deceased is the shooting by the
appellant. It is settled that anyone inflicting injuries
is responsible for all the consequences of his
criminal act such as death that supervenes in
consequence of the injuries. The fact that the
injured did not receive proper medical
attendance would not affect Acuram’s criminal
responsibility. The rule is founded on the
practical policy of closing to the wrongdoer a
convenient avenue of escape from the just
consequences of his wrongful act. If the rule
were otherwise, many criminals could avoid just
accounting for their acts by merely establishing a
doubt as to the immediate cause of death.
NOTE: Homicide because treachery was not
proven. The shooting was done at the spur of the
moment [end].
Ex. A and B were friends. After farming while they
were having a drinking spree, they had a political
discussion, A was pro PNoy and B was pro GMA.
Their agreement heated, B stood up and broke a
bottle of beer, stabbed A. A was wounded. They
parted ways. A was on his way home when
suddenly it rained. After it rained there was
lightning and A was hit by lightning. A died. The
heirs of A filed a case of homicide against B.
Is B criminally liable for the death of A?
 Under the PCD, B is not criminally liable for
the death of A because there was an EIC that is
the lightning. The lightning was an active force
which is a distinct act or fact absolutely
foreign from the felonious act of the offender
which was the stabbing of the victim.
Therefore he cannot be held liable for the
death of A but only physical injuries sustained
by the victim.
3 SITUATIONS WHEREIN A PERSON BECOMES
CRIMINALLY LIABLE FOR THE RESULTING
FELONY ALTHOUGH DIFFERENT FROM THAT
WHICH HE INTENDED:
1. Abberatio Ictus - mistake in the blow
A situation wherein the offender directed a blow
at his intended victim but because of poor aim,
the blow landed on another victim.
Ex. A saw his enemy B walking on the pedestrian
lane. With intent to kill, A pulled out his pistol and
shot B. However, he has poor aim, so instead of
hitting his target B, the bullet landed on C. C died.
B was not hit at all.
What are the crimes or crime committed by A?
 In so far as B is concerned, A is liable for
attempted murder because he intended to kill
B. he already performed an overt act when he
fired the gun with intent to kill against B. there
was treachery, the victim was totally
defenseless. However because of poor aim it
was C who died.
 In so far as C is concerned, the crime
committed is homicide.
Therefore, of what crime will you charge and
convict A?
 There are two crimes committed. Against B
attempted murder, against C homicide. But
since this 2 crimes were brought about by a
single act, it will give rise to a complex crime
under Art. 48. Under Art. 48 when a single act
constitutes two or more grave or less grave
felonies, we have compound crime or a
complex crime.
The crime committed by A is attempted murder
with homicide. This is because it results from the
single act of the crime.
Ex. A fired B, but because of poor aim, C was hit. C
sustained a fatal wound, a mortal wound.
However, C was immediately brought to the
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hospital and he survived because of immediate
medical intervention.
 In so far B is concerned, the crime committed
is attempted murder.
In so far as C, what crime is committed? Is it
frustrated homicide?
 It is not frustrated homicide because in so far
as C is concerned, there was no intent to kill
on the part of C but since C suffered a fatal
wound but survived, he is liable for serious
physical injuries. Therefore the crime
committed by A is a complex crime of
attempted murder with serious physical
injuries. A single act constitutes one grave
felony which is attempted murder and one
less grave felony which is serious physical
injuries.
What if he sustained a less serious wound?
 Attempted murder with less serious physical
injuries.
What if when C was hit by the bullet, C only
sustained a slight physical injury which is a light
felony, are you going to complex?
 This time you cannot complex because under
Art. 48, you can only complex grave and less
grave felonies. You cannot complex a light
felony. Therefore, there would be 2 cases filed
separately. Attempted murder in so far as B is
concerned. Slight physical injury in so far as C
is concerned. So 2 informations, 2 cases must
be filed in the court.
People v. Violin, et al., G.R. No. 114003-06, 14
January 1997
Facts: Appellants Violin, Cherriguene, Allego,
Yazar were charged with murder for the death of
Dioscoro Astorga, Jr. and frustrated murder for
the wounding of Darmo Astorga in the RTC of
Catbalogan, Samar. Appellants Catalino Figueroa
and Miguel Figueroa were also charged with
murder and frustrated murder in connection with
the same incident.
One New Year’s eve, Allego, Punong Barangay of
San Jose, sought the help of Dioscoro, a police
station Commander, to settle a dispute the former
had with a Mrs. Agas, a resident of San Jose.
Dioscoro left with his brother Darmo and Allego
for San Jose. Violin, Cherriguene and Yazar joined
the three in the boat ride to San Jose. As Mrs. Agas
was not yet home, Dioscoro and Darmo were
forced to spend the night in Allego’s house.
At 4AM the following morning, the brothers were
awoken by Allego, who invited them to partake of
some food and liquor. Shortly afterwards,
Dioscoro went to relieve himself, but was
instructed by Allego to do so outside the house.
Suddenly, Darmo heard several gunshots. He ran
towards the door, only to see Dioscoro bleeding,
staggering and about to fall. Dioscoro warned him
to hide or he might be also be shot by Violin,
Cherriguene and Yazar. Darmo then hid under a
table. From there he saw Violin shoot at Dioscoro.
A stray bullet fired from the firearm of Violin
grazed the right side of Darmo's head.
Dioscoro died due to “cardiorespiratory failure
secondary to severe hemorrhage resulting from his
multiple gunshot wounds”
The defense invoked alibi as a defense for Violin,
et al.
The RTC ruled that Violin, Cherriguene and Yazar
are guilty of murder and frustrated murder, and
acquitted the Figueroas for insufficiency of
evidence.
Issue: Whether Violin is guilty of frustrated
murder for the wounding of Darmo.
Ruling:
The RTC in the frustrated murder charge found
that Violin in firing his Armalite rifle at Dioscoro
also hit his younger brother Darmo on his head
particularly on the right parietal region which injury
would have caused his death had it not been for
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the timely medical assistance rendered him. The
crime committed was frustrated murder because
there was treachery and the appellants who
conspired to kill the [Figueroa](sic., should be
“Astorga”) brothers performed all the acts of
execution but did not produce the result, the death
of Darmo, due to a cause entirely independent of
their will.
Again the Court cannot agree. The crime of slight
physical injuries, not frustrated murder, was
committed against Darmo. Violin fired at
Dioscoro Jr. and not at Darmo. There is not the
slightest indication that at that time Violin knew
that Darmo was hiding under a table. Darmo
himself admitted that he was injured by a stray
bullet which grazed the right parietal region of his
head. The wound was diagnosed as superficial and
required treatment only for three (3) days [end].
X molested the daughter of Y. Y wanted to kill X,
to take a revenge. Y looked for X, Y saw X on
board a tricycle. And so Y went near X and fired a
shot at X. but because of lack of precision, the
bullet landed on the driver of the tricycle and not
on X. The driver died. What crime or crimes have
been committed by Y?
In so far as X, the intended victim is concerned,
the crime committed is attempted murder. There
was intent to kill X, however X was not injured
because of poor aim.
The actual victim is the driver, since the driver
died, the intent to kill becomes a general criminal
intent. Therefore in so far as the driver is
concerned, the crime committed is MURDER.
These are 2 grave felonies arising from a single act
of shooting. Therefore, art.48 comes in, the crime
committed is MURDER with ATTEMPTED
MURDER.
***(murder sabi ni ma’am, but check page 10 ng senior
notes [NOTE: Now, these are the examples above this,
possibly on page 36, two pages before this]. Almost same
facts, pero homicide lang dun sa actual victim and not
murder)***
X wanted to kill Y, so he waited in a corner behind
an unlighted electric post, he knew that every day,
Y would pass by the said place. When a man
arrived, resembling Y, X immediately appeared and
stabbed the man. It turned out that the man was
not Y. it turned out to be his own father.
So X can be prosecuted for the crime of parricide,
the crime he actually committed.
But the crime he intended to commit is murder,
because in waiting behind an unlighted electric
post, there was treachery. Therefore the crime he
intended to commit is murder.
Would art. 49 apply? Would the lesser penalty be
imposed?
 Art.49 would not apply because both murder
and parricide have the same penalties Reclusion
perpetua.
 Therefore, even if there is variance in the title
of the felonies, they have the same penalties.
Hence, Art.49 will not apply. It will not mitigate
the criminal liability of the offender
Talampas v. People, G.R. No. 180219, 23
November 2011
Facts: Petitioner Talampas was charged with
homicide in the RTC of Biñan, Laguna, for the
killing of Ernesto Matic.
The prosecution alleged that Ernesto, with
Eduardo Matic and Sevillio were repairing
Sevillio’s tricycle when Talampas stopped by and
shot at Eduardo with a revolver. The latter was hit
and hid behind Ernesto. Talampas fired 3x more
with one shot hitting Ernesto at the right portion
of his back. This was fatal as it involved Ernesto’s
major organs such as the lungs, liver and spinal
column which caused his death.
Talampas, on the other hand, interposed self-
defense and accident. His enemy had been
Eduardo, not Ernesto. Eduardo hit Talampas with
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a monkey wrench, and they grappled for it.
Talampas noticed that Eduardo had a revolver, so
he and Eduardo grappled for the gun. The revolver
accidentally fired, hitting Eduardo.
The RTC found Talampas guilty beyond
reasonable doubt of homicide, and the CA
affirmed the RTC.
Issue: Whether the guilt of Talampas was not
proven beyond reasonable doubt
Ruling: Petition DENIED.
The fact that the target of Talampas’ assault was
Eduardo, not Ernesto, did not excuse his hitting
and killing of Ernesto. The fatal hitting of Ernesto
was the natural and direct consequence of
Talampas’ felonious deadly assault against
Eduardo. Talampas’ poor aim amounted to
aberratio ictus, or mistake in the blow, a
circumstance that neither exempted him from
criminal responsibility nor mitigated his criminal
liability. Lo que es causa de la causa, es causa del mal
causado (what is the cause of the cause is the cause
of the evil caused). Under Article 4 of the Revised
Penal Code, criminal liability is incurred by any
person committing a felony although the wrongful
act done be different from that which he intended.
[end]
People v. Hermogenes Flora & Edwin Flora,
G.R. No. 125909, 23 June 2000
Facts: Three separate informations were filed in
the RTC of Santa Cruz, Laguna for the double
murder of Ireneo Gallarte and Emerita Roma and
for the attempted murder of Flor Espinas.
Hermogenes had a fight with a certain Oscar.
Oscar’s uncle, Ireneo, pacified the two. A few days
later, Hermogenes and his brother Edwin were
guests in a dance party one evening. Among the
guests were Emerita, Flor and Ireneo. At 1:30AM,
1Hypovolemic shock is an emergency condition in which
severe blood or fluid loss makes the heart unable to pump
enough blood to the body. This type of shock can cause
Hermogenes fired his .38 cal. Revolver twice upon
Edwin’s signal. The first shot grazed Flor’s right
shoulder, then hit Emerita below the latter’s
shoulder. The second shot hit Ireneo, who
slumped on the floor. Emerita and Ireneo died due
to hypovolemic shock1 due to massive blood loss
caused by a gunshot wound.
The brothers Flora interposed alibi as their
defense, claiming that they were sleeping at the
time of the incident.
The RTC convicted both Hermogenes and Edwin
for double murder and attempted murder.
Issue: Whether the RTC erred in convicting
Hermogenes and Edwin for double murder and
attempted murder.
Ruling: Appeal DENIED. RTC decision
affirmed with modification.
Coming now to the criminal responsibility of
appellants. In the present case, when
Hermogenes Flora first fired his gun at Ireneo,
but missed, and hit Emerita Roma and Flor
Espinas instead, he became liable for
Emerita's death and Flor's injuries.
Hermogenes cannot escape culpability on the basis
of aberratio ictus principle. Criminal liability is
incurred by any person committing a felony,
although the wrongful act be different from that
which he intended.
NOTE: Hermogenes was guilty of murder for
Ireneo’s death. His-and Emerita’s-deaths were
attended by treachery when they were suddenly
shot when they helpless to defend thereselves. He
is also guilty for the attempted murder of Flor. As
for Edwin, the SC ruled that there was conspiracy
to kill Ireneo and no one else. Edwin was guilty as
a co-conspirator for Ireneo’s death. He has no
many organs to stop working
(https://medlineplus.gov/ency/article/000167.htm)
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liability for the death of Emerita nor for the injuries
of Flor caused by Hermogenes [end].
People v. Adriano, et al., G.R. No. 205228, 15
July 2015
Facts: Rolly Adriano was charged with 2 counts of
murder for the deaths of Danilo Cabiedes and
Ofelia Bulanan before the RTC [of Nueva Ecija].
A speeding Toyota Corolla overtook 2 police
officers on a motorcycle and a Honda CR-V. When
the Corolla reached alongside the CR-V, the front
seat passenger shot the CR-V, causing the latter to
swerve and fall in the canal in the road
embankment. Suddenly, 4 armed men alighted
from the Corolla and shot the driver of the CR-V,
who was later on identified as Cabiedes. During the
shooting, a bystander, Bulanan, who was standing
near the road embankment, was hit by a stray
bullet. The four armed men hurried back to the
Corollo and immediately left the crime scene. The
policemen followed the Corolla but lost track of
the latter. Both Cabiedes and Bulanan died. The
crime scene yielded a fired bullet, and 5 cartridges
from a .45 cal. firearm.
The police learned that the Corolla was registered
under the name of Rivera, who ran a car rental
business. The Corolla was leased to the appellant
Adriano. Later, Adriano arrived at Rivera’s shop to
return the car, where he was identified by the two
motorcycle-riding policemen as one of the 4
assailants.
Adriano interposed alibi as defense, claiming that
at the time of the incident, he was washing clothes,
took his motorcycle for repairs and watch
cockfights. He also alleged that a Boyet Garcia,
who borrowed the Corolla from him, returned the
car on the evening.
The RTC rejected Adriano’s defense due to lack of
clear and convincing evidence, and convicted him
of murder for the death of Cabiedes and homicide
for the death of Bulanan. The other accused
remained at large. The CA affirmed the RTC
decision.
Issues:
1. Whether the lower courts errend in finding
Adriano liable for Bulanan’s death;
2. Whether treachery may be appreciated in
abberatio ictus
Ruling: Appeal DENIED.
1. Adriano is liable under Art. 4, RPC
Death of Bulanan
We refer back to the settled facts of the case.
Bulanan, who was merely a bystander, was killed by
a stray bullet. [Sh]e was at the wrong place at the
wrong time.
Stray bullets, obviously, kill indiscriminately and
often without warning, precluding the unknowing
victim from repelling the attack or defending
himself. At the outset, Adriano had no intention to
kill Bulanan, much less, employ any particular
means of attack. Logically, Bulanan's death was
random and unintentional and the method used to
kill her, as she was killed by a stray a bullet, was, by
no means, deliberate. Nonetheless, Adriano is
guilty of the death of Bulanan under Article 4
of the Revised Penal Code, pursuant to the
doctrine of aberratio ictus, which imposes
criminal liability for the acts committed in violation
of law and for all the natural and logical
consequences resulting therefrom. While it may
not have been Adriano's intention to shoot
Bulanan, this fact will not exculpate him. Bulanan's
death caused by the bullet fired by Adriano was the
natural and direct consequence of Adriano's
felonious deadly assault against Cabiedes.
As we already held in People v. Herrera citing People
v. Hilario, "[t]he fact that accused killed a person
other than their intended victim is of no moment."
Evidently, Adriano's original intent was to kill
Cabiedes. However, during the commission of the
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crime of murder, a stray bullet hit and killed
Bulanan. Adriano is responsible for the
consequences of his act of shooting Cabiedes. This
is the import of Article 4 of the Revised Penal
Code. As held in People v. Herrera citing People v.
Ural: Criminal liability is incurred by any person
committing a felony although the wrongful act be
different from that which is intended. One who
commits an intentional felony is responsible for all
the consequences which may naturally or logically
result therefrom, whether foreseen or intended or
not. The rationale of the rule is found in the
doctrine xxx he who is the cause of the cause is the
cause of the evil caused.
As regards the crime(s) committed, we
reiterate our ruling in People v. Nelmida. In the
aforesaid case, we ruled that accused-appellants
should be convicted not of a complex crime but of
separate crimes of two counts of murder and
seven counts of attempted murder as the
killing and wounding of the victims were not
the result of a single act but of several acts. The
doctrine in Nelmida here is apt and applicable.
In Nelmida, we distinguished the two kinds of
complex crime: compound crime, when a single act
constitutes two or more grave or less grave
felonies, and complex crime proper, when an
offense is a necessary means for committing the
other. Moreover, we also made a distinction that
"when various victims expire from separate shots,
such acts constitute separate and distinct crimes,"
not a complex crime.
As borne by the records, the Crime Laboratory
recovered six (6) cartridges of bullets from a .45
caliber firearm. This does not indicate discharge by
a single burst. Rather, separate shots are evidenced.
One or more of which, though fired to kill
Cabiedes, killed Bulanan instead. There is thus no
complex crime. The felonious acts resulted in two
separate and distinct crimes.
2. Treachery may be appreciated
Finally, we ask, may treachery be appreciated in
aberratio ictus?
Although Bulanan's death was by no means
deliberate, we shall adhere to the prevailing
jurisprudence pronounced in People v. Flora,
where the Court ruled that treachery may be
appreciated in aberratio ictus. In Flora, the
accused was convicted of two separate counts of
murder: for the killing of two victims, Emerita, the
intended victim, and Ireneo, the victim killed by a
stray bullet. The Court, due to the presence of the
aggravating circumstance of treachery, qualified
both killings to murder. The material facts in Flora
are similar in the case at bar. Thus, we follow the
Flora doctrine. [NOTE: see Flora, the previous
digest. It is Ireneo, not Emerita, who was the
intended victim, and it was the latter who was killed
by a stray bullet.][end].
PROSEC reci questions:
 Why did the SC say that in Violin, the accused
was guilty only of slight physical injuries while
in Adriano, the accused was guilty of murder for
the death of the bystander?
[Because, when a single act of firing a gun
results in 2 injuries there is a complex crime
(Violin)
But if there are separate acts of firing, there
are 2 different crimes (Adriano)]
 Why in Adriano, 2 counts of murder instead of
double murder?
Because the several shots were separate acts.
They are not discharged by a single burst.
2. Error in Personae - mistake in the identity
It is a situation wherein the victim actually
received the bullet but he was mistaken to be the
intended victim. The intended victim was not at
the scene of the crime.
Effects: it depends
1. If there is variance in the penalty between the
intended and actual crime committed,
mitigating. The penalty for the lesser crime
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must be imposed (Art. 49).
2. If none, no effect on the criminal liability of the
offender, such as when the crimes differ (in
name) but the penalties are the same.
Ex. A and B were fighting A boxed B. It was a
strong box that B fell on the ground, his face
facing the ground. A left the scene of the crime. At
that precise moment when A left, here comes the
father of B who saw his poor son boxed by A so he
came to the rescue of his son and went near him.
To retaliate, B took out his balisong and stabbed
the person next to him thinking that it was still his
opponent A but in truth it was already his father.
Let's say the father died.
What was the intended crime committed by B?
 Homicide because he intended to kill A, the
person who boxed him.
What crime did he commit?
 Parricide because he killed his own father.
Of what crime will you prosecute B?
 Parricide because that is the [crime] he
actually committed.
Let's say that he is now charged of parricide. Trial
on the merits proceeded. The Judge found him
guilty beyond reasonable doubt of parricide.
What penalty as a Judge would you impose on
him?
 The penalty for parricide under Art. 246 is
reclusion perpetua to death whereas the
penalty for homicide under Art. 249 is
reclusion temporal. Although he committed
parricide. You have to impose upon him the
penalty which is lesser and that is reclusion
temporal but in its maximum period.
Under Art. 49, in case of Error in Personae or
Mistake in the Identity, when there is a variance
between the intended crime and the actual crime
committed, you have to compare the 2.
Whichever has a lesser penalty, that penalty has
to be imposed.
In the case the intended felony is homicide but the
actual felony is parricide. Compare the penalty of
the 2, although B should be convicted of the crime
of parricide, the penalty will be that of the crime
with a lesser penalty. That is reclusion temporal
for homicide.
Ex. In the same problem, instead of the father
coming to the rescue of B, it was the friend of B
who came to his rescue. So when A left, the friend
of B arrived and was the one stabbed by B and
died. Therefore, B killed his own best friend.
 the crime committed is homicide
What was his intended crime?
 homicide
What crime did he actually commit?
 homicide because he killed his own best
friend
What crime would you charge him of? After trial
on the merits what penalty will you impose?
 The penalty of homicide. Since there is no
variance between the intended felony and the
felony actually committed. In this case, Error
in Personae will not mitigate the liability of
the offender. Art. 49 will not apply.
3. Prater Intentionem - when the consequence
went beyond the intention; injurious
result is greater than that intended.
It is a situation wherein the offender directed the
blow at his actual victim, the victim received the
blow. However, the injurious result is far greater
than what is intended by the victim.
Effect: it is always a mitigating circumstance
because of Art. 13. The offender has no intention
to commit so grave a wrong as that committed.
For Praeter Intentionem to be considered as a
mitigating circumstance, the prime element or
requisite is that: there must be a notable
disparity between the means employed by the
offender and the resulting felony. That is out of
the means employed by the offender, no one
could have anticipated or foreseen that injurious
result.
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Ex. H arrived home and asked W what was their
dinner and the W answered that she has not yet
cooked because she was watching teleserye. Since
the H was so tired, he got mad and elbowed the
W. The W fell on floor and her head hit the edge
of the table and so she suffered hemorrhage.
Thereafter, she died.
What crime should H be prosecuted?
 parricide
H said he had no intention of killing his W, he only
elbowed her. However, since death is the result, it
is a general criminal intent which is presumed by
law.
Would you give him the benefit of Praeter
Intentionem?
Yes, because no one could have foreseen that the
mere act of elbowing the W, death would result.
There was a notable disparity between the means
employed, the act of elbowing the W, and the
resulting felony which is death or parricide.
Therefore, he should be given the benefit of
mitigating circumstance.
Garcia vs. People
Garcia’s act of mauling Chy was the proximate
cause of Chy’s heart attack. However, he was
given the benefit of Praeter Intentionem. Who
would have anticipated that the mere act of
mauling or boxing him death would result.
Therefore, there was Praeter Intentionem.
People vs. Noel Sales
Praeter Intentionem was not considered by the
court.
The son was hit by a thick piece of a wood while
he was tied on a coconut tree. There was a crack
on his head, became unconscious and then he
died. The father was convicted for parricide.
According to him he cannot be held liable for
parricide. He claimed that he has no intention to
kill the child, he only intended to discipline his
children. However, since the victim died, death is
considered a general criminal intent which is
presumed by law. Therefore, he should be held
liable of parricide.
Does the PCD apply?
Yes. The father in beating the son with a thick
piece of wood while the child was tied on a
coconut tree was already a felonious act.
Therefore the father should be liable for the
resulting felony although different from that
which he intended.
Should the father be given the benefit of Praeter
Intentionem?
No. According to the SC, there was no notable
disparity between the act of the father hitting the
said son with a thick piece of wood while being
tied on a coconut tree and the resulting felony
which is death. Considering the age of the child,
such act of the father would produce and indeed
produce the death of the child. Therefore it
cannot be said that there is no intention to
commit so grave a wrong as that committed.
Impossible Crime Doctrine (ICD)
By any person performing an act which would be an
offense against persons or property, were it not for
the inherent impossibility of its accomplishment or
an account of the employment of inadequate or
ineffectual means.
 One where the act would have amounted to a
crime against persons or property but it is not
accomplished because of its inherent
impossibility or because of the employment of
inadequate or ineffectual means.
 It is not really a crime in the legal sense of the
word because a crime requires a substantive
change in the outside world. Here the act dis
not ripen into a crime. It was not
accomplished into a crime because of its
inherent impossibility. Nevertheless, the
offender is being punished because of his
criminality and dangerousness. So although
objectively, no crime is committed, still the
offender shall be punished that is why he is
convicted only of IC.
 The penalty of IC is only arresto mayor or a
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fine of P200-P500 depending on the
criminality or dangerousness of the offender.
Elements for a person to be liable of IC
1. That the act done would have been an
offense against persons or property
2. That the act was done with evil intent
3. That the act was not accomplished
because of its inherent impossibility or
the employment of inadequate or
ineffectual means
4. That the act done should not constitute
any other violation of the RPC
1. That the act done would have been an offense
against persons or property
Crimes against persons under Title 8, we have
parricide, murder, homicide, abortion,
infanticide, duel, physical injuries, rape.
Crimes against property, we have robbery,
brigandage, theft, usurpation or occupation of
real property, estafa or swindling, malicious
mischief, arson.
Only crimes against persons and property would
an IC
2. That the act was done with evil intent
It is necessary that the offender in doing the act
must be incited by an evil intent.
3. That the act was not accomplished because of
its inherent impossibility or the employment of
inadequate or ineffectual means
Intod vs. CA
Killing a person when it is already dead.
SC: discussed 2 kinds of inherent impossibility
2 KINDS OF INHERENT IMPOSSIBILITY
a) Legal Impossibility - there is legal
impossibility when all the intended acts even
if committed would not have amounted to a
crime.
Ex. Intod vs. CA - Killing a person when he is
already dead
Ex. X saw his enemy Y lying on a bench. He went
to Y and stabbed Y 10x not knowing that Y had
already long been dead for 2 hrs due to a heart
attack. Even if X performed all the acts amounting
to murder, still murder would not arise which is a
crime against persons because the victim is
already deceased. He is no longer a person in the
eyes of criminal law. Therefore there is IC and
what we have is legal impossibility.
b) Physical and Factual Impossibility - when
an extraneous circumstance unknown to the
offender prevented the consignation of the
crime. Here, there are circumstances
unknown to the offender, the inadequate
control of the offender which prevented the
consignation of the crime.
Example given by SC in the case of Intod vs. CA. A
person placed his hands inside the pocket of the
polo of another, intended to get the wallet of the
said person but the pocket was empty. It is an IC.
Extraneous Circumstances unknown to the
offender prevented the consignation of the crime.
Unknown to him the wallet was not inside his
pocket. S it is an IC because it would have
amounted to theft, a crime against property.
4. That the act done should not constitute any other
violation of the RPC
It is necessary that the act done must not be a
violation of any crime under the RPC. Otherwise
that person would be held liable of that crime and
not of an IC. So an impossible crime is a crime of
last resort. One should only file a case of IC if the
act of the offender does not constitute any other
violation of the RPC.
Intod vs. CA
Intod accompanied by other men, wanted to kill
Palampangan, peppered the room his room with
bullets. However, the intended victim was not
there. Only son in law and children were there but
they were not hit. Intod and his company were
charged with the crime of attempted murder up
to the CA.
SC: it was only an IC and what is present is only
factual or physical impossibility. Unknown to the
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offenders the intended victim was not at the
scene of the crime. It could have amounted to a
crime against persons which is murder. But it was
inherently impossible because the victim was not
there.
This decision of the SC were criticized because
under the 4th element, the act must not constitute
any other violation of the RPC. When this accused
peppered the house of Palampangan with bullets,
they did peppered the house with bullets. So they
said, they should be liable with malicious mischief
because damage was done to the house and not
IC. SC retained its decision that it is an IC and this
case of Intod vs. CA was cited in the case of Jacinto
vs. People.
Jacinto vs. People
A check which was supposed to be remitted was
not remitted by the offender, instead it was
deposited. Since the check was not remitted,
Megaphone filed a case of qualified theft against
[t]he employee. She was convicted before the
lower court up to the CA.
SC: it was impossible crime citing the case of Intod
vs. CA. [Their acts] amount[ed] to qualified theft.
However, unknown to the said offender the check
was not funded. Therefore, she was not able to get
the face value of the said check. Hence, physical
circumstances unknown to the offender
prevented the consummation of the crime. We
have physical or factual impossibility.
What about the fact that the check was taken, was
not remitted to Mega Foam?
 According to the SC theft has been defined
under Art. 308 as the taking of a property with
intent to gain the personal property of
another. Therefore it is necessary that the
property taken must have value because the
taking must be with intent to gain. The mere
taking of a check without value would not
amount to theft because the check without
value is a worthless check. Hence, the SC said
that the crime committed is only an IC.
The penalty is arresto mayor or a maximum
penalty of 6 months.
 The SC erased, did not include the 4th element
of IC. That the act done should not constitute
any other violation of the RPC. Perhaps
because of the ruling in Intod vs. CA. It was
deliberately deleted.
Intod v. CA & People, G.R. No. 103119, 21
October 1992
Facts: Petitioner Sulpicio Intod gathered 4 other
men to kill Bernardina Palangpangan because of a
land dispute between him and her. When they
reached her house, Intod and 3 of his companions
fired at the bedroom of Bernardina. It turned out
that Bernardina was in another city and her son-
in-law and his family were occupying her house.
Nobody was injured in the shooting.
The RTC of Oroquieta City convicted Intod of
attempted murder, and the CA affirmed the
conviction.
Issue: Whether Intod is guilty only of an
impossible crime, not attempted murder.
Ruling: Petition GRANTED.
Under Art. 4(2), the act performed by the
offender cannot produce an offense against
person or property because: (1) the commission
of the offense is inherently impossible of
accomplishment: or (2) the means employed is
either (a) inadequate or (b) ineffectual.
There are two kinds of impossibilities: legal
impossibility and factual impossibility. Legal
impossibility would apply to those circumstances
where:
1. the motive, desire and expectation is to
perform an act in violation of the law;
2. there is intention to perform the physical
act;
3. there is a performance of the intended
physical act; and
4. the consequence resulting from the intended
act does not amount to a crime (e.g.
impossibility of killing a person already
dead).
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On the other hand, factual impossibility
occurs when extraneous circumstances unknown
to the actor or beyond his control prevent the
consummation of the intended crime (e.g. the
man who puts his hand in the coat pocket of
another with the intention to steal the latter's
wallet and finds the pocket empty). The case at
bar belongs to this category. Petitioner shoots
the place where he thought his victim would
be, although in reality, the victim was not
present in said place and thus, the petitioner
failed to accomplish his end.
In the Philippines, not unlike in other
jurisdictions, impossible crime is expressly
provided and punishable in the RPC. It is not
merely a defense, but an act penalized by itself.
Furthermore, the phrase "inherent impossibility"
that is found in Article 4(2) makes no
distinction between factual or physical
impossibility and legal impossibility. The factual
situation in the case at bar presents a physical
impossibility which rendered the intended crime
impossible of accomplishment. To uphold the
contention of respondent that the offense was
Attempted Murder because the absence of
Palangpangan was a supervening cause
independent of the actor's will, will render
useless the provision in Article 4, which makes
a person criminally liable for an act "which
would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment . . ." In
that case all circumstances which prevented the
consummation of the offense will be treated
as an accident independent of the actor's will
which is an element of attempted and
frustrated felonies [end].
X, [a] public officer filed his SALN, the said SALN
has been filed before the appropriate government
agency. It turned out later that the administering
officer in the SALN is not a notary public, but only
a secretary of the said notary public. The person
who signed the same is only the secretary and not
the person competent enough to administer the
said oath. X the public officer knew this. Is X liable
for an impossible crime?
 X is not liable for an impossible crime
The first element requires that the act done would
have been an offense against person or property
 Had it been accomplished, the act done would
have amounted to perjury
 However perjury is not a crime against person
or property. It is under title 4, crimes against
public interest.
 Therefore the first element is absent.
What then is the crime committed?
The crime committed is falsification. Making an
unlawful statements in a narration of facts.
Why not perjury?
Because the solemnizing officer is not duly
authorized to receive and administer, therefore it
cannot be perjury.
X lost his cellphone 2 days ago while going to
work. Now, while he was working, he saw his
officemate with a new cellphone like his old phone.
He waited for his officemate to go to the CR and
when the officemate went to the CR, X covered his
face with a handkerchief, went near the officemate,
pointed a balisong and told him “this is a holdup,
give me your cellphone, I am going to stab you if
you don’t give it to me”. Afraid, the officemate
gave the cellphone. It turned out that it was his
cellphone that he lost 2 days ago. Is X liable of an
impossible crime?
1st element – the act done would have amounted
to a crime against person or property. Had it been
accomplished, would it have been a crime against
property?
 NO, because the said thing taken happens to
be his own property.
2nd element – the act done was done with evil
intent
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3rd element - was it inherently impossible to
accomplish the crime?
Yes, because in case of robbery or theft, it is
necessary that the thing must belong to another
person. And here, thing taken is his own property.
4th element – the act does not fall under any other
provision of RPC. Does the act fall under any
provision of the RPC?
Yes, therefore it is not an impossible crime.
What provision of the RPC? It amounted to grave
coercion. By compelling someone to do something
against his will, whether right or wrong by means
of violence or intimidation.
Therefore, the offender is not liable of an
impossible crime, rather, he is liable for grave
coercion.
People v. Domasian & Dr. Tan, G.R. No.
95322, 1 March 1993
Facts: Domasian and Dr. Tan were charged with
kidnapping with serious illegal detention in the
RTC of QC for the kidnapping of an 8-yr old boy,
Enrico Paulo Agra.
One morning, Enrico was approached by
Domasian who requested the assistance in getting
his father’s signature on a medical certificate.
Enrico agreed and rode with Domasian in a tricycle
to a building to get the certificate. Enrico started to
cry when, instead of taking him to the hospital,
Domasian dragged him onboard a minibus, and
threatened him to stop crying or he would not be
returned to his father. They went to different
places, and at one point Domasian handed an
envelope to a jeepney driver addressed to Dr. Agra,
Enrico’s father. Domasian and Enrico boarded a
tricycle. Enrico’s continuous crying and
Domasian’s claim that they were brothers
notwithstanding their physical differences and
wide age gap aroused the tricycle driver’s suspicion.
The latter reported the matter to barangay tanods
after Domasian and Enrico alighted. The tanods
pursued the two, and Domasian managed to
escape, leaving Enrico behind. He met his parents
on his way home.
Later in the afternoon, Dr. Agra received a ransom
note, demanding P 1M for Enrico’s release. He
thought that the handwriting was familiar, so he
compared it with some records in his hospital. He
gave the note to the police, who had the NBI
examine the same. Tests showed that it was written
by Dr. Tan, one of the resident physicians of Dr.
Agra’s hospital.
Domasian interposed alibi and denial as defenses,
but the RTC found them guilty as charged.
Issue: Whether the sending of the ransom note
was an impossible crime.
Ruling: Appeal DENIED.
Tan claims that the lower court erred in not finding
that the sending of the ransom note was an
impossible crime which he says is not punishable.
His reason is that the second paragraph of Article
4 of the Revised Penal Code provides that criminal
liability shall be incurred "by any person
performing an act which would be an offense
against persons or property, were it not for the
inherent impossibility of its accomplishment or on
account of the employment of inadequate or
ineffectual means." As the crime alleged is not
against persons or property but against liberty, he
argues that it is not covered by the said provision.
Tan conveniently forgets the first paragraph of the
same article, which clearly applies to him, thus
Criminal liability shall be incurred by any person
committing a felony (delito) although the wrongful
act done be different from that which he intended.
Even before the ransom note was received, the
crime of kidnaping with serious illegal detention
had already been committed. The act cannot be
considered an impossible crime because there was
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no inherent improbability of its accomplishment or
the employment of inadequate or ineffective
means. The delivery of the ransom note after the
rescue of the victim did not extinguish the offense,
which had already been consummated when
Domasian deprived Enrico of his liberty. The
sending of the ransom note would have had the
effect only of increasing the penalty to death under
the last paragraph of Article 267 although this too
would not have been possible under the new
Constitution [end].
Art. 5. Duty of the court in connection with acts
which should be repressed but which are not
covered by the law, and in cases of excessive
penalties. — Whenever a court has knowledge of
any act which it may deem proper to repress and
which is not punishable by law, it shall render the
proper decision, and shall report to the Chief
Executive, through the Department of Justice, the
reasons which induce the court to believe that
said act should be made the subject of legislation.
In the same way, the court shall submit to
the Chief Executive, through the Department of
Justice, such statement as may be deemed proper,
without suspending the execution of the sentence,
when a strict enforcement of the provisions of this
Code would result in the imposition of a clearly
excessive penalty, taking into consideration the
degree of malice and the injury caused by the
offense.
There are no common law crimes in the
Philippines.
Art. 5 (second paragraph)
After trial on the merits, the judge has found the
accused guilty, but based on the facts and
circumstances, the penalty prescribed by law for
the crime committed is too harsh. No matter how
harsh the penalty prescribed by law, it is the duty
of the judge to impose the said penalty. But he may
give a recommendation to the president through
the DOJ that executive clemency be granted to the
offender.
Art. 6. Consummated, frustrated, and attempted
felonies. — Consummated felonies as well as
those which are frustrated and attempted, are
punishable.
A felony is consummated when all the
elements necessary for its execution and
accomplishment are present; and it is frustrated
when the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.
There is an attempt when the offender
commences the commission of a felony directly by
overt acts, and does not perform all the acts of
execution which should produce the felony by
reason of some cause or accident other than this
own spontaneous desistance.
2 PHASES IN THE COMMISSION OF THE CRIME
1. Subjective Phase - portion in the commission
of the act wherein the offender commences
the commission of the crime after the time
that he still has control over his acts. He may
or may not proceed in the commission of the
crime. He still has control over his acts
2. Objective Phase - from the moment the
offender uses control over his acts it is already
in the objective phase of the commission of
the crime.
IN THE DEVELOPMENT OF A CRIME WE HAVE
BOTH THE INTERNAL AND EXTERNAL ACT
1. Internal Acts - are not punishable. Mere
criminal thoughts will never give rise to
criminal liability. There must be an external
act.
2. External Act - includes preparatory acts and
acts of execution
a. Preparatory Acts - as a rule are not yet
punishable because they are not yet
connected to a particular felony.
Ex. Conspiracy to commit a crime,
proposal to commit a crime -> merely
preparatory acts. Hence, as a rule they are
not punishable
b. Acts of Execution - this is the actual act of
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committing the crime and we have 3
stages, attempted, frustrated and
consummated.
Attempted Stage
Elements (People v. Lizada):
1. The offender commences the
commission of the felony directly by
overt acts,
2. That he does not perform all acts of
execution that would have produced the
felony,
3. That his act was not stopped by his own
spontaneous desistance,
4. That he was not able to perform all acts of
execution by reason of some cause or
accident other than his own spontaneous
desistance
There is an attempt when the offender commences
the commission of a felony directly by overt acts, and
does not perform all the acts of execution which
should produce the felony by reason of some cause
or accident other than this own spontaneous
desistance.
The offender is still in the subjective phase, the
offender has still control over his acts, he may
proceed in the commission of the crime or he may
desist. The moment he desist on his own
spontaneous desistance then he will no longer be
held criminally liable.
Desistance negates criminal liability in the
attempted stage but not in the frustrated or
consummated stage.
The offender commences the commission of the
felony directly by overt acts.
The attempted felony that is punished by law is
one that is directly connected to the overt act
performed by the offender even if he has a
different crime in mind.
1. The offender commences the commission of the
felony directly by overt acts
OVERT ACT [OA] - refers to any external act
which if allowed to continue will naturally and
logically ripen into a crime. What the law requires
is that the overt act must be directly connected to
the intended felony. The offender commences the
commission of the crime directly by overt act.
DIRECTLY BY OA - means that the OA performed
by the offender must be directly connected to the
intended felony. The attempted felony that is
punished by law is one which is directly
connected to the over act performed by the
offender although he has a different crime in
mind.
People v. Lamahang, a case cited in Baleros vs.
People
A person intending to rob a store made an
opening on the wall of the store sufficient for his
body to enter. His intention was to rob. Before he
could enter he was already apprehended.
Can he be liable of attempted robbery?
> No. Because his OA of making an opening on the
wall of the store is not an OA directly connected
to robbery. It is only an OA directly connected to
trespassing. Hence, he can only be held liable for
attempted trespassing.
Although his intention was to commit robbery,
once inside he may rob, he may rape, he may kill,
he may injure the owner of the store. Therefore,
it is not an act directly connected to robbery.
People v. Lamahang, G.R. No. 43530, 3
August 1935
Facts: A policeman caught Lamahang in the act
of making an opening in the wall of the store of
Tan Yu. Lamahang was only able to break one
board and was in the process of unfastening
another one when the police showed up. He was
convicted by the CFI of Iloilo of attempted
robbery.
Issue: Whether Lamahang is not guilty of
attempted robbery
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Ruling: Appeal GRANTED.
The attempt to commit an offense which the Penal
Code punishes is that which has a logical relation
to a particular, concrete offense; that, which is the
beginning of the execution of the offense by overt
acts of the perpetrator, leading directly to its
realization and consummation. The attempt to
commit an indeterminate offense, inasmuch as its
nature in relation to its objective is ambiguous, is
not a juridical fact from the standpoint of the
Penal Code. There is no doubt that in the case at
bar it was the intention of the accused to enter Tan
Yu's store by means of violence, passing through
the opening which he had started to make on the
wall, in order to commit an offense which, due to
the timely arrival of policeman, did not develop
beyond the first steps of its execution.
But it is not sufficient, for the purpose of
imposing penal sanction, that an act
objectively performed constitute a mere
beginning of execution; it is necessary to
establish its unavoidable connection, like the
logical and natural relation of the cause and its
effect, with the deed which, upon its
consummation, will develop into one of the
offenses defined and punished by the Code; it
is necessary to prove that said beginning of
execution, if carried to its complete termination
following 'its natural course, without being
frustrated by external obstacles nor by the
voluntary desistance of the perpetrator, will
logically and necessarily ripen into a concrete
offense. Thus, in case of robbery, in order that the
simple act of entering by means of force or
violence another person's dwelling may be
considered an attempt to commit this offense, it
must be shown that the offender clearly intended
to take possession, for the purpose of gain, of
some personal property belonging to another. In
the instant case, there is nothing in the record from
which such purpose of the accused may reasonably
be inferred. From the fact established and stated
in the decision, that the accused on the day in
question was making an opening by means of an
iron bar on the wall of Tan Yu's store, it may only
be inferred as a logical conclusion that his evident
intention was to enter by means of force said
store against the will of its owner. That his final
objective, once he succeeded in entering the store,
was to rob, to cause physical injury to the inmates,
or to commit any other offense, there is nothing in
the record to justify a concrete finding.
In offenses not consummated, as the material
damage is wanting, the nature of the action
intended cannot exactly be ascertained, but the
same must be inferred from the nature of the acts
executed. Hence, the necessity that these acts be
such that by their very nature, by the facts to which
they are related, by the circumstances of the
persons performing the same, and by the things
connected therewith, they must show without any
doubt, that they are aimed at the consummation of
a crime. Acts susceptible of double interpretation,
that is, in favor as well as against the culprit, and
which show an innocent as well as a punishable
act, must not and cannot furnish grounds by
themselves for attempted nor frustrated crimes.
The relation existing between the facts
submitted for appreciation and the offense
which said facts are supposed to produce must
be direct; the intention must be ascertained
from the facts and therefore it is necessary, in
order to avoid regrettable instances of
injustice, that the mind be able to directly infer
from them the intention of the perpetrator to
cause a particular injury. This must have been
the intention of the legislator in requiring that in
order for an attempt to exist, the offender must
commence the commission of the felony directly
by overt acts, that is to say, that the acts performed
must be such that, without the intent to commit
an offense, they would be meaningless.
In view of the foregoing, we are of the opinion,
and so hold that the fact under consideration does
not constitute attempted robbery but attempted
trespass to dwelling [end].
Baleros vs. People
The woman was awakened by a man pressing a
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cloth soaked with chemical on her face. The man
was on top of her, she struggled, she was able to
kick the man, the man jumped out of the window.
She called on the guard and then everyone came
up to her. The case filed against the man was
attempted rape. The man was convicted up to the
CA of attempted rape.
Was there attempted rape?
SC: it is not attempted rape. The OA of pressing a
cloth soaked with chemical on the face of a
woman is not an OA directly connected to rape.
The obvious intent was to make the woman
unconscious but once the woman is made
unconscious, the man may rape, may touch the
private parts of the woman, or he may injure the
woman, or may rob the property of the woman.
It is not an overt act directly connected with rape
even if the intent of the offender would have been
to rape the victim since his overt act is not directly
connected with rape so he cannot be held liable of
attempted rape.
He was convicted only of the crime of unjust
vexation.
SC: when the OA of a person is ambiguous in so
far as the intended felony is committed, what we
have is an attempt to commit an indeterminate
offense which is a juridical standpoint insofar as
the RPC is concerned
The Supreme Court said the act of the offender
would amount to an attempt to commit and
indeterminate offense which has no juridical
standpoint in the RPC. The intent of the offender
was to render the woman unconscious but once
she is unconscious the offender may perform
other acts not only to rape the victim hence it is
not an act directly connected with rape
Baleros, Jr. v. People, G.R. No. 138033, 22
February 2006
Facts: UST Med student Malou Albano was
awakened from her sleep in her apartment by the
smell of a chemical on a piece of cloth pressed
against her face. She struggled but could not
move because somebody was pinning her down
on the bed, holding her tightly. She wanted to
scream for help but the hands covering her
mouth with cloth wet with chemicals were very
tight. Still, Malou continued fighting off her
attacker by kicking him until at last her right
hand got free. With this, the opportunity
presented itself when she was able to grab hold
of his sex organ which she then squeezed. The
man let her go and Malou went straight to the
bedroom door and roused her maid Marvilou.
An investigation of the incident later revealed that
Malou’s attacker was petitioner Chito Baleros, Jr.,
and he was charged before the RTC of Manila of
attempted rape. Chito averred that he was not at
Malou’s apartment at the time of the incident.
The RTC convicted him of attempted rape, and
the CA affirmed the conviction.
Issue: Whether Baleros, Jr. is guilty of attempted
rape.
Ruling: No,
According to the Solicitor General, the act of
Chito of pressing on Malou’s face the piece of
cloth soaked in chemical while holding her
body tightly under the weight of his own, had
commenced the performance of an act
indicative of an intent or attempt to rape the
victim. He added that if Chito’s intention was
otherwise, he would not have lain on top of
the victim.
Under Article 335 of the Revised Penal Code,
rape is committed by a man who has carnal
knowledge or intercourse with a woman under
any of the following circumstances: (1) By using
force or intimidation; (2) When the woman is
deprived of reason or otherwise unconscious;
and (3) When the woman is under twelve years
of age or is demented. Under Article 6, in
relation to the aforementioned article of the
same code, rape is attempted when the offender
commences the commission of rape directly by
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overt acts and does not perform all the acts
of execution which should produce the crime
of rape by reason of some cause or accident
other than his own spontaneous desistance.
Expounding on the nature of an attempted
felony, the Court, speaking thru Justice Claro
M. Recto in People vs. Lamahang, stated that
"the attempt which the Penal Code punishes is
that which has a logical connection to a
particular, concrete offense; that which is the
beginning of the execution of the offense by
overt acts of the perpetrator, leading directly
to its realization and consummation." Absent
the unavoidable connection, like the logical and
natural relation of the cause and its effect, as
where the purpose of the offender in
performing an act is not certain, meaning the
nature of the act in relation to its objective is
ambiguous, then what obtains is an attempt to
commit an indeterminate offense, which is not
a juridical fact from the standpoint of the Penal
Code.
There is absolutely no dispute about the
absence of sexual intercourse or carnal
knowledge in the present case. The next
question that thus comes to the fore is whether
or not the act of the petitioner, i.e., the
pressing of a chemical-soaked cloth while on
top of Malou, constitutes an overt act of rape.
Overt or external act has been defined as some
physical activity or deed, indicating the intention
to commit a particular crime, more than a mere
planning or preparation, which if carried out
to its complete termination following its natural
course, without being frustrated by external
obstacles nor by the voluntary desistance of
the perpetrator, will logically and necessarily
ripen into a concrete offense.
Harmonizing the above definition to the facts
of this case, it would be too strained to
construe petitioner's act of pressing a
chemical-soaked cloth in the mouth of
Malou which would induce her to sleep as
an overt act that will logically and
necessarily ripen into rape. As it were,
petitioner did not commence at all the
performance of any act indicative of an intent
or attempt to rape Malou. It cannot be
overemphasized that petitioner was fully
clothed and that there was no attempt on his
part to undress Malou, let alone touch her
private part. For what reason petitioner wanted
the complainant unconscious, if that was really
his immediate intention, is anybody’s guess.
The CA maintained that if the petitioner had
no intention to rape, he would not have lain
on top of the complainant. Plodding on, the
appellate court even anticipated the next step
that the petitioner would have taken if the
victim had been rendered unconscious. In other
words, the appellate court (CA) indulges in
plain speculation, a practice disfavored under
the rule on evidence in criminal cases. For,
mere speculations and probabilities cannot
substitute for proof required to establish the
guilt of an accused beyond reasonable doubt.
In Perez vs. Court of Appeals, the Court acquitted
therein petitioner of the crime of attempted
rape, pointing out that: “In the crime of rape,
penetration is an essential act of execution to
produce the felony. Thus, for there to be an
attempted rape, the accused must have
commenced the act of penetrating his
sexual organ to the vagina of the victim
but for some cause or accident other than
his own spontaneous desistance, the
penetration, however, slight, is not
completed.”
Lest it be misunderstood, the Court is not
saying that petitioner is innocent, under the
premises, of any wrongdoing whatsoever. The
information filed against petitioner contained an
allegation that he forcefully covered the face of
Malou with a piece of cloth soaked in
chemical. And during the trial, Malou testified
about the pressing against her face of the
chemical-soaked cloth and having struggled after
petitioner held her tightly and pinned her
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down. Verily, while the series of acts committed
by the petitioner do not determine attempted
rape, as earlier discussed, they constitute unjust
vexation punishable as light coercion under
Article 287 of the Revised Penal Code [end].
INDETERMINATE OFFENSE - the OA of a person
in relation to the intended felony is ambiguous. It
is necessary that the OA must be necessarily
connected to the felony. Only then he will be
punished of the said attempted felony.
X removed the jalousies in the window of the
house of Y. The intent of X is to rob the house of
its valuable things. After slowly removing the
jalousies and placing it on the ground, he was
about to enter, but he was arrested, he was
apprehended. He was charged of attempted
robbery.
Yet, he cannot be held liable of the crime charged
although the intent of the offender is to rob the
house since his overt act of removing the jalousies
and trying to enter the house are not overt acts
directly connected to robbery, he cannot be
convicted. Instead, it is only attempted trespass to
dwelling because the overt act of removing the
jalousies and trying to enter are overt acts directly
connected to the act of entering the dwelling.
2. That he does not perform all acts of execution
that would have produced the felony
What is the reason? Some cause other than his
spontaneous desistance. If he spontaneously
desists, he incurs no criminal liability.
Rivera vs. People [see Art. 3]
The victim was mauled, hit with hollow blocks,
Rivera brothers were able to pin him down on the
ground. Suddenly there was the siren of the
police, so the Rivera brothers fled. The medical
certificate showed that the victim only suffered
superficial injuries, only slight physical injuries,
yet they were charged of attempted murder.
SC: it is attempted murder. The first element was
present, they boxed the victim, they mauled him,
their intention was to kill him. Second, they were
not able to perform all acts of execution because
of the arrival of the police. Therefore, the non-
consummation of the crime was because of a
cause or accident other than the accused's own
spontaneous desistance.
Why attempted murder? Why not slight physical
injuries?
SC: there was intent to kill.
FACTORS TO BE CONSIDERED IN INTENT
TO KILL:
1. Evidence of motif
2. The nature and number of weapons used
by the offender
3. The nature, number and location of the
wounds inflicted on the victim
4. Manner of committing the crime
5. Acts and statements made by the
offender before, during and after the
commission of the crime
SC:
1. There was an altercation, day prior to the said
act was committed, therefore the motive was
to kill the victim
2. They mauled him all at the same time, he was
totally defenseless
3. Wounds inflicted were only superficial but
the SC said that was is because of the sudden
arrival of the police
4. They were all in conspiracy with one another
Hence, it is attempted murder and not merely a
slight physical injury
Ex. A shot B. B evaded the blow. He was not hit.
What crime was committed?
The crime committed was attempted homicide or
murder as the case may be. Even if the victim was
not hit, since the act of discharging the firearm
was with intent to kill the victim, it was already in
the attempted stage. Such act of firing the fire arm
was already an OA directly connected to the act of
homicide or murder as the case may be.
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Ex. A shot B with intent to kill, B sustained a
wound, so he was hit. However, the wound
sustained by B was a non-fatal wound.
What crime was committed by A against B?
Attempted homicide or murder as the case may
be. Because the wound sustained was not fatal or
non-mortal. It requires another act for the crime
to be consummated. No one would die by a non-
mortal or non-fatal wound.
Ex. A shot B with intent to kill. B was hit on a vital
organ. So he sustained a fatal, mortal wound.
However, he survived due to immediate medical
intervention.
What crime was committed by A against B?
It is already frustrated homicide or murder as the
case may be.
Valenzuela vs. People
SC: if the wound sustained by the victim is a
mortal wound but he survived due to immediate
medical intervention, the crime is in the
frustrated stage.
If the wound sustained by the victim is a non-fatal
or non-mortal wound, then the crime is only in the
attempted stage. The reason is that it is only when
the wound sustained is mortal or fatal that it can
be said that the said offender has already
performed all the acts of execution which would
produce the felony. However, the felony was not
produced by reason of a cause independent of his
will that is the immediate medical intervention.
If the wound sustained is non-fatal, non-mortal,
the offender has not yet performed all acts of
execution, he must perform another act of firing
in order to consummate the crime. Therefore it is
only in the attempted stage of committing the
felony.
People vs Labiaga, G.R. No. 202867, 15 July
2013
The SC said that if the wound inflicted on the
victim is a non-fatal wound, the crime is only in
the attempted stage. But if the wound is a mortal
wound and the victim survived, the crime is in the
frustrated stage. If the wound is non-fatal, it
cannot be said that the offender has performed all
the acts of execution. If it is a mortal wound, the
offender has performed all the acts of execution.
There is nothing left to be done.
Facts: One evening, appellant Regie Labiaga shot
Gregorio Conde just outside the latter’s house.
Gregorio shouted for help, causing his daughters
Judy & Glenelyn to come out of their house. When
they did so, Labiaga shot Judy in the abdomen.
Gregorio and Judy were rushed to the hospital, but
Judy was pronounced dead on arrival. George
recovered after treatment.
Labiaga and two other individuals were charged
with murder and frustrated murder, both with the
use of an unlicensed firearm, in the RTC of Iloilo.
Only Labiaga was convicted as charged. The CA
affirmed the conviction.
Issue: Whether Labiaga is guilty of frustrated
murder.
Ruling:
The Court notes, however, that appellant should
be convicted of attempted murder, and not
frustrated murder in Criminal Case No. 2002-
1777.
Article 6 of the Revised Penal Code defines
the stages in the commission of felonies:
Consummated felonies as well as those which
are frustrated and attempted, are punishable. A
felony is consummated when all the elements
necessary for its execution and accomplishment
are present; and it is frustrated when the
offender performs all the acts of execution
which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of
the will of the perpetrator. There is an attempt
when the offender commences the commission
of a felony directly by overt acts, and does not
perform all the acts of execution which should
produce the felony by reason of some cause
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or accident other than his own spontaneous
desistance.
In Serrano v. People, we distinguished a frustrated
felony from an attempted felony in this manner:
In [a] frustrated felony, the offender has
performed all the acts of execution which
should produce the felony as a consequence;
whereas in [an] attempted felony, the offender
merely commences the commission of a felony
directly by overt acts and does not perform all
the acts of execution. 2.) In [a] frustrated
felony, the reason for the non-accomplishment
of the crime is some cause independent of the
will of the perpetrator; on the other hand, in
[an] attempted felony, the reason for the
nonfulfillment of the crime is a cause or
accident other than the offender’s own
spontaneous desistance.
In frustrated murder, there must be evidence
showing that the wound would have been fatal
were it not for timely medical intervention. If
the evidence fails to convince the court that
the wound sustained would have caused the
victim’s death without timely medical attention,
the accused should be convicted of attempted
murder and not frustrated murder.
In the instant case, it does not appear that the
wound sustained by Gregorio Conde was
mortal. Since Gregorio’s gunshot wound was
not mortal, we hold that appellant should be
convicted of attempted murder and not
frustrated murder [end].
Frustrated Stage
When the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not
produce it by reason of causes independent of the
will of the perpetrator.
Here he is already in the objective stage; he had
performed all acts of execution which would
produce the felony. But it was not produced by
reason of causes independent of his will.
Ex. A wanted to kill his own father to get his
inheritance immediately and wanted to be rich.
Went to drug store and bought poison. Before
going home, he went to the house of his friend and
told his friend "tonight I will be rich, I will be
poisoning my father, I will be a millionaire." After
telling that to his friend, A ran to his house. Upon
reaching his house he was already taking the
poison out of the plastic. Meanwhile, the friend
went to the police and told plan of A to kill the
father. The friend and the police went to the
house of A and the father. Upon reaching the
house, they saw A in the act of taking out the said
poison from the plastic bag. A was arrested.
Is A liable of attempted parricide?
No. He is not yet liable of attempted parricide. The
act of buying poison, taking out of the plastic are
only preparatory act. It is not yet an OA directly
connected to parricide. He may use the poison not
really to kill the father, he may use it to kill insects
or pests. Therefore, he cannot be liable of
attempted parricide.
A mixed the poison to the juice of the father and
then he gave it to his father. The father was about
to drink the juice with poison. However, since the
father was clumsy, the glass fell from the hands of
the father.
Is A liable of attempted parricide?
Yes. He already liable. The moment he poured the
poison in the juice of the father and he gave it to
the father for him to drink, he already performed
an OA directly connected to parricide. However,
parricide was not consummated and he was not
able to perform all the acts of execution by reason
of an accident. It was purely accidental because
the father was clumsy and the glass slipped from
his hands.
In the same problem, after mixing the poison in
the juice, he gave it to his father. The father was
about to drink the juice with a poison when A
took pity on his father and had a change of heart.
He immediately grabbed the juice and threw it on
the garden.
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Is A liable of attempted parricide?
No. He is not liable of attempted parricide. The act
of mixing of the poison with the juice is an OA
directly connected to parricide, however, he was
not able to perform all acts of execution by reason
of his own spontaneous desistance. Therefore, he
is absolved of criminal lability. Because for one to
be liable in the attempted stage, the reason for the
non-consummation of the crime must not be his
own spontaneous desistance.
In the same problem, A mixed the poison with a
juice and gave it to his father. The father drank the
juice and was poisoned. Suddenly, he was already
showing signs of being poisoned, he was chilling.
Upon seeing his father in that condition, A
immediately administered an antidote to his
father, after that he immediately rushed his father
to the hospital. The father survived. The doctor
said, were it not for the antidote given by the son,
the father would have died.
Is the son liable of attempted parricide?
He is not liable of attempted parricide. Because
the moment the father drank the juice, all the acts
for the performance of the crime has already been
done. The offender has already performed all acts
of execution necessary to consummate the crime.
However, the crime was not consummated.
Is the son liable of frustrated parricide?
He is NOT also liable of frustrated parricide
because in frustrated parricide although the
offender has already performed all the acts of
execution, the reason for the non-consummation
of the crime must be a cause independent of his
will. The reason for the non-consummation of the
crime is the own will of the son. Therefore, the
son is not liable of frustrated homicide.
Definitely he is also not liable of consummated
parricide.
The son is liable of physical injuries depending on
the required medical intervention. 1-9 days slight
physical injuries. 10-30 days less serious physical
injuries, more than 30 days serious physical
injuries.
Abella v. People, G.R. No. 198400, 7 October
2013
Facts: Fe Abella was charged with frustrated
homicide committed against his younger brother
Benigno, in the RTC of Misamis Oriental, CDO
City.
Benigno was asked to pacify his brother Fe, who
was fighting with Alejandro and Dionisio. He was
able to convince Fe to go home. Benigno and his
wife followed suit and along the way, dropped by
the houses of Alejandro and Dionisio to apologize
for Fe’s conduct. When they were at Alejandro’s
house, Fe arrived bringing with him two scythes,
one in each hand. Fe wanted to enter Alejandro’s
house but Benigno blocked him. Fe hacked
Benigno’s neck once, causing the latter to fall.
Benigno was immediately rushed to the hospital
while Fe chased Alejandro. Benigno suffered hack
wounds on his neck and left hand.
Fe denied hacking his brother, and claimed that at
the time of the hacking, he and his family resided
4 hours drive away from where the incident
occurred.
The RTC convicted Fe of frustrated homicide. On
appeal to the CA, Fe claimed that the RTC failed
to establish his intent to kill Benigno. The CA
affirmed the RTC, holding that intent to kill was
sufficiently proven.
Issue: Whether the RTC and CA erred in
convicting Fe for frustrated homicide instead of
either acquitting him or convicting him of serious
physical injuries.
Ruling: Petition DENIED.
In cases of frustrated homicide, the main
element is the accused’s intent to take his
victim’s life. The prosecution has to prove this
clearly and convincingly to exclude every possible
doubt regarding homicidal intent. And the intent
to kill is often inferred from, among other things,
the means the offender used and the nature,
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location, and number of wounds he inflicted on his
victim.
Fe now wants to impress upon this Court that he
had no motive to attack, much less kill Benigno. Fe
likewise invokes the doctrine in Pentecostes, Jr. to
argue that homicidal intent is absent in a case
where the accused shot the victim only once when
there was an opportunity to do otherwise. The
petitioner belabors his claim that had he intended
to kill Benigno, he could have repeatedly hacked
him to ensure the latter’s death, and not leave right
after the blow to chase Alejandro instead.
The analogy is flawed.
In Pentecostes, Jr., the victim was shot only once in
the arm, a non-vital part of the body. The attending
physician certified that the injury would require
medical attendance for ten days, but the victim was
in fact promptly discharged from the hospital the
following day.
In Benigno’s case, he sustained an 11-centimeter
long hacking wound in the neck and a 4-cm long
incised wound in his left hand caused by the
unsterile scythe used by Fe. Dr. Ardiente testified
that “it is possible to have complications [resulting
from these] injuries because the wounds [were]
extensive and [they were] big and [they were open
wounds], so there is a possibility of infection[s]
[resulting from these] kind[s] of wounds, and the
instrument used [was] not [a] sterile instrument
contaminated with other thing[s].” No
complications developed from Benigno’s wounds
which could have caused his death, but he was
confined in the hospital for a period of 17 days.
From the foregoing, this Court concludes and thus
agrees with the CA that the use of a scythe
against Benigno’s neck was determinative of
Fe’s homicidal intent when the hacking blow
was delivered. It does not require imagination to
figure out that a single hacking blow in the neck
with the use of a scythe could be enough to
decapitate a person and leave him dead. While no
complications actually developed from the gaping
wounds in Benigno’s neck and left hand, it
perplexes logic to conclude that the injuries he
sustained were potentially not fatal considering the
period of his confinement in the hospital. A mere
grazing injury would have necessitated a lesser
degree of medical attention.
This Court likewise finds wanting in merit the Fe’s
claim that an intent to kill is negated by the fact that
he pursued Alejandro instead and refrained from
further hacking Benigno. What could have been a
fatal blow was already delivered and there was no
more desistance to speak of. Benigno did not die
from the hacking incident by reason of a timely
medical intervention provided to him, which is a
cause independent of the petitioner’s will [end].
ATTEMPTED FELONY vs FRUSTRATED
FELONY
In the attempted felony, the offender merely
commences the commission of the felony by overt
acts. In a frustrated felony, the offender has
already performed all the acts of execution.
In an attempted felony, the felony was not
consummated by reason of some cause or accident
other than the offender's spontaneous desistance.
In a frustrated felony, the felony was not
consummated by reason of some cause
independent of the will of the perpetrator.
In an attempted felony, the offender is only in the
subjective phase of the felony. He still has control
over his acts. Whereas in the frustrated stage of
committing a felony, the offender is already in the
objective phase of committing the felony. He no
longer has any control over his acts.
CONSUMMATED FELONY
A felony is consummated when all the elements
necessary for its execution and accomplishment are
present.
Example:
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X saw his enemy Y. He went to his house to get
his pistol, pointed the gun at the head of Y and
pulled the trigger. However the gun jammed, no
bullet came out. X is liable of attempted homicide.
The act of X of pointing the gun and pulling the
trigger with intent to kill are overt acts directly
connected to homicide. He was unable to perform
all the acts of execution because it is purely
accidental that the gun did not fire. It was not by
reason of his desistance. Therefore, he is liable for
attempted homicide.
Same problem:
With intent to kill X pointed the gun to Y. He
pulled the trigger, no bullet came out. He again
pulled the trigger but no bullet came out. Then he
looked at the gun, it was unloaded. Is X liable of
attempted homicide?
X is liable of an impossible crime.
Why not attempted homicide?
Because when the gun has no bullet, there is
inherent impossibility to consummate the crime.
Here, what is present is physical or factual
impossibility unknown to the offender. There was
physical impossibility and the same was not known
to the offender. Under any and all circumstances,
it will never fire. Hence, what we have now is an
impossible crime and not anymore an attempted
felony.
ATTEMPTED FELONY vs IMPOSSIBLE
CRIME
In impossible crime, the act of execution of the
felony is not possible of accomplishment. Whereas
in attempted felony, the act of execution is possible
of accomplishment.
In impossible crime, the act was not accomplished
because of the inherent impossibility. In
attempted, the act was not consummated by reason
of some cause or accident other than offender's
spontaneous desistance.
Example:
X in the course of a fight stabbed Y but Y was able
to evade. What crime is committed by X?
Attempted homicide.
The act of X in trying to stab Y with the use of a
knife is an overt aft directly connected to homicide
yet he was not able to perform all the acts of
execution because it was purely accidental that Y
was able to evade the blow.
Same problem:
Y was hit and sustained a wound. The wound was
in the chest. Doctor said that it would heal within
a period of 60days. What crime was committed?
Attempted homicide.
The act of stabbing Y and hitting him with the
effect of Y sustaining a wound which would heal
within 60days are overt acts directly connected
with the crime of homicide. However, he was not
able to perform all the acts of execution because
the wound he inflicted on Y is a non-fatal wound.
Same problem:
Y was hit and the knife pierced through the heart.
The wound was fatal but he survived because of
the immediate medical operation performed. What
crime? Frustrated homicide.
When he stabbed Y, he hit a vital organ thereby
inflicting upon him a mortal wound. He has already
performed all the acts of execution but still the
victim survived because of a cause independent of
his will which is the immediate medical
intervention.
Material Crimes - if a crime admits stages of
attempted, frustrated and consummated
Formal Crimes - if a crime does not admit of any
stage [except consummated.] They are called
formal crimes because they are crimes based on
consequence, based on the result. Punished only
in consummated stage.
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Ex. Adultery is a formal crime, it is a crime of
consequence, a crime of result, it admits no
stages. There is no such thing as attempted or
frustrated adultery, only consummated.
Physical injuries does not admit attempted or
frustrated stage because the penalty is based on
the injury sustained by the victim.
Other formal crimes: Slander, False Testimony
CRIMES WHICH DO NOT ADMIT OF
FRUSTRATED STAGE:
1. THEFT
Valenzuela vs People
Theft does not have frustrated stage, only
attempted and consummated stages.
As held in that case, in case of theft, there cannot
be frustration because the moment unlawful taking
is complete, theft is consummated. The unlawful
taking is complete when the offender gains
possession of the personal property of another
even if there is no opportunity to dispose of the
said property.
Under Art. 308 in relation to Art. 309, theft is
committed when the person takes the personal
property of another with intent to gain without
violence, force or intimidation upon persons or
things without the consent of the owner. (Edit)
Theft can admit only either an attempted and
consummated stage because the moment the
offender gains possession of the personal
property of another, unlawful taking is already
committed. Even if he has no opportunity to
dispose of the property and the moment the
unlawful taking is complete, theft is already
consummated. Hence, there can be no instance of
frustrated theft.
If the accused had intent to gain but was unable to
actually gain possession, it is attempted theft.
Up to 2006, there is attempted, frustrated and
consummated. But in 2007, the SC said no, there
can be no frustrated theft.
Valenzuela v. People, G.R. No. 160188, 21 June
2007
Facts: Petitioner Aristotel Valenzuela and
Calderon were seen carting away from the Super
Sale Club supermarket of SM North Edsa cases of
Tide detergent. They loaded the detergent onto a
taxicab and tried to leave the parking area, but they
were stopped by the guards. They were
apprehended and were eventually charged with
theft in the RTC of QC.
They were convicted as charged. Both appealed to
the CA, but Calderon did not file a brief, thus his
appeal was dismissed. Valenzuela argued that he
should only be convicted of frustrated theft
since at the time he was apprehended, he was
never placed in a position to freely dispose of
the articles stolen. The CA disagreed and affirmed
his conviction.
Issue: Whether Valenzuela is guilty of frustrated
theft on the ground that he was unable to freely
dispose of the detergent.
Ruling: Petition DENIED.
Article 308 provides for a general definition of
theft, and three alternative and highly
idiosyncratic means by which theft may be
committed. In the present discussion, we need
to concern ourselves only with the general
definition since it was under it that the
prosecution of the accused was undertaken and
sustained. On the face of the definition, there
is only one operative act of execution by the
actor involved in theft: the taking of personal
property of another. It is also clear from the
provision that in order that such taking may
be qualified as theft, there must further be
present the descriptive circumstances that the
taking was with intent to gain; without force
upon things or violence against or intimidation
of persons; and it was without the consent of
the owner of the property.
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On the critical question of whether it was
consummated or frustrated theft, we are obliged
to apply Article 6 of the Revised Penal Code
to ascertain the answer. Following that
provision, the theft would have been frustrated
only, once the acts committed by petitioner, if
ordinarily sufficient to produce theft as a
consequence, "do not produce [such theft] by
reason of causes independent of the will of the
perpetrator." There are clearly two
determinative factors to consider: that the felony
is not "produced," and that such failure is due
to causes independent of the will of the
perpetrator. The second factor ultimately
depends on the evidence at hand in each
particular case. The first, however, relies
primarily on a doctrinal definition attaching to
the individual felonies in the Revised Penal
Code as to when a particular felony is "not
produced," despite the commission of all the
acts of execution. So, in order to ascertain
whether the theft is consummated or frustrated,
it is necessary to inquire as to how exactly is
the felony of theft "produced." Parsing through
the statutory definition of theft under Article
308, there is one apparent answer provided in
the language of the law –that theft is already
"produced" upon the "tak[ing of] personal
property of another without the latter's
consent."
The ability of the offender to freely dispose of
the property stolen is not a constitutive element
of the crime of theft. It finds no support or
extension in Article 308, whether as a
descriptive or operative element of theft or as
the mens rea or actus reus of the felony. Xxx
Such factor runs immaterial to the statutory
definition of theft, which is the taking, with
intent to gain, of personal property of another
without the latter's consent. While the
Diño/Flores dictum is considerate to the mindset
of the offender, the statutory definition of theft
considers only the perspective of intent to gain
on the part of the offender, compounded by
the deprivation of property on the part of the
victim.
For the purpose of ascertaining whether theft
is susceptible of commission in the frustrated
stage, the question is again, when is the crime
of theft produced? There would be all but
certain unanimity in the position that theft is
produced when there is deprivation of personal
property due to its taking by one with intent
to gain. Viewed from that perspective, it is
immaterial to the product of the felony that
the offender, once having committed all the acts
of execution for theft, is able or unable to
freely dispose of the property stolen since the
deprivation from the owner alone has already
ensued from such acts of execution. This
conclusion is reflected in Chief Justice Aquino's
commentaries, as earlier cited, that "[i]n theft
or robbery the crime is consummated after the
accused had material possession of the thing
with intent to appropriate the same, although
his act of making use of the thing was
frustrated."
It might be argued, that the ability of the
offender to freely dispose of the property stolen
delves into the concept of "taking" itself, in
that there could be no true taking until the
actor obtains such degree of control over the
stolen item. But even if this were correct, the
effect would be to downgrade the crime to its
attempted, and not frustrated stage, for it would
mean that not all the acts of execution have
not been completed, the "taking not having
been accomplished."
Indeed, we have, after all, held that unlawful
taking, or apoderamiento, is deemed complete
from the moment the offender gains possession
of the thing, even if he has no opportunity to
dispose of the same.
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With these considerations, we can only
conclude that under Article 308 of the
Revised Penal Code, theft cannot have a
frustrated stage. Theft can only be
attempted or consummated.
Neither Diño nor Flores can convince us
otherwise. Both fail to consider that once the
offenders therein obtained possession over the
stolen items, the effect of the felony has been
produced as there has been deprivation of
property. The presumed inability of the
offenders to freely dispose of the stolen
property does not negate the fact that the
owners have already been deprived of their
right to possession upon the completion of the
taking.
Moreover, as is evident in this case, the
adoption of the rule "that the inability of the
offender to freely dispose of the stolen
property frustrates the theft –would introduce a
convenient defense for the accused which does
not reflect any legislated intent [end].
Canceran v. People, G.R. No. 206442, 1 July
2015
Facts: An information was filed in the RTC of
Misamis Oriental, CDO, charging Jovito Canceran
and 2 others with “frustrated theft” of 14 cartons
of Pond’s White Beauty Cream belonging to
Ororama Mega Center grocery store.
The prosecution alleged that Canceran paid for 2
boxes of Magic Flakes at the counter of Ororama.
One of the security guards and the packer
inspected the boxes and found that they contain 14
boxes of Pond’s cream. Canceran hurriedly left and
a chase ensued, but he was caught by Ororama
employees.
Canceran denied the charges against him, claiming
that a man requested him to pay for the latter’s
items in his cart at the cashier, and these items were
the 2 boxes of Magic Flakes. Afterwards, he tried
to leave Ororama but 3 persons ran after him and
caught him.
The RTC found him guilty of consummated theft
in line with the Valenzuela ruling that there is no
crime of frustrated theft. The CA affirmed the
RTC ruling, debunking Canceran’s contention that
there was no taking on the basis that he merely
pushed the cart loaded with the goods to the
cashier’s booth. The CA held that unlawful taking
was complete from the moment Canceran gained
possession of the Cream, even if he had no
opportunity to dispose of the same.
Issue: Whether Canceran should be acquitted in
the crime of theft as it was not charged in the
Information.
Ruling: No
Unlawful taking, which is the deprivation of one's
personal property, is the element which produces
the felony in its consummated stage. At the same
time, without unlawful taking as an act of
execution, the offense could only be attempted
theft, if at all.
It might be argued, that the ability of the offender
to freely dispose of the property stolen delves into
the concept of 'taking' itself, in that there could be
no true taking until the actor obtains such degree
of control over the stolen item. But even if this
were correct, the effect would be to downgrade the crime to
its attempted, and not frustrated stage, for it would mean
that not all the acts of execution have not been
completed, the "taking not having been
accomplished.
A careful reading of the allegations in the
Information would show that Canceran was
charged with "Frustrated Theft" only. Pertinent
parts of the Information read: xxx take, steal and
carry away 14 cartons of Ponds White Beauty
Cream valued at P28,627,20, belonging to
Ororama Mega Center, thus performing all the
acts of execution which would produce the
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crime of theft as a consequence, but
nevertheless, did not produce it by reason of
some cause independent of accused's will.
As stated earlier, there is no crime of Frustrated
Theft. The Information can never be read to
charge Canceran of consummated Theft because
the indictment itself stated that the crime was never
produced. Instead, the Information should be
construed to mean that Canceran was being
charged with theft in its attempted stage only.
Necessarily, Canceran may only be convicted
of the lesser crime of Attempted Theft.
An accused cannot be convicted of a higher
offense than that with which he was charged in the
complaint or information and on which he was
tried. It matters not how conclusive and
convincing the evidence of guilt may be, an
accused cannot be convicted in the courts of any
offense, unless it is charged in the complaint or
information on which he is tried, or necessarily
included therein. He has a right to be informed as
to the nature of the offense with which he is
charged before he is put on trial, and to convict
him of an offense higher than that charged in the
complaint or information on which he is tried
would be an unauthorized denial of that right.
Indeed, an accused cannot be convicted of a crime,
even if duly proven, unless it is alleged or
necessarily included in the information filed against
him. An offense charged necessarily includes the
offense proved when some of the essential
elements or ingredients of the former, as alleged in
the complaint or information, constitute the latter.
The crime of theft in its consummated stage
undoubtedly includes the crime in its attempted
stage. In this case, although the evidence presented
during the trial prove the crime of consummated
Theft, he could be convicted of Attempted Theft
only [end].
The husband and the wife went to the department
store. The husband took 5 pairs of shorts, went to
the fitting room. After 10 minutes, he got out, went
to the saleslady. He was stopped. It was discovered
that he was wearing the shorts. What crime?
Consummated theft. Even if he has no
opportunity to dispose because he was discovered
by the guard before leaving the store. The fact that
he had already taken it and wore it, he had already
gained possession of the personal property of the
store hence he is already liable for consummated
theft.
A woman went to Rustan’s and bought perfume.
While she was sitting and the saleslady was
taking the perfume in the counter, she saw a new
line of lipsticks on a glass shelf. A note was posted
on the glass shelf saying, “Do not open, ask for
assistance”. She went there but it was locked. Saw
the key on the table and opened it, took one and
slipped in inside her bag, closed the glass, placed
the key back on the table. The saleslady arrived
and gave her the perfume. She was about to leave
Rustan’s when suddenly this certain device
detected and made a sound, so the unpaid lipstick
was discovered.
What crime was committed?
Consummated Theft. Even if she has not yet left
Rustan’s, the moment she took the lipstick from
the glass shelf, taking is already complete, theft is
already consummated.
In the same problem, woman took a lipstick and
slipped it inside her bag. Suddenly she has a
change of heart. She took the lipstick from her
back and placed it back on the glass shelf and the
closed the glass and locked it.
Did she commit any crime?
Yes. She is already liable of consummated rape.
The moment she took the lipstick from the glass
shelf and placed it inside her bag, taking is already
complete, therefore, theft is already
consummated. Her change of heart would not
amount to desistance. Too late. Desistance will
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only lie in the attempted stage but never in the
consummated nor in the frustrated stage.
What is the effect of returning back the lipstick?
There will only be NO civil liability. She will not
be made to pay the lipstick because she returned
it but nevertheless, she is already liable for
consummated theft because unlawful taking is
already committed. This is desistance on her part
but this will not acquit her as the theft was
already consummated. It will only be akin to a
mitigating circumstance, and will reduce her
criminal liability.
In the same case, the woman opened the glass
shelf. She was about to take the lipstick when
suddenly there was this hand placed on top of her
hand before she could even get the lipstick.
Unknown to her, her acts were being seen on a
CCTV camera and the head of the administrative
office immediately went to her upon seeing that
she was about to take the lipstick.
Is the woman liable of any crime?
Yes. She is already liable of attempted theft. A
note was posted on the glass shelf saying, do not
open, ask for assistance. The moment she opened
it with use of the key, it shows her intent to gain.
It is on the attempted stage because she has not
yet taken possession of the personal property of
another.
2. RAPE
As held in the case of People vs Quiñanola, there
is no frustration in rape.
People vs Quiñanola & Floro, G.R. No. 126148,
5 May 1999
There is no frustration in rape because as defined
by the law rape is committed by having carnal
knowledge of a woman against her will. Since the
law uses the word carnal knowledge and not sexual
intercourse, therefore the mere touching by the
penis of the man of the lips of the labia of the
woman's genitalia would already consummate the
crime of rape.
There must be penetration to consummate rape.
Only the slightest-mere touching of the labia-is
required.
Facts: One evening 15-yr old Catalina Carciller
with her male cousin and another male companion
were on their way home from a dance when
Quiñanola & Floro-both armed with guns
suddenly turned up. The two males were instructed
to lie face down on the ground, but they were able
to escape. Catalina was forced to sit on the ground,
and was instructed at gunpoint to remove her
pants. She resisted but Floro succeeded in
undressing her. Quiñanola unzipped his pants &
laid on top of her while Floro held her legs.
Quiñanola pumped and pushed and pulled, and
she felt his organ on the lips of her genitalia.
Afterwards, Floro took his turn by placing himself
on top of Catalina, and she felt his organ on the
lips of her vulva while Floro made a push and pull
movement.
Quiñanola and Floro were charged with rape in the
RTC of Cebu City, which convicted them of
frustrated rape.
Issue: Whether the RTC erred in convicting them
of frustrated rape.
Ruling:
In the context it is used in the Revised Penal
Code, "carnal knowledge," unlike its ordinary
connotation of sexual intercourse, does not
necessarily require that the vagina be penetrated
or that the hymen be ruptured. The crime of
rape is deemed consummated even when the
man's penis merely enters the labia or lips of
the female organ or, as once so said in a case,
by the "mere touching of the external genitalia
by a penis capable of consummating the sexual
act."
The trial court, in convicting appellants only of
frustrated rape, ruled that there was no
"conclusive evidence of penetration of the genital
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organ of the offended party," in that: (a) Catalina
had admitted that she did not spread her legs
and (b) the medico-legal officer's findings showed
she did not sustain any extragenital injuries and her
hymenal orifice was so small that an erect average-
size penis would not have completely penetrated it
without causing laceration.
Let it be said once again that, as the Revised
Penal Code presently so stands, there is no
such crime as frustrated rape. In People vs. Orita,
the Court has explicitly pronounced: "Clearly, in
the crime of rape, from the moment the offender
has carnal knowledge of his victim, he actually
attains his purpose and, from that moment also all
the essential elements of the offense have been
accomplished. Nothing more is left to be done by
the offender, because he has performed the last act
necessary to produce the crime. Thus, the felony is
consummated. In a long line of cases, We have set
the uniform rule that for the consummation
of rape, perfect penetration is not essential.
Any penetration of the female organ by the
male organ is sufficient. Entry of the labia
or lips of the female organ, without rupture of
the hymen or laceration of the vagina is sufficient
to warrant conviction. Necessarily, rape is
attempted if there is no penetration of the female
organ because not all acts of execution was
performed. The offender merely commenced the
commission of a felony directly by overt acts.
Taking into account the nature, elements and
manner of execution of the crime of rape and
jurisprudence on the matter, it is hardly
conceivable how the frustrated stage in rape can
ever be committed. xxxx
The Court is not unaware that Republic Act No.
7659, amending Article 335 of the Revised Penal
Code, has retained the provision penalizing with
reclusion perpetua to death an accused who commits
homicide by reason or on the occasion of an
attempted or frustrated rape. Until Congress sees it fit
to define the term frustrated rape and thereby
penalize it, the Court will see its continued usage in
the statute book as being merely a persistent lapse
in language.
Each appellant is liable for two counts of
consummated rape on account of a clear
conspiracy between them shown by their obvious
concerted efforts to perpetrate, one after the other,
the crime. Each of them, therefore, is responsible
not only for the rape committed personally by him
but also for the rape committed by the other as well
[end].
People vs Pareja
It is settled in jurisprudence that the slightness of
penetration already consummates the crime of
rape. But if what the penis has touched is not even
the labia of the pudendum of the woman's genitalia
but only the outer surface, the crime can either be
attempted rape or acts of lasciviousness.
When the penis of the woman touched the surface
of the woman's genitalia, there is intent to lie with
the victim. The crime committed is attempted rape.
But absent intent to lie, the crime committed
is acts of lasciviousness.
Intent to lie distinguishes attempted rape from
acts of lasciviousness.
In that case, the man went inside the bedroom,
undressed the girl, undressed himself, tried to
insert his penis into the genitalia of the girl. The girl
cried and cried, the man left. Supreme Court said
these acts of the man show that he has the intent
to lie with the girl. Attempted rape not merely acts
of lasciviousness.
As opposed to Cruz vs People. In that case the
SC said that the mere act of a man of climbing on
top of a naked woman absent any evidence that his
erected penis has the capability to penetrate the
genitalia of the woman does not bring about the
crime of rape. Those acts do not show intent to
rape absent said evidence. Crime committed was
acts of lasciviousness and not attempted rape.
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A woman was raped. She filed a case of rape
against the man. In her open court testimony, she
said she was not sure if the penetration was
complete. Likewise in the medical certificate it
shows that her hymen was not lacerated, it was
intact.
Can the said man be liable of consummated rape?
Yes. Because according to the SC, Rape does not
admit of any frustrated stage. Rape is
consummated the moment the penis has touched
the lips or the labia of the pudendum of a
woman's genitalia. It is not necessary that there is
full or complete penetration nor a hymenal
laceration. The hymen may remain intact yet rape
can be committed because what is required is the
penis must touch lips or the labia.
People vs. Lizada
The man was still in his shorts. His penis has not
yet even touched the genitalia of the girl. He only
touched the private parts of the girl.
How come the conviction was for attempted rape
and not mere acts of lasciviousness?
SC: Attempted rape because the SC [took] into
consideration the 3 other consummated rape that
has been done by the stepfather on the daughter.
Considering that in these 3 former acts rape had
been consummated, the obvious intent of the
stepfather is to rape the girl. It just so happen that
he saw the son peeping and so he went out of the
room. That is the reason given.
If that is the reason given without the said facts
that there has been consummated rape for the
past 3 acts, it should only be acts of lasciviousness
or at least attempted rape if there in an intent to
lie. In the case, the stepfather was still in his
shorts, the penis has not yet touched even the
outer portion of a woman's genitalia. Absent the
facts that there were 3 former consummated
rape, it should only be acts of lasciviousness.
Because to amount to at least attempted stage, it
is necessary that the penis must touch at least the
outer portion to show intent to lie. The man was
still in his shorts, how can you know that there
was intent to lie. It is only a different ruling
because there were 3 previous consummated
rape and the SC considered all these saying that
the obvious intent of the stepfather was also to
rape the daughter.
People vs. Jalosjos
Jalosjos was charged with many cases. In one
case, the penis has only touched that outer
portion which becomes hairy during puberty, not
yet the lips but that outer portion which becomes
hairy.
SC: it was only acts of lasciviousness.
How did the SC distinguish acts of lasciviousness
from attempted rape. If the penis touches the said
outer portion and there was an obvious intent to
lie with the girl, it is attempted rape. If no obvious
intent to lie or have carnal knowledge of the girl,
it only acts of lasciviousness.
That is only one of the cases because in other
cases he was convicted of consummated rape.
3. IMPOSSIBLE CRIME
In IC, the offender already performed all the acts
of execution-it is already consummated-but the
intended crime was not produced as a result
because of its inherent impossibility or
inadequacy/ineffectuality of the means
employed.
Art. 7. When light felonies are punishable. —
Light felonies are punishable only when they have
been consummated, with the exception of those
committed against person or property.
GR: Light felonies are punishable only when they
are on their consummated stage.
XPN: Against person or property
Art. 8. Conspiracy and proposal to commit felony.
— Conspiracy and proposal to commit felony are
punishable only in the cases in which the law
specially provides a penalty therefor.
A conspiracy exists when two or more
persons come to an agreement concerning the
commission of a felony and decide to commit it.
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There is proposal when the person who has
decided to commit a felony proposes its execution
to some other person or persons.
Conspiracy is a bilateral act. The must be at least
2 persons who agreed to the commission of the
crime. Proposal to commit a crime is a unilateral
act. Only 1 person who has decided to commit the
felony proposes it to another person. Is that
another person agreed to the commit the crime,
there is now conspiracy.
Conspiracy as rule is not a punishable act,
likewise proposal to commit a crime is not a
punishable act because they are mere
preparatory acts.
Exception to the rule as provided for in the first
paragraph of Art 8 when the law specially
provides a penalty therefor xxx then conspiracy
and proposal to commit a crime are crimes by
themselves. They are punishable act[s].
If conspiracy or proposal to commit a crime are
provided in penalties by law, it is not necessary
that there be an overt act committed. The mere
act of conspiring or proposing will already give
rise to a crime.
Ex. conspiracy to commit treason, rebellion,
sedition. In SPL conspiracy to commit terrorism.
It is not necessary that there be overt acts. They
are punishable acts by themselves.
CONSPIRACY AS A MEANS OF COMMITTING A
CRIME
If conspiracy is only a means of committing a
crime it is not yet a punishable act. The mere act
of conspiring will make the offenders co-
conspirators but they are not yet punishable, they
are not yet criminally liable.
TWO KINDS OF CONSPIRACY
1. Direct or Express Conspiracy - when the
offenders or conspirators met, planned, agreed,
decided to commit a crime. There is a
preconceived plan prior to the commission of the
crime.
For one to be criminally liable, it is necessary that
he is not only a part of the agreement, he must
also be present at the time of the commission of
the crime. Even if he is part of the agreement if at
the time of the commission of the crime he failed
to appear, such failure on his part to appear at the
scene of the crime would be construed by law as
a desistance. Therefore, even if he part of the
agreement he will not be liable as a conspirator.
Ex. A, B and C decided to kill X on a particular date
and time. On the said date and time, A and B
arrived and killed X. However, C failed to appear.
Although C was part of the agreement, he cannot
be held criminally liable as a conspirator for the
crime of murder because he failed to appear at
the scene of the crime. His failure to appear is
construed by law as a desistance on his part.
In the same problem but all were present. A and
B were about to kill X but C performed acts
preventing A and B from committing the crime.
Although C was a conspirator, part of the
agreement, although he appeared at the scene of
the crime. Since C performed acts trying to
prevent A and B from committing the crime, he
cannot be held criminally liable as a conspirator
for the crime of murder in the said case.
For a conspirator to be held liable, he must be
part of the agreement and he must be present
at the scene of the crime to commit the crime.
His failure to appear is desistance and therefore,
he cannot be held criminally liable. Likewise even
if he appeared at the scene of the crime but he
performed acts to prevent others from
committing the crime, he is also not criminally
liable.
People v. Pagalasan, et al., G.R. No. 131926 &
138991, 18 June 2003
Facts: On the evening of Sept. 4, 1994 Spouses
George and Desiree Lim and their 3 young
children, one of whom was Christopher, were in
their house watching TV when 4 masked and
armed men entered their house. The men took
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valuables and left Desiree a note, while they forced
George and Christopher into George’s car. They
drove away, and blindfolded George and
Christopher. The car stopped and three of the
kidnappers and Christopher alighted. The car
drove off with one of the kidnappers and George.
Near a police checkpoint the masked driver
switched off the headlights and removed his
bonnet and George’s blindfold. George looked at
the driver, who turned out to be the appellant
Michael Pagalasan. Eventually, Pagalasan was
taken into police custody. George returned home
after giving his affidavit, where he learned that the
kidnappers were to communicate with them only
through “Mubarak II or 2”.
Michael initially confessed that he acted in cahoots
with the brothers Ronnie and Aladin Cabalo,
Ferdinand and Bong. Thus, the Cabalo brothers,
Puntuan and Quizon were arrested. On 6
September, George received another letter
demanding the release of the Cabalos and P 3M
for Christopher’s release. On 9 Sept., George
received a letter from Mubarak II or 2, demanding
among others that their son would not be released
unless Puntuan was released. On 10 Sept.
Christopher was rescued by the police without any
ransom money being paid.
Pagalasan was charged with violation of PD 1866
in the RTC of General Santos. Also, He, along
with the Cabalos, Cortez, a Fernando and Peter
Doe were charged with kidnapping for ransom
before the same trial court.
Pagalasan was convicted of kidnapping for ransom
of George and Christopher, giving full credence to
George’s testimony of the incident.
Issue:
1. Whether Pagalasan is guilty of kidnapping
2. Whether the prosecution failed to prove
that Pagalasan (and his cohorts) intended
to extort ransom
Ruling: RTC decision AFFIRMED WITH
MODIFICATION
1. Pagalasan is guilty of kidnapping
In this case, the evidence on record inscrutably
shows that Pagalasan and his three cohorts were
armed with handguns; two of them had hand
grenades, and all of them had masks over their
faces. They gained entry into the Lim residence
after overpowering the security guard Ferdinand
and the housemaid Julita, and tying their hands
behind their backs. One of the masked men
remained in the sala, while the three others barged
into the bedroom of George and Desiree, and
kidnapped George and his ten-year-old son
Christopher. Pagalasan and his cohorts forced
father and son to board George's car. The
appellant drove the car, dropped off Christopher
and his cohorts at Sitio Tupi, and drove on with
George in the car towards the direction of Maasim.
The collective, concerted and synchronized acts of
the appellant and his cohorts before, during and
after the kidnapping constitute indubitable proof
that Pagalasan and his three companions conspired
with each other to attain a common objective: to
kidnap George and Christopher and detain them
illegally. Pagalasan was a principal by direct
participation in the kidnapping of the two victims.
2. The prosecution failed to prove that
Pagalasan (and his cohorts) intended to
extort ransom.
The prosecution failed to prove that they intended
to extort ransom from the victims themselves or
from some other person, with a view to obtaining
the latter's release. The kidnapping by itself does
not give rise to the presumption that Pagalasan and
his co-conspirators' purpose is to extort ransom
from the victims or any other person.
The only evidence adduced by the prosecution to
prove the element of extorting ransom are the
three handwritten letters: the first was received by
Desiree on September 4, 1994, while the second
and third letters were received by George on
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September 6 and 9, 1994, respectively.
As gleaned from the three letters, there was no
demand for ransom in exchange for George and
Christopher's liberty. While there is a demand for
ransom of P3,000,000 in the second letter, and a
demand for the release of Ronie Puntuan within
three days in the third letter, the said demands are
in consideration of Christopher's release from
custody, and not that of George.
Even then, the prosecution failed to adduce
evidence that the second letter demanding
ransom in the amount of P3,000,000 for the release
of Christopher actually came from Pagalasan and
his co-conspirators. It bears stressing that in the
first letter, the kidnappers made it clear to the
couple that only those communications, whether
by letter or by telephone, bearing the name "MR.
MUBARAK II or 2" came from them.
The second letter received by George was signed
by an unidentified person. It was not stated that the
letter came from "MUBARAK II-2." That the
second letter could not have come from
Pagalasan and his cohorts is buttressed by the fact
that the third letter, which came from
"MUBARAK II-2," does not even mention any
demand for ransom in the amount of P3,000,000
for Christopher's release.
The Court can only surmise, but it is possible that
the signatory and sender of the second letter
could have been acting independently of Pagalasan
and his coconspirators in order to profit from the
kidnapping. It bears stressing that the kidnapping
of Christopher and George was already known
when the appellant was arrested on September 4,
1994, and the crime had already been reported to
the police authorities. Persons other than the co-
conspirators of Pagalasan could have written the
letter.
Since there is no evidence that the signatory and
sender of the second letter is a co-conspirator of
Pagalasan, the latter is not bound by the said letter.
Even if it is assumed for the once that the second
letter came from a co-conspirator, the same is not
binding on Pagalasan, absent evidence aliunde that
he knew of and concurred with the said ransom
demand. It bears stressing that when George
received the second letter on September 6, 1994,
Pagalasan had already been arrested and detained.
The conspiracy forged by Pagalasan and his
cohorts on or before September 4, 1994 had
already ceased, when on the said date,
Pagalasan was arrested by the policemen and
detained.
Neither is the third letter admissible in evidence
against Pagalasan to prove that he conspired with
others to demand the release of Puntuan in
consideration for Christopher's freedom.
Pagalasan and his cohorts could not have planned
to demand ransom for the release of Ronie
Puntuan as early as September 4, 1994, the date of
the kidnapping: Ronie had not yet been arrested on
this date. Pagalasan was arrested first, and Ronie's
detention was only to follow. Furthermore, the
third letter was sent to George on September 9,
1994. At that point, the appellant had already been
arrested by the policemen, and was already in jail.
There is no evidence that while in jail, the appellant
had knowledge of and concurred with the said
ransom demand. It may be reasonably inferred that
Pagalasan’s co-conspirators could have decided to
demand Ronie Puntuan's release as a consideration
for Christopher's liberty, while Pagalasan was
already languishing in jail. The said demand for
ransom was a new and independent project of the
Pagasalan’s co-conspirators, growing out of their
own malice, without any a priori knowledge on the
part of Pagalasan or his post facto concurrence
therewith.
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NOTE: In addition, Pagalasan is only guilty of
slight illegal detention, not kidnapping, of George
[end].
People v. Larrañaga, et al., G.R. No. 138875-75,
3 February 2004
Facts: Appellants Francisco Juan Larrañaga,
Josman Aznar, Rowen Adlawan, Alberto Caño,
Ariel Balansag, Davidson Rusia, and brothers
James Anthony and James Andrew Uy were
charged with kidnapping and serious illegal
detention in the RTC of Cebu City.
According to the state witness Rusia and as
corroborated by other prosecution witnesses, he
met Rowen and Josman and told him to ride with
them in a white car. Following them were
Larrañaga, James Anthony and James Andrew who
were in a red car. Josman stopped the white car in
front of the waiting shed where the sisters Marijoy
and Jacqueline Chiong were standing and forced
them to ride the car. Rusia taped their mouths
while Rowen handcuffed them jointly. After
stopping by a safehouse, the group thereafter
headed to a bus terminal where they met Alberto
Caño and Ariel Balansag, and hired the white van
driven by the former. They traveled towards south
of Cebu City, leaving the red car at the terminal.
Along the way they bought barbecue and Tanduay
Rhum. After parking their vehicles near a precipice,
they drank and had a pot session. Later, Larrañaga,
et al. pulled Jacqueline out of the van and made her
dance as they encircled her, ripping her clothes in
the process. Meanwhile as instructed by Josman,
Larrañaga started to rape Marijoy inside the
vehicle, followed by Rowen, James Anthony,
Alberto and Ariel. Thereafter they raped Jaqueline.
Then, Josman intructed Rowen and Ariel to bring
Marijoy to the cliff and push her into the ravine.
Jacqueline was pulled out of the van and thrown to
the ground. She tried to run towards the road but
was caught by Larrañaga, et al., who brought her
inside the van and beat her until she passed out.
The RTC convicted them of kidnapping and
serious illegal detention.
Issue: Whether there was conspiracy.
Ruling: RTC Decision AFFIRMED WITH
MODIFICATION.
From the evidence of the prosecution, there is no
doubt that Larrañaga, et al. conspired in the
commission of the crimes charged. Their
concerted actions point to their joint purpose and
community of intent. Well settled is the rule that in
conspiracy, direct proof of a previous agreement to
commit a crime is not necessary. xxx it may be
shown by the conduct of the accused before,
during, and after the commission of the crime.
Larrañaga, et al.’s actions showed that they have the
same objective to kidnap and detain the Chiong
sisters. Rowen and Josman grabbed Marijoy and
Jacqueline from the vicinity of Ayala Center.
Larrañaga, James Andrew and James Anthony who
were riding a red car served as back-up of Rowen
and Josman. Together in a convoy, they proceeded
to Fuente Osmeña to hire a van, and thereafter, to
the safehouse of the "Jozman Aznar Group" in
Guadalupe, Cebu where they initially molested
Marijoy and Jacqueline. They headed to the South
Bus Terminal where they hired the white van
driven by Alberto, with Ariel as the conductor.
Except for James Andrew who drove the white car,
Larrañaga, et al. boarded the white van where they
held Marijoy and Jacqueline captive. In the van,
James Anthony taped their mouths and Rowen
handcuffed them together. They drank and had a
pot session at Tanawan. They encircled Jacqueline
and ordered her to dance, pushing her and ripping
her clothes in the process. Meanwhile, Larrañaga
raped Marijoy, followed by Rowen, James
Anthony, Alberto, and Ariel. On other hand,
Josman and James Andrew raped Jacqueline. Upon
Josman's order, Rowen and Ariel led Marijoy to the
cliff and pushed her. After leaving Tan-awan, they
taunted Jacqueline to run for her life. And when
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Rusia got off from the van near Ayala Center,
Larrañaga, et al. jointly headed back to Cebu City.
Clearly, the argument of Rowen, Ariel and
Alberto that they were not part of the
"conspiracy" as they were merely present
during the perpetration of the crimes charged
but not participants therein, is bereft of merit.
To hold an accused guilty as co-principal by
reason of conspiracy, he must be shown to
have performed an overt act in pursuance or
furtherance of the complicity. There must be
intentional participation in the transaction with a
view to the furtherance of the common design and
purpose. Responsibility of a conspirator is not
confined to the accomplishment of a particular
purpose of conspiracy but extends to collateral acts
and offenses incident to and growing out of the
purpose intended. As shown by the evidence for
the prosecution, Rowen, Ariel and Alberto were
not merely present at the scene of the crime.
Indeed, Larrañaga, et al., except James Anthony
who was 16 years old when the crimes charged
were committed, share the same degree of
responsibility for their criminal acts [end].
GR: Conspirators are liable only for the crime
agreed upon. They are not liable for any crime
which is not agreed upon.
Ex. A, B and C decided to kill X. Went to the place
where X will be passing at night time. When they
saw X, A B and C surrounded X and they all
stabbed X. When X was lying on the ground, A and
B left. C remained and took the valuables of X.
What is or are the criminal liabilities of A, B and
C?
A, B and C are all liable for the crime of murder as
conspirators because it is the crime agreed upon.
Only C will be liable for the crime of theft. A and B
cannot be held liable for the crime of theft
because theft was not a crime agreed upon by all
of them. Also, theft was committed in the absence
of A and B. Therefore, only C will be held liable for
theft.
It cannot be robbery because the victim is already
dead. There is no longer force or intimidation to
be used upon person or upon things if the victim
is already dead. The taking from the person is
only theft not robbery.
In the same problem, C took the valuables of X in
the presence of A and B. While he was taking
them, A said what about the cellphone, B what
about the ring, here take it also.
Although theft was not a crime agreed upon, all of
them will be held liable of the crime of theft
because although theft was not agreed upon, it
was committed in the presence of A and B and
they did not perform acts to prevent C from
committing theft.
Ex. A, B and C decided to injure X to teach him a
lesson. When X arrived, they surrounded him,
boxed, punched, hit X. While X was lying on the
ground, seriously wounded, A inflicted a fatal
wound by kicking the neck of X. X died.
Who is liable for the death of X?
All of them are criminally liable for the death of X.
They all agreed to injure X. That was their
agreement. The death of X however was the
natural consequence of their agreement to
injure X. Therefore, even if it is not their intended
act, since it is the natural consequence of the
crime, they are all criminally liable for the death
of X.
Ex. A, B and C decided to rob the house of X. They
went inside the house of X. They have already
taken the valuables. On their way out however, C
pushed a chair. The chair fell on floor and created
a noise. The owner of the house was awakened
and began shouting upon seeing A, B and C. C shot
the owner of the house. The owner died.
What is or are the criminal liabilities of A, B and
C? Who is liable for the death of X? Are all of them
liable for the death of X or is it only C?
The crime agreed upon was robbery. However, by
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reason or on the occasion of robbery, homicide
was committed. Therefore, the resulting felony is
a special complex crime. Under Art. 294 it is
robbery with homicide. Since the resulting felony
is a special complex crime, which cannot be
separated from each other, all of them can be held
criminally liable of the special complex crime of
robbery with homicide.
Thus, base from the examples given, in case of
direct or express conspiracy, the conspirators are
liable only for the crime agreed upon.
XPNS:
1. When the other crime was committed in
the presence of the other conspirators and
they did not perform acts to prevent its
commission.
2. When the other crime committed was the
natural consequence of the crime agreed
upon.
3. When the resulting crime is a composite
crime or a special complex crime or a
single indivisible complex crime.
Under the xpns, the other conspirators are liable
for the crime committed although not agreed
upon.
In case of direct or express conspiracy, for one to
be conspirator, it is not necessary that he actually
participate in the actual execution of the crime.
The participation of the conspirator may be direct
or indirect in the execution of the crime. Since
there was a prior agreement, mere presence at
scene of the crime, mere exercise of moral
ascendancy over the others will already bring
about criminal liability as a conspirator because
there was a prior agreement, there was a pre
conceived plan.
People vs. Carandang, Milan and Chua
All of them were charged of 2 counts of murder
and 1 count of frustrated murder. The only
participation of Milan was to close the door. It
was only Carandang who shot the 3 police
officers. Chua instructed Milan to finish the 3rd
police officer and Milan followed him.
SC: Although the participation of Milan was only
to close the door, Chua was only to order Milan to
shoot the 3rd police officer, such act of Chua
showed that he exercised moral ascendancy over
Milan. Therefore, since what is present here is a
prior agreement to kill the police officers, mere
exercise of moral ascendancy will already make
one a conspirator. It is not necessary that they
actually participate in the execution of the crime.
Thus, all of them are held criminally liable.
People v. Carandang, Milan & Chua, G.R. No.
175926, 6 July 2011
Facts: Three informations for 2 counts of murder
and 1 count of frustrated murder were filed in the
RTC of QC against Carandang, Milan & Chua, for
the killing of PO2 Alonzo, SPO2 Red, and for the
injuries inflicted against SPO1 Montecalvo.
Milan’s sister informed the police of a drug deal
which would take place in their house. The police,
including the victims Alonzo, Red and
Montecalvo, surrounded the house. They met at
the back door near Milan’s room. Seeing the door
of Milan’s room was open, the police tried to
enter. When they announced their identities as
policemen, Milan suddenly shut the door.
Alonzo and Red pushed the door open, causing it
to fall and propelling the two inside the room.
Alonzo shouted “walang gagalaw”. Suddenly,
gunshots rang, hitting Alonzo and Red who fell
one after the other. Montecalvo was still aiming at
the assailants when Carandang shot and hit him,
causing the former to fall. Another policeman
heard Chua instruct Milan: “sugurin mo na”. Milan
lunged at Montecalvo but the latter was able to
shoot and hit Milan. Montecalvo was then pulled
out of the house by another policeman.
The policemen Alonzo and Red were found dead
inside the house. They died due to gunshot
wounds.
Carandang, et al. claimed that they were just playing
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card games at Milan’s house when armed men
suddenly barged in and fired their weapons.
Further, paraffin tests on Chua yielded a negative
result, while Carandang’s tests showed a positive
result. Milan refused to undergo tests as he was
injured at the time.
The RTC ruled that they acted in conspiracy in the
commission of crimes charged, and found them
guilty of 2 counts of murder and 1 count of
frustrated murder. The CA affirmed with
modification the conviction. Hence, Milan and
Chua appealed to the SC.
Issue: Whether conspiracy was not proven due to
lack of direct evidence.
Ruling: Appeal DENIED.
To summarize, Milan's and Chua's arguments
focus on the lack of direct evidence showing that
they conspired with Carandang during the latter's
act of shooting the three victims. However, as we
have held in People v. Sumalpong, conspiracy may also
be proven by other means: xxx Proof of concerted
action before, during and after the crime, which demonstrates
their unity of design and objective, is sufficient.
In the case at bar, the conclusion that Milan and
Chua conspired with Carandang was established by
their acts (1) before Carandang shot the victims
(Milan's closing the door when the police officers
introduced themselves, allowing Carandang to wait
in ambush), and (2) after the shooting (Chua's
directive to Milan to attack SPO1 Montecalvo and
Milan's following such instruction). Contrary to the
suppositions of appellants, these facts are not
meant to prove that Chua is a principal by
inducement, or that Milan's act of attacking SPO1
Montecalvo was what made him a principal by
direct participation. Instead, these facts are
convincing circumstantial evidence of the unity of
purpose in the minds of the three. As
coconspirators, all three are considered principals
by direct participation.
Neither can the rapid turn of events be considered
to negate a finding of conspiracy. Unlike evident
premeditation, there is no requirement for
conspiracy to exist that there be a sufficient period
of time to elapse to afford full opportunity for
meditation and reflection. Instead, conspiracy
arises on the very moment the plotters agree,
expressly or impliedly, to commit the subject
felony.
People vs. Garchitorena
Direct proof is not necessary for one to become a
conspirator because conspiracy can be proven
from the acts done or performed prior, during or
subsequent to the commission of the crime.
People v. Garchitorena, Garcia & Pamplona,
G.R. No. 175605, 28 August 2009
Facts: An information for murder was filed in the
RTC of Binan against Garchitorena, Garcia and
Pamplona for the death of Mauro Biay.
Witness Dulce Biay was selling balut one evening.
Her brother Mauro, also a balut vendor, was
about seven arm’s length away from her when
he was called by accused Jessie Garcia. When
Mauro approached Jessie, the latter twisted the
hand of her brother behind his back and
Jessie’s companions- accused Garchitorena and
Pamplona – began stabbing her brother Mauro
repeatedly with a shiny bladed instrument. Joey
was at the right side of the victim and was
strangling Mauro from behind. Mauro was
struggling to free himself while being stabbed
by the three (3) accused until her brother
slumped face down on the ground. Arnold then
instructed his two co-accused to run away.
Pamplona denied the charge against him, claiming
that he was seated on a bench when Garchitorena
came along and stabbed Mauro. Garcia claimed
that conspiracy was not proven and at the time of
the incident he was on a bus on his way home from
work. Garchitorena claimed insanity, alleging that
he was using drugs and shabu for 2 years prior to
the incident.
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The RTC convicted them of murder, and the CA
affirmed the conviction.
Issue: Whether conspiracy was not proven.
Ruling: Appeal DENIED.
Conspiracy exists when two or more persons
come to an agreement concerning the
commission of a felony and decide to commit
it. Direct proof is not essential, for
conspiracy may be inferred from the acts
of the accused prior to, during or
subsequent to the incident. Such acts must
point to a joint purpose , interest concert of
action or community of interest. Hence, the
victim need not be actually hit by each of the
conspirators for the act of one of them is deemed the
act of all.
In this case, conspiracy was shown because
Garchitorena, et al. were together in performing
the concerted acts in pursuit of their common
objective . Garcia grabbed the victim’s hands
and twisted his arms; in turn, Pamplona,
together with Garchitorena, strangled him and
straddled him on the ground, then stabbed
him. The victim was trying to free himself
from them, but they were too strong. All means
through which the victim could escape were
blocked by them until he fell to the ground
and expired. Garchitorena, et al.s’ prior act of
waiting for the victim outside affirms the
existence of conspiracy, for it speaks of a
common design and purpose.
The aggravating circumstance of superior
strength should be appreciated against
Garchitorena, et al.. In the case at bar, the
victim certainly could not defend himself in
any way. The accused-appellants, armed with a
deadly weapon, immobilized the victim and
stabbed him successively using the same deadly
weapon.
All told, the trial court correctly convicted
Garchitorena, et al. of murder, considering the
qualifying circumstance of abuse of superior
strength [end].
Ex. A, B and C alighted in the house of X, they were
all armed with Armalites. They all went in front of
the door. A knocked at the door. When X opened
the door, B fired at X. X fell on the floor. C kicked
his body inside and closed the door. All of them
left still armed. Are they all criminally liable or
conspirators for the death of X? Are they
conspirators for the crime of murder?
Yes. It is evident here that there is a pre conceived
plan prior to the commission of the crime.
Although the only participation of A was to knock
at the door and the only participation of C was to
close the door, it was obvious, there was a pre
conceived plan. All of the, arrived at the same
time armed with Armalites. They went in front of
the door, one knocked, one fired, one closed the
door, left together still armed. All of these showed
that there was a pre conceived plan to kill X. As
such they are all liable as conspirators regardless
of the quantity and quality of their participation.
2. Implied or Inferred Conspiracy - deduced
from the mode and manner of committing the
crime, there is no pre conceived plan but the
offenders acted simultaneously in a synchronized
and coordinated manner, their acts
complimenting one another towards a common
criminal objective or design. They are all liable as
conspirators.
It may happen that the conspirators do not know
each other. Since the offenders acted in a
synchronized and coordinated manner, a
conspiracy was established instantly,
impulsively, at the spur of the moment.
Ex. X was trying to stab Y. Y evaded all the blows.
Z saw that X was having a hard time stabbing Y. Z
was an enemy of Y. So Z went at the back of Y and
held both hands of Y at the back and told X to stab
Y which X did.
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Is Z a conspirator of X?
Yes. An implied conspiracy was established,
instantly, impulsively, at the spur of the moment.
There was no pre conceived plan but the act of Z
of holding the hands of Y is a direct and positive
overt act showing that he has the same criminal
design as That of X which is to kill Y.
People vs.
In case of implied conspiracy, for one to be
considered as a conspirator, it is necessary that
the offender actually participates in the
commission of the crime. Mere presence at the
scene of the crime, mere approval, mere
acquiescence, mere knowledge of the commission
of the crime will not make one a conspirator
absent any active participation. Because the basis
is on the acts performed by the offender. Unlike a
preconceived plan there was a prior agreement,
therefore mere presence or exercise of moral
ascendancy will make one a conspirator. In
implied the conspiracy is established based on
the acts performed. Therefore, if you do not
perform an act, if you are merely present then you
cannot be held a conspirator.
Ex. X was trying to stab Y. When Z saw that X was
stabbing Y he shouted "sige tirahin mo pa, sa
kaliwa sa kanan..." X kept on stabbing Y.
Is Z a conspirator of X?
No. Absent any active participation, mere
approval, mere acquiescence, mere knowledge of
the commission of the crime will not make one a
conspirator in case of implied or inferred
conspiracy.
When conspiracy is established whether direct or
express, implied or inferred, the act of one is the
act of all. Therefore, all the perpetrators in the
crime will have one and the same penalty. The
same penalty will be imposed regardless of the
quantity and quality of the participation. The
moment conspiracy is established, it is
immaterial to determine who inflicted because all
of them will have the same penalty.
If however, conspiracy is not established, the
penalty will be individual in nature depending on
the act that they performed.
People vs. Bokingco
Bokingco killed Noli Pasion inside the apartment.
At the time that he was killing, Reynante was
inside the main house, he was asking the wife to
open the vault of the pawnshop. After killing the
husband, Bokingco called Reynante and said
"tara na, patay na siya!." They fled at the same
time. They were both charged for the crime of
murder. Convicted both of murder in the CA.
SC: there was no conspiracy between Bokingco
and Reynante in killing Noli. While one is killing
the victim the other was trying to commit another
crime. They did not act in a synchronized and
coordinated manner. There was no evidence that
there was a pre conceived plan because one was
committing another crime different from the
other.
They are one in escaping but not in the
commission of the crime. Since conspiracy was
not established, the most that is established is
that they planned to commit 2 crimes
simultaneously at the same time. But the charge
was only murder, there was no charge for
robbery. Therefore, Bokingco was convicted,
Reynante Col was acquitted of the crime of
murder. So absent any evidence of conspiracy, the
liability is invidual.
People v. Bokingco & Col, G.R. No. 187536, 10
August 2011
Facts: Appellants Michael Bokingco and
Reynante Col were charged with murder before
the RTC of Angeles City for the death of Noli
Payson.
Noli owned a pawnshop which formed a part of
his house. He also maintained 2 rows of apartment
units at the back of his house. His brother in law
Vitalico, Noli’s was leasing one of the apartment
units. Around 1 AM Vitalico heard commotions in
Aparment 3, one of the other units. He peered
inside and saw Bokingco hitting something on the
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floor. Bokingco saw Vitalico and attacked him.
Vitalico was hit but was later able to push
Bokingco away, who was later subdued. Vitalico
returned to his house, where he was informed that
Noli was found dead in Apt. 3.
At the time of the incident Elsa, Noli’s wife, heard
banging sounds and his husband’s moans. She
went downstairs from their room, but before
reaching the kitchen she was attacked by Col, who
then instructed her to open the pawnshop vault.
Elsa told him that she did not have the
combination lock, so Col dragged her towards the
back door. Before they reached the door, Elsa saw
Bokingco open the door and tell Col “tara, patay na
siya”. Col immediately freed her and ran away with
Bokingco.
The RTC convicted Bokingco and Col with
murder. The CA affirmed the conviction, finding
that they are conspirators in the commission of the
crime.
Issue: Whether Col is guilty as a co-conspirator.
Ruling: Appeal GRANTED. Col is
ACQUITTED due to reasonable doubt.
In order to convict Col as a principal by direct
participation in the case before us, it is necessary
that conspiracy between him and Bokingco be
proved. Conspiracy exists when two or more
persons come to an agreement to commit an
unlawful act. It may be inferred from the conduct
of the accused before, during, and after the
commission of the crime. Conspiracy may be
deduced from the mode and manner in which the
offense was perpetrated or inferred from the acts
of the accused evincing a joint or common purpose
and design, concerted action, and community of
interest. Unity of purpose and unity in the
execution of the unlawful objective are
essential to establish the existence of
conspiracy.
As a rule, conspiracy must be established with the
same quantum of proof as the crime itself and must
be shown as clearly as the commission of the
crime.
The finding of conspiracy was premised on Elsa's
testimony that Bokingco and Col fled together
after killing her husband and the extrajudicial
confession of Bokingco.
Nobody witnessed the commencement of the
attack. Col was not seen at the apartment where
Pasion was being attacked by Bokingco. In fact, he
was at Elsa's house and allegedly ordering her to
open the pawnshop vault.
Based on these acts alone, it cannot be logically
inferred that Col conspired with Bokingco in
killing Pasion. At the most, Col's actuations can be
equated to attempted robbery, which was actually
the initial information filed against Bokingco and
Col before it was amended, on motion of the
prosecution, for murder.
Elsa testified that she heard Bokingco call out
to Col that Pasion had been killed and that
they had to leave the place. This does not
prove that they acted in concert towards the
consummation of the crime. It only proves, at
best, that there were two crimes committed
simultaneously and they were united in their
efforts to escape from the crimes they
separately committed.
Their acts did not reveal a unity of purpose that is
to kill Pasion. Bokingco had already killed Pasion
even before he sought Col. Their moves were not
coordinated because while Bokingco was killing
Pasion because of his pent-up anger, Col was
attempting to rob the pawnshop [end].
People v. Castillo & Padayhag, G.R. No.
132895, 10 March 2004
Facts: Appellants Elizabeth Castillo and
Evangeline Padayhag, as well as Wenceslao, were
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charged with kidnapping and serious illegal
detention of a 5-year old boy, Rocky Cebrero.
Castillo was once a househelper at the Cebrero
household, and one of her tasks was to take care of
the Sps. Castillo’s son, Rocky. One day Castillo
called Padayhag, telling her that her boyfriend was
sick. Castillo fetched Padayhag, but they did not
visit Padayhag’s boyfriend. Instead, they went to a
playground. Then, Castillo instructed Padayhag to
fetch Rocky from his house, telling Padayhag that
she missed the boy.
Padayhag fetched Rocky as instructed, and brought
the boy to Castillo. The three eventually went to
the house of Castillo’s sister, Wenceslao.
Afterwards, Padayhag left Wenceslao’s house.
Castillo on the other hand called Rocky’s father
and demanded ransom in exchange for Rocky’s
release.
The RTC of Parañaque convicted Castillo and
Padayhag of kidnapping and serious illegal
detention.
Issue: Whether Castillo and Padayhag conspired
to kidnap Rocky for ransom.
Ruling: RTC decision AFFIRMED WITH
MODIFICATION: Padayhag is
ACQUITTED.
Our review of the evidence on record shows that
the prosecution failed to prove Padayhag’s guilt
beyond reasonable doubt.
Padayhag’s sole involvement in this entire episode
is her act of fetching Rocky and bringing him to
where Castillo was waiting for them. Padayhag
then went strolling with the two, went to the house
of Castillo’s sister together with Castillo and
Rocky, and then later left the house. From this fact
alone, the prosecution would have us rule that
Padayhag acted in conspiracy with Castillo. The
prosecution contends that without Padayhag’s
help, Castillo could not have abducted Rocky.
We are not persuaded. There must be positive and
conclusive evidence that Padayhag acted in concert
with Castillo to commit the same criminal act. To
hold an accused guilty as a coprincipal by
conspiracy, there must be a sufficient and
unbroken chain of events that directly and
definitely links the accused to the commission of
the crime without any space for baseless
suppositions or frenzied theories to filter through.
Indeed, conspiracy must be proven as clearly as the
commission of the crime itself.
Conspiracy is established by the presence of
two factors:
1) singularity of intent; and
2) unity in execution of an unlawful
objective.
The two must concur.
Performance of an act that contributes to the
goal of another is not enough. The act must be
motivated by the same unlawful intent. Neither
joint nor simultaneous action is per se sufficient
indicium of conspiracy, unless proved to have been
motivated by a common design.
Padayhag’s act of fetching Rocky is not conclusive
proof of her complicity with Castillo’s plan, a plan
Padayhag did not even know. Both appellants
testified that Padayhag met Castillo only because
Castillo told Padayhag that Padayhag’s boyfriend
was sick. It was precisely on the pretext that they
were to visit Padayhag’s boyfriend that the two
met. When they met, Padayhag realized that
Castillo had deceived her. xxx Padayhag’s
confusion in the way she answered the questions
propounded to her only highlights the fact that she
was not aware of Castillo’s plans and was
vulnerable to the latter’s manipulation. It is clear
that she acted with the full belief that Castillo was
doing nothing wrong. Whatever moved her to do
what Castillo asked of her is up for speculation.
What matters is that her motivation in fetching
Rocky was not to kidnap the boy. To impose
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criminal liability, the law requires that there be
intentional participation in the criminal act, not the
unwitting cooperation of a deceived individual.
The failure to prove Padayhag’s involvement as a
conspirator reveals how tenuous the evidence is
linking her to the crime. Padayhag’s culpability
hinges on how her act of fetching Rocky and
bringing him to Castillo formed part of a concerted
effort to kidnap the child. The act of fetching the
boy, by itself, does not constitute a criminal
offense. By itself, it is not even sufficient to make
her an accomplice. For a person to be considered
an accomplice there must be a community of
design, that is, knowing the criminal design of the
principal, the co-accused concurs with the latter.
Mere commission of an act which aids the
perpetrator is not enough.
There was therefore a need for clear and
convincing proof that this single act was
committed to kidnap the child. The prosecution
failed to prove this. Padayhag explained that
Castillo coaxed her into fetching Rocky through
another deception and by playing on her feelings
of sympathy and friendship [end].
People v. Feliciano, et al., G.R. No. 196735, 5
May 2014
Facts: Seven members of the Sigma Rho fraternity
were eating lunch in UP Diliman when they were
suddenly attacked by several masked men who
were armed with baseball bats and lead pipes.
Some sustained injuries which required
hospitalization, but one of them-Venturina-died
due to traumatic head injuries.
Informations for murder for Venturina’s death, as
well as the attempted murder and frustrated
murder of some Sigma Rho members were filed in
the RTC of QC against several members of
Scintilla Juris fraternity, namely Feliciano, Alvir,
Soliva, Zingapan (appellants Feliciano, et al.) and
several others.
The RTC convicted Feliciano, et al. of murder and
attempted murder, and acquitted the other co-
accused, holding that Feliciano, et al. were
positively identified by witnesses as the attackers.
The CA affirmed the RTC ruling, but modified
their criminal liabilities.
Issue: Whether Feliciano, et al. are not liable for
attempted murder for some of the victims.
Ruling: Appeal DENIED.
In the decision of the trial court, all of the accused-
appellants were found guilty of the murder of
Venturina and the attempted murder of Natalicio,
Mangrobang, Jr. Lachica, Fortes, and Gaston, Jr.
The appellate court, however, modified their
liabilities and found that the Feliciano, et al.
were guilty of attempted murder only against
Natalicio and Fortes, and not against
Mangrobang, Lachica, and Gaston.
It is the appellate court’s reasoning that because
Lachica and Mangrobang “were no longer chased
by the attackers,” it concluded that Feliciano, et al.
“voluntary desisted from pursuing them and from
inflicting harm to them, which shows that they did
not have the intent to do more than to make them
suffer pain by slightly injuring them.” It also
pointed out that the wound inflicted on Gaston
“was too shallow to have been done with an intent
to kill.” Thus, it concluded that the Feliciano, et al.
would have been guilty only of slight physical
injuries.
This is erroneous.
It should be remembered that the trial court found
that there was conspiracy among Feliciano, et al.
and the appellate court sustained this finding.
Conspiracy, once proven, has the effect of
attaching liability to all of the accused, regardless of
their degree of participation, thus:
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Once an express or implied conspiracy is
proved, all of the conspirators are liable as co-
principals regardless of the extent and
character of their respective active
participation in the commission of the crime
or crimes perpetrated in furtherance of the
conspiracy because in contemplation of law
the act of one is the act of all. xxx it is impossible
to graduate the separate liability of each
conspirator without taking into consideration the
close and inseparable relation of each of them with
the criminal act, for the commission of which they
all acted by common agreement. The crime must
therefore in view of the solidarity of the act and
intent which existed between the accused, be
regarded as the act of the band or party created by
them, and they are all equally responsible.
Verily, the moment it is established that the
malefactors conspired and confederated in the
commission of the felony proved, collective
liability of the accused conspirators attaches
by reason of the conspiracy, and the court shall
not speculate nor even investigate as to the
actual degree of participation of each of the
perpetrators present at the scene of the crime.
The liabilities of the Feliciano, et al. in this case
arose from a single incident wherein the accused-
appellants were armed with baseball bats and lead
pipes, all in agreement to do the highest amount of
damage possible to the victims. Some were able to
run away and take cover, but the others would fall
prey at the hands of their attackers. The intent to
kill was already present at the moment of attack
and that intent was shared by Feliciano, et al. alike
when the presence of conspiracy was proven. It is,
therefore, immaterial to distinguish between the
seriousness of the injuries suffered by the victims
to determine the respective liabilities of their
attackers. What is relevant is only as to whether the
death occurs as a result of that intent to kill and
whether there are qualifying, aggravating or
mitigating circumstances that can be appreciated.
The appellate court, therefore, erred in finding the
accused-appellants guilty only of slight physical
injuries. It would be illogical to presume that
despite the swiftness and suddenness of the attack,
the attackers intended to kill only Venturina,
Natalicio, and Fortes, and only intended to injure
Lachica, Mangrobang, and Gaston. Since the intent
to kill was evident from the moment Feliciano, et
al. took their first swing, all of them were liable for
that intent to kill.
For this reason, the accused-appellants should
be liable for the murder of Venturina and the
attempted murder of Natalicio, Mangrobang,
Jr., Lachica, Fortes, and Gaston, Jr [end].
People v. Dadao, et al., G.R. No. 201860, 22
January 2014
Facts: Appellants Dadao, Sulindao, Eddie
(deceased) and Alfemio Malgosi were charged with
Murder in the RTC of Manolo Fortich, Bukidnon,
for conspiring to kill Pionio Yacapin.
The prosecution alleged that the Malgosis held
firearms while Dadao and Sulindao had bolos, and
they shot to death Yacapin in the latter’s house.
The police found empty Garand shells at the scene
of the crime. On the other hand, Dadao et al.
alleged that paraffin tests yielded negative results
for all four of them. They also alleged that they
were at different places at the time of the shooting.
The RTC found them guilty of murder, prompting
them to appeal. During the pendency of the
appeal, Eddie died. The CA affirmed the RTC
ruling.
Issue: Whether the negative results of the paraffin
test is a ground for acquittal for Dadao, et al.
Ruling: Appeal DENIED.
With regard to Dadao, et al.’s assertion that the
negative result of the paraffin tests that were
conducted on their persons should be considered
as sufficient ground for acquittal, we can only
declare that such a statement is misguided
considering that it has been established in
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jurisprudence that a paraffin test is not conclusive
proof that a person has not fired a gun. It should
also be noted that, according to the
prosecution, only Eddie and Alfemio Malogsi
held firearms which were used in the fatal
shooting of Pionio Yacapin while Marcelino
Dadao and Antonio Sulindao purportedly held
bolos. Thus, it does not come as a surprise that the
latter two tested negative for powder burns
because they were never accused of having fired
any gun. Nevertheless, the evidence on record
has established that all four accused shared a
community of criminal design. By their
concerted action, it is evident that they conspired
with one another to murder Pionio Yacapin and
should each suffer the same criminal liability
attached to the aforementioned criminal act
regardless of who fired the weapon which
delivered the fatal wounds that ended the life of the
victim.
In People v. Nelmida, we elaborated on the principle
of criminal conspiracy and its ramifications in this
manner:
There is conspiracy when two or more persons
come to an agreement concerning the commission
of a felony and then decide to commit it. It arises
on the very instant the plotters agree, expressly or
impliedly, to commit the felony and forthwith
decide to pursue it. Once established, each and
every one of the conspirators is made
criminally liable for the crime actually
committed by any one of them. In the absence
of any direct proof, the agreement to commit a
crime may be deduced from the mode and manner
of the commission of the offense or inferred from
acts that point to a joint purpose and design,
concerted action, and community of interest. As
such, it does not matter who inflicted the
mortal wound, as each of the actors incurs the
same criminal liability, because the act of one
is the act of all (Citation and emphasis
omitted.)[end].
People v. Octa, G.R. No. 195196, 13 July 2015
Facts: An information was filed in the RTC of
Manila, charging Estanly Octa of kidnaping for
ransom.
Johnny Corpus and Mike Adrian Batuigas were
kidnapped in Sampaloc, Manila. The kidnappers
demanded ransom money from Johnny’s wife and
Mike Adrian’s sister, Ana Marie Corpuz initially
for P 20 Million, but was reduced to P 538,000.
Five days after Johnny and Mike were kidnapped,
the kidnappers set up how the ransom money
would be delivered. Ana Marie was instructed to
go to the drop-off point where she would see a
man wearing a red cap, to which she would deliver
the money. Ana Marie saw the man, who asked for
the money. After contacting the kidnappers, Ana
Marie gave the money. A day later, Johnny and
Mike Adrian were released.
A month later, the police arrested Octa in
connection with another kidnap for ransom
incident. Ana Marie identified Octa from the
police line-up as the man who received the ransom
money from her. Consequently, this case was filed
against Octa.
Octa denied the kidnapping, claiming that at the
time of the kidnapping he was in Camarines Norte.
Moreover, he himself was kidnapped and brought
to Camp Crame, and tortured to admit the charges
filed against him.
The RTC found him guilty as charged, giving
credence to Ana Marie’s positive identification of
him as the man who received the ransom money,
and his the act of receiving ransom money was
sufficient evidence to establish Octa’s
conspiratorial act in the kidnapping for ransom of
the victims. The CA affirmed the RTC.
Issue: Whether the RTC erred in finding Octa a
conspirator of the crime charged.
Ruling: Appeal DENIED.
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Octa also claims that he cannot be considered as a
conspirator to the kidnapping in the absence of
concrete proof that he actually participated in the
execution of the essential elements of the crime by
overt acts indispensable to its accomplishment. His
receipt of the ransom money transpired only after
the kidnapping had been consummated and was
not an essential element of the crime.
We disagree.
On point is our dissertation in People v. Bautista, to
wit: “Conspiracy exists when two or more persons
come to an agreement concerning the commission
of a felony and decide to commit it. Where all the
accused acted in concert at the time of the
commission of the offense, and it is shown by such
acts that they had the same purpose or common
design and were united in its execution, conspiracy
is sufficiently established. It must be shown that all
participants performed specific acts with such
closeness and coordination as to indicate a
common purpose or design to commit the felony.
Evidently, to hold an accused guilty as a co-
principal by reason of conspiracy, he must be
shown to have performed an overt act in
pursuance or furtherance of the complicity.
There must be intentional participation in the
transaction with a view to the furtherance of the
common design and purpose.
Taking these facts in conjunction with the
testimony of Dexter, who testified that accused-
appellant was the one who received the ransom
money x x x then the commonality of purpose of
the acts of accused-appellant together with the
other accused can no longer be denied. Such acts
have the common design or purpose to commit the
felony of kidnapping for ransom.
Thus, accused-appellants’ argument that he is a
mere accomplice must fail. He is liable as a
principal for being a co-conspirator in the crime of
Kidnapping for Ransom.”
Moreover, the CA is correct in its observation that
at the time Octa received the ransom money, the
crime of kidnapping was still continuing, since
both victims were still being illegally detained by
the kidnappers. While his receipt of the ransom
money was not a material element of the
crime, it was nevertheless part of the grand
plan and was in fact the main reason for
kidnapping the victims. Ransom is money, price
or consideration paid or demanded for the
redemption of a captured person or persons; or
payment that releases from captivity. Without
ransom money, the freedom of the detained
victims cannot be achieved [end].
Conspiracy of Silence and Inaction
Jaca v. People & the Sandiganbayan, G.R.
Nos. 166967, 166974 & 167167, 28 January 2013
Facts: Petitioners are officials of the Cebu City
Government: Gaviola was the City Administrator;
Cesa was the City Treasurer; Bacasmas was the
Chief Cashier of the Cash Division, which is under
the Office of the City Treasurer, and Jaca was the
City Accountant.
A surprise audit by the City Auditor revealed that
one of the disbursing officers, Badana, incurred a
cash shortage of P18,527,137.19. The audit team
found that the failure of Jaca, et al. to observe the
provisions of PD 1445 and RA 7160 and the rules
and regulations governing the grant, utilization and
liquidation of cash advances under COA circulars
facilitated, promoted if not encouraged the
commission of malversation of public funds.
The Ombudsman charged before the
Sandiganbayan Jaca, et al. and Bascamas with
violation of Sec. 3(e), RA 3019. The Sandiganbayan
found them guilty as charged.
In their petition to the SC, Jaca, et al. invoked good
faith in affixing their signatures in to the
disbursement vouchers despite the lack of
supporting documents and the purpose of the
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disbursement. Moreover, they argue that the
information is fatally defective as “evident bad
faith” and “gross inexcusable negligence” are
several modes of committing the crime, more so
considering the allegation of conspiracy, which
presupposes intent and absence of negligence.
Thus the complaint effectively charged no offense.
Issue: Whether gross and inexcusable negligence
negates conspiracy.
Ruling: Petitions DENIED.
In Sistoza v. Desierto, the Court already intimated on
the possibility of committing a violation of Section
3(e) of RA No. 3019 through gross and inexcusable
negligence, and of incurring collective criminal
responsibility through a conspiracy: “As we have
consistently held, evidence of guilt must be
premised upon a more knowing, personal and
deliberate participation of each individual who is
charged with others as part of a conspiracy.
Furthermore, even if the conspiracy were one of
silence and inaction arising from gross inexcusable
negligence, it is nonetheless essential to prove that
the breach of duty borders on malice and is
characterized by flagrant, palpable and willful
indifference to consequences insofar as other
persons may be affected.”
As earlier discussed, considering that the gravity of
negligence required by law for a violation of
Section 3(e) of RA No. 3019 to exist falls short of
the degree of bad faith or partiality to violate the
same provision, a conspiracy of silence and
inaction arising from gross inexcusable
negligence would almost always be inferred
only from the surrounding circumstances and
the parties' acts or omissions that, taken
together, indicate a common understanding
and concurrence of sentiments respecting the
commission of the offense. The duties and
responsibilities that the occupancy of a public
office carry and the degree of relationship of
interdependence of the different offices
involved here determine the existence of
conspiracy where gross inexcusable
negligence was the mode or commission of the
offense.
For emphasis, Jaca, et al. are all heads or their
respective offices that perform interdependent
functions in the processing of cash advances. The
petitioners' attitude of buck-passing in the face of
the irregularities in the voucher (and the absence of
supporting documents), as established by the
prosecution, and their indifference to their
individual and collective duties to ensure that laws
and regulations are observed in the disbursement
of the funds of the local government of Cebu can
only lead to a finding of conspiracy of silence and
inaction, contemplated in Sistoza. The
Sandiganbayan correctly observed that the
separate acts or omissions of all the accused in
the present case contributed in the end result
of defrauding the government. Without
anyone of these acts or omissions, the end
result would not have been achieved. Suffice it
to say that since each of the accused contributed to
attain the end goal, it can be concluded that their
acts, taken collectively, satisfactorily prove the
existence of conspiracy among them [end].
TWO KINDS OF MULTIPLE CONSPIRACY
(Fernan, Jr. & Torrevillas v. People)
1. Wheel or Circle Conspiracy - when a single
person or group of persons known as a hub,
deals individually with another person or
group of persons known as the spokes.
2. Chain Conspiracy - usually involving the
distribution of narcotics or other contraband,
in which there is successive communication
and cooperation in much the same way as
with legitimate business operations between
manufacturer and wholesaler, then
wholesaler and retailer, and then retailer and
consumer.
Fernan vs. People [P86 Million Highway Scam]
SC said what is present is a wheel or circle
conspiracy. 4 persons headed by the chief
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accountant acted as the hub. They enticed all
other 36 employees of the DPWH to be one with
them in committing fraud against the
government. They falsified LAA's and would
negotiate it at a certain percentage, then one of
them would compute the general voucher, funds
then will be issued as if materials will be
delivered for the construction. Fernan and
Torevillas were civil engineers of the DPWH, they
signed tally sheets, saying that there were
deliveries when in fact these were ghost
deliveries. No actual deliveries of the materials.
Conspiracy also applies in case of violations of
special penal laws.
There are some special penal laws which expressly
provide that perpetrators can be held liable when
they acted in conspiracy.
Section 26 of RA 9165
Section 26. Attempt or Conspiracy. – Any attempt or
conspiracy to commit the following unlawful acts shall
be penalized by the same penalty prescribed for the
commission of the same as provided under this Act:
(a) Importation of any dangerous drug and/or
controlled precursor and essential chemical;
(b) Sale, trading, administration, dispensation,
delivery, distribution and transportation of any
dangerous drug and/or controlled precursor and
essential chemical;
(c) Maintenance of a den, dive or resort where any
dangerous drug is used in any form;
(d) Manufacture of any dangerous drug and/or
controlled precursor and essential chemical; and
(e) Cultivation or culture of plants which are sources of
dangerous drugs. (R.A. 9165)
As held in the case of People vs Morilla, it is the
law itself that provides that there is mere
conspiracy in the act of transporting dangerous
drugs. Among the acts specified in RA 9165
wherein conspiracy would lie is in case of
transportation of dangerous drugs.
People v. Morilla, G.R. No. 189833, 5 February
2014
Facts: Javier Morilla, Willie Yang, Ruel Dequilla
and Mayor of Mun. of Panulikan, Quezon Ronnie
Mitra, were charged with the crime of
transportation of illegal drugs in the RTC of QC.
A Starex van driven by Mayor Mitra and an
ambulance driven by Morilla were travelling
together when they were intercepted at a
checkpoint in Real, Quezon. The police
discovered that they were carrying sacs of shabu,
weighing a total of 503 kgs.
Mitra and Morilla claimed that they did not know
that the contents of the sacks were shabu. Mitra was
merely requested to carry the sacs, while Morilla
thought the contents were wooden tiles and
electronic spare parts.
The RTC convicted Morilla and Mitra, dismissing
the two’s defenses. The RTC’s ruling of conviction
was based on the testimony of the accused. The
Starex was able to pass by the checkpoint but the
ambulance was stopped. Morilla clamed he was
with Mayor Mitra in an attempt to persuade the
police to let him pass. When the latter discovered
shabu, they chased Mayor Mitra, who got caught.
The police also discovered shabu inside the Starex.
Yang and Dequila were acquitted, as their mere
presence as passengers were inadequate to prove
that they were also conspirators of Mitra and
Morilla.
The CA upheld the RTC’s finding of conspiracy,
holding that there was singularity of intent to
transport sacs of shabu when Morilla agreed to
drive the ambulance together with Mitra who
drove the lead vehicle.
Issue: Whether conspiracy to transport shabu was
proven.
Ruling:
Morilla argues that the mere act of driving the
ambulance on the date he was apprehended is not
sufficient to prove that he was part of a syndicated
group involved in the illegal transportation of
dangerous drugs.
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This argument is misplaced.
In conspiracy, it need not be shown that the parties
actually came together and agreed in express terms
to enter into and pursue a common design. The
assent of the minds may be and, from the secrecy
of the crime, usually inferred from proof of facts
and circumstances which, taken together, indicate
that they are parts of some complete whole. In this
case, the totality of the factual circumstances
leads to a conclusion that Morilla conspired
with Mayor Mitra in a common desire to
transport the dangerous drugs. Both vehicles
loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra
was able to drive through the checkpoint set up by
the police operatives. When it was Morilla’s turn to
pass through the checkpoint, he was requested to
open the rear door for a routinary check. Noticing
white granules scattered on the floor, the police
officers requested Morilla to open the sacks. If
indeed he was not involved in conspiracy with
Mayor Mitra, he would not have told the police
officers that he was with the mayor.
His insistence that he was without any knowledge
of the contents of the sacks and he just obeyed the
instruction of his immediate superior Mayor Mitra
in driving the said vehicle likewise bears no merit.
Here, Morilla and Mayor Mitra were caught in
flagrante delicto in the act of transporting the
dangerous drugs on board their vehicles.
“Transport” as used under the Dangerous Drugs
Act means “to carry or convey from one place to
another.” It was well established during trial that
Morilla was driving the ambulance following the
lead of Mayor Mitra, who was driving a Starex van
going to Manila. The very act of transporting
methamphetamine hydrochloride is malum
prohibitum since it is punished as an offense
under a special law. The fact of transportation of
the sacks containing dangerous drugs need not be
accompanied by proof of criminal intent, motive
or knowledge [end].
Go-Tan v. Sps. Tan, G.R. No. 168852, 30
September 2008
The principle of conspiracy may be applied to
RA 9262
Facts: Petitioner Sharica Go-Tan filed in the RTC
of QC a petition with prayer for the issuance of a
Temporary Protection Order (TPO) against her
spouse Steven and her parents-in-law, respondents
spouses Perfecto and Juanita Tan. Go-Tan alleged
that Steven in conspiracy with his parents
conspired to cause verbal, psychological and
economic abuses against her, in violation of Sec. 5,
RA 9262. The RTC granted the prayer and issued
the TPO.
The Sps. Tan opposed the issuance, contending
that the RTC lacked jurisdiction over them on the
grounds that, as parents in law, they were not
covered by RA 9262. The RTC agreed and
dismissed the case against the Sps. Tan.
Issue: Whether the principle of conspiracy may be
applied to violations of RA 9262.
Ruling: Petition GRANTED.
While [Sec. 3 of RA 9262 which defines violence
against women and children] provides that the
offender be related or connected to the victim by
marriage, former marriage, or a sexual or dating
relationship, it does not preclude the application of
the principle of conspiracy under the RPC.
Indeed, Section 47 of R.A. No. 9262 expressly
provides for the suppletory application of the RPC.
Hence, legal principles developed from the Penal
Code may be applied in a supplementary capacity
to crimes punished under special laws, such as R.A.
No. 9262, in which the special law is silent on a
particular matter.
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Parenthetically, Article 10 of the RPC provides that
the RPC shall be supplementary to special penal
laws, unless the latter should specially provide the
contrary. With more reason, therefore, the
principle of conspiracy under Article 8 of the RPC
may be applied suppletorily to R.A. No. 9262
because of the express provision of Section 47 that
the RPC shall be supplementary to said law.
Thus, general provisions of the RPC, which by
their nature, are necessarily applicable, may be
applied suppletorily.
Thus, the principle of conspiracy may be applied
to R.A. No. 9262. For once conspiracy or action in
concert to achieve a criminal design is shown, the
act of one is the act of all the conspirators, and the
precise extent or modality of participation of each
of them becomes secondary, since all the
conspirators are principals.
It must be further noted that Section 5 of R.A. No.
9262 expressly recognizes that the acts of violence
against women and their children may be
committed by an offender through another. Xxx
In addition, the protection order that may be issued
for the purpose of preventing further acts of
violence against the woman or her child may
include individuals other than the offending
husband [end].
Art. 9. Grave felonies, less grave felonies and light
felonies. — Grave felonies are those to which the
law attaches the capital punishment or penalties
which in any of their periods are afflictive, in
accordance with Art. 25 of this Code.
Less grave felonies are those which the law
punishes with penalties which in their maximum
period are correctional, in accordance with the
above-mentioned Art..
Light felonies are those infractions of law
for the commission of which a penalty of arrest
menor or a fine not exceeding 200 pesos or both;
is provided.
3 kinds of felonies according to severity
1. Grave felonies
2. Less grave felonies
3. Light felonies
Art. 10. Offenses not subject to the provisions of
this Code. — Offenses which are or in the future
may be punishable under special laws are not
subject to the provisions of this Code. This Code
shall be supplementary to such laws, unless the
latter should specially provide the contrary.
Ex. What if a person convicted of a violation of a
SPL? A issued a check to B for payment of an
obligation. B deposited but the check bounced.
Notice of dishonor was sent. After the trial on the
merits, A was found guilty of the violation of BP
22 beyond reasonable doubt. Fine and payment of
the value of the check. The court said in case of
non-payment of the fine, the said convict shall
suffer subsidiary imprisonment.
Is the Judge correct? Can a person who violated a
SPL and was imposed with fine be made to suffer
subsidiary imprisonment in case of non-payment
of fine?
Subsidiary imprisonment is under Art. 39 of the
RPC. Can you apply the RPC to violations of SPL?
Yes because of Art. 10. As a rule, the RPC shall
apply suppletorily or supplementarily to the
provisions of SPL unless the SPL provides
otherwise.
Example of "unless"
Sec. 98 of RA 9165. It is expressly provided that
the provisions of the RPC shall not apply to the
violations RA 9165 or the 2002 Comprehensive
Dangerous Drugs Act. The law uses the word
shall.
XPN: If the offender is a minor. In that case if the
minor is penalized with life imprisonment to
death, it will be considered as reclusion perpetua
to death and the nomenclature of the penalties in
the RPC will now be applied.
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CIRCUMSTANCES WHICH AFFECT THE
LIABILITY OF THE OFFENDER
1. Justifying circumstances
2. Exempting circumstances
3. Mitigating Circumstances
4. Aggravating Circumstances
Art. 11. Justifying circumstances. — The
following do not incur any criminal liability:
1. Anyone who acts in defense of his person or
rights, provided that the following
circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means
employed to prevent or repel it.
Third. Lack of sufficient provocation on the
part of the person defending himself.
2. Anyone who acts in defense of the person or
rights of his spouse, ascendants, descendants,
or legitimate, natural or adopted brothers or
sisters, or his relatives by affinity in the same
degrees and those consanguinity within the
fourth civil degree, provided that the first and
second requisites prescribed in the next
preceding circumstance are present, and the
further requisite, in case the revocation was
given by the person attacked, that the one
making defense had no part therein.
3. Anyone who acts in defense of the person or
rights of a stranger, provided that the first
and second requisites mentioned in the first
circumstance of this Art. are present and that
the person defending be not induced by
revenge, resentment, or other evil motive.
4. Any person who, in order to avoid an evil or
injury, does not act which causes damage to
another, provided that the following
requisites are present;
First. That the evil sought to be avoided
actually exists;
Second. That the injury feared be greater than
that done to avoid it;
Third. That there be no other practical and
less harmful means of preventing it.
5. Any person who acts in the fulfillment of a
duty or in the lawful exercise of a right or
office.
6. Any person who acts in obedience to an order
issued by a superior for some lawful purpose.
JUSTIFYING CIRCUMSTANCES
Infractions wherein the offender is said to have
acted within the bounds of law. He has not yet
transgressed the law. Therefore there is no crime
committed, there is no criminal, there is no
criminal liability, there is no civil liability.
The moment the offender or the accused invokes
any of the acts amounting to justifying
circumstance, he is in effect admitting the
commission of the crime. But he wanted to evade
criminal liability by invoking justifying
circumstances. Therefore in justifying
circumstance it is both an admission to the
commission of the crime and an avoidance of
criminal liability.
Ex.
A killed B. A case of homicide was filed against A.
A pleaded not guilty during the arraignment.
During the pre-trial, the counsel of A invoked self-
defense. The moment the counsel said that their
defense is self-defense, a kind of justifying
circumstance, the procedure in trial would be
inverted.
As a rule it is the prosecution that must first
present evidence, it is only after the prosecution
has presented evidence that the defense would
present evidence.
If however the defense invoke[s] any of the
justifying circumstances, the trial will be
inverted. It is the defense that must first present
evidence. Because he in effect admits the
commission of the crime. He only wanted to avoid
liability by saying that his act was justif[ied].
Therefore the burden of evidence is upon the
defense to prove all the elements, all the
requisites of the justifying circumstance that he is
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invoking.
If the defense failed to prove the evidence or
requisites of justifying circumstance that he is
invoking, that will amount to conviction because
he already admitted to the commission of the
crime.
1. Self-defense [SD]
Legal Maxim on self-defense: "Stand ground
when in right."
He is not required by law to retreat when the
assailant is close approaching, otherwise, he would
run the risk of being stabbed or shot at the back.
SD does not only include defense of one's life. It
also includes defense of one's honor or chastity,
defense of one's property coupled with an attack
on the person entrusted with the said property. It
is an encompassing term.
Elements of SD:
1.Unlawful Aggression - must come from the
victim. The person attacked by the person
defending himself.
Aggression is said to be unlawful or present if
the attack is material, actual and places the life
of the accused in imminent and immediate
danger. It must not only be a threat. It must be
present, about to happen.
Elements of unlawful aggression (People v.
Fontanilla): (note put in box)
(a) There must be a physical or material attack
or assault;
(b) The attack or assault must be actual or at
least imminent.
(c) the attack or assault must be unlawful.
The Supreme Court also said that there are two
kinds of unlawful aggression.
(a) Actual or Material unlawful aggression- the
attack is by use of physical force or with the use
of a weapon;
(b) Imminent unlawful aggression- the attack is
impending, at the point of happening.
People v. Fontanilla, G.R. No. 177749, 25
January 2012
Facts: An information was filed before the RTC
of La Union, charging the accused-appellant
Alfonso Fontanilla of murder. The prosecution
alleged that one evening the victim Jose Olais was
walking along the road when suddenly Fontanilla
struck him in the head with a piece of wood. Olais
fell face down to the ground, but Fontanilla hit him
again in the head with a piece of stone. The latter
stopped only when the sons-in-law of Olais
shouted at him, causing Fontanilla to run away.
Olais was rushed to the hospital but was declared
dead on arrival.
On the other hand, Fontanilla declared self-
defense. He said that on the night of the incident
Fontanilla was standing on the road near his house
when Olais, who appeared to be drunk, boxed him
in the stomach. Despite talking to Olais nicely, the
latter continued attacking Fontanilla; thus
Fontanilla was forced to hit Olais in the head with
a stone.
The RTC rejected Fontanilla’s claim of self-
defense and declared him guilty as charged. The
CA affirmed the conviction, as he was unable to
establish unlawful aggression.
Issue: Whether the RTC and CA erred in ignoring
Fontanilla’s claim of self-defense.
Ruling: CA Decision AFFIRMED.
Fontanilla pleaded self-defense. In order for self-
defense to be appreciated, he had to prove by clear
and convincing evidence the following elements:
(a) unlawful aggression on the part of the victim;
(b) reasonable necessity of the means employed to
prevent or repel it; and (c) lack of sufficient
provocation on the part of the person defending
himself. Unlawful aggression is the indispensable
element of self-defense, for if no unlawful
aggression attributed to the victim is established,
self-defense is unavailing, for there is nothing to
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repel. The character of the element of unlawful
aggression is aptly explained as follows:
Unlawful aggression on the part of the victim is the
primordial element of the justifying circumstance
of self-defense. Without unlawful aggression, there
can be no justified killing in defense of oneself. The
test for the presence of unlawful aggression under
the circumstances is whether the aggression from
the victim put in real peril the life or personal safety
of the person defending himself; the peril must not
be an imagined or imaginary threat. Accordingly,
the accused must establish the concurrence of
three elements of unlawful aggression, namely:
(a) there must be a physical or material attack
or assault;
(b) the attack or assault must be actual, or, at
least, imminent; and
(c) the attack or assault must be unlawful.
Unlawful aggression is of two kinds:
(a) actual or material unlawful aggression; and
(b) imminent unlawful aggression.
Actual or material unlawful aggression means
an attack with physical force or with a weapon,
an offensive act that positively determines the
intent of the aggressor to cause the injury.
Imminent unlawful aggression means an
attack that is impending or at the point of
happening; it must not consist in a mere
threatening attitude, nor must it be merely
imaginary, but must be offensive and
positively strong (like aiming a revolver at
another with intent to shoot or opening a knife
and making a motion as if to attack).
Imminent unlawful aggression must not be a
mere threatening attitude of the victim, such
as pressing his right hand to his hip where a
revolver was holstered, accompanied by an
angry countenance, or like aiming to throw a
pot.
By invoking self-defense, however, Fontanilla
admitted inflicting the fatal injuries that caused the
death of Olais. It is basic that once an accused in a
prosecution for murder or homicide admitted his
infliction of the fatal injuries on the deceased, he
assumed the burden to prove by clear, satisfactory
and convincing evidence the justifying
circumstance that would avoid his criminal liability.
Having thus admitted being the author of the death
of the victim, Fontanilla came to bear the burden
of proving the justifying circumstance to the
satisfaction of the court, and he would be held
criminally liable unless he established self-defense
by sufficient and satisfactory proof. xxx
Fontanilla did not discharge his burden. A review
of the records reveals that, one, Olais did not
commit unlawful aggression against Fontanilla,
and, two, Fontanilla's act of hitting the victim's head
with a stone, causing the mortal injury, was not
proportional to, and constituted an unreasonable
response to the victim's fistic attack and kicks.
Indeed, had Olais really attacked Fontanilla, the
latter would have sustained some injury from the
aggression. It remains, however, that no injury of
any kind or gravity was found on the person of
Fontanilla when he presented himself to the
hospital; hence, the attending physician of the
hospital did not issue any medical certificate to
him. Nor was any medication applied to him. In
contrast, the physician who examined the cadaver
of Olais testified that Olais had been hit on the
head more than once. The plea of self-defense was
thus belied, for the weapons used by Fontanilla
and the location and number of wounds he
inflicted on Olais revealed his intent to kill, not
merely an effort to prevent or repel an attack from
Olais. The Court considers to be significant that
the gravity of the wounds manifested the
determined effort of the accused to kill his victim,
not just to defend himself.[end]
Ex. A saw his enemy B. B was fast approaching to
A with a gun on his hand. Upon seeing that B was
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about 10 feet away, A immediately pulled out his
balisong and he spin B who was hit on the neck
and died.
There was no unlawful aggression. The mere act
of holding a gun will not constitute imminent and
immediate danger on the life of the person unless
the said gun is aimed at the said person. Same
with bolo or any weapon. If it is just being held by
a person, it will not yet produce any imminent or
immediate danger.
SC: For a bolo to produce imminent and
immediate danger, it must be held in a hacking
position. Only then that it will produce unlawful
aggression.
In the example, B was only walking with a gun on
his hand and it was not yet pointed or aimed to
the offender. Therefore, there was no unlawful
aggression.
If there is no unlawful aggression, that means that
2 is not present. Although 3 would be present
because there was sufficient provocation on the
part of the B.
Therefore, A should be convicted of homicide.
Self-defense would not lie in his favor.
People v. Ramon Regalario, et al., G.R. No.
174483, 31 March 2009
The moment the inceptive unlawful aggression
cease[s] to exist, the person defending himself
must not kill or wound the aggressor.
Retaliation is not a justifying circumstance.
The offended party or the victim, Rolando shot
allegedly the barangay official Ramon. Ramon hit
the back of the head of Roland with a night stick
and continued hitting him so he would not gain
balance. When the accused hit the victim whatever
inceptive unlawful aggression has been started by
the victim, it has already ceased to exist. Therefore,
the accused has no more right to wound or kill the
victim.
Facts: Accused-appellants Ramon, Marciano,
Sotero, Bienvenido and Noel Regalario-relatives by
affinity and barangay officials of Natasan, Albay-
were originally charged before the RTC of Ligao,
Albay with homicide for the death of Rolando
Sevilla. The DOJ, however, filed an amended
information charging them with murder.
The prosecution alleged that one night during a
dance and singing contest in the barangay, Rolando
and Poblete were enjoying the festivities when
kagawad Sotero approached them. Despite
Rolando and Poblete’s efforts to avoid trouble, a
commotion ensued. Eventually, it came to a point
where the Regalarios beat Rolando with their night
sticks until he slumped to the ground face down.
The barangay captain Marciano ordered the others
to kill Rolando and to tie him up. Rolando died due
to severe blood loss due to a stab wound and
multiple lacerated wounds.
The defense depicted a different story. Ramon
tried to investigate a commotion during the
festivities Rolando suddenly fired a shot at him,
hitting his left shoulder. Instinctively, Ramon
struck at Rolando with his night stick at the
back of his head. The blow caused Rolando to
reel backward. To prevent him from regaining
balance, Ramon continued to strike Rolando.
The latter lost his footing and fell down. At this
juncture Sotero arrived and tried to stop Ramon
from hitting Rolando, but lunged at Rolando upon
knowing that he still had the gun. Later, the other
Regalarios arrived. They were able to knock the
gun out of Rolando’s hand. Bienvenido arrived
after the fact and arrested Ronaldo. In lieu of
handcuffs, he just tied the hands and feet of
Rolando.
The RTC ruled out Ramon’s claim of self-defense
and held that there was conspiracy and abuse of
superior strength in the killing of Rolando. All the
Regalarios were convicted of murder. The CA
affirmed the RTC.
Issue: Whether Ramon acted in self-defense when
allegedly struck at Rolando despite the latter’s
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retreat.
Ruling: Appeal DENIED.
We begin our evaluation with accused-appellant
Ramon Regalario's claim of self-defense. Both the
CA and the trial court gave no credence to this
theory of self-defense.
When self-defense is invoked by an accused
charged with murder or homicide he necessarily
owns up to the killing but may escape criminal
liability by proving that it was justified and that he
incurred no criminal liability therefor. Hence, the
three (3) elements of self-defense, namely: (a)
unlawful aggression on the part of the victim; (b)
reasonable necessity of the means employed to
prevent or repel the aggression; and (c) lack of
sufficient provocation on the part of the person
defending himself, must be proved by clear and
convincing evidence. However, without unlawful
aggression, there can be no self-defense, either
complete or incomplete.
Ramon contends that the victim Rolando Sevilla
committed an act of unlawful aggression with no
provocation on his [Ramon's] part. Ramon
testified that he was trying to investigate a
commotion when, without warning, Rolando
emerged from the group, thrust and fired his gun
at him, hitting him in the left shoulder. To disable
Rolando from firing more shots, Ramon struck the
victim's head at the back with his nightstick,
causing the victim to reel backward and lean on the
bamboo fence. He continued hitting Rolando to
prevent the latter from regaining his balance and,
as he pressed on farther, the victim retreated
backward.
By Ramon's own account, after he was shot, he hit
the victim at the back of the latter's head and he
continued hitting the victim who retreated
backward. From that moment, the inceptive
unlawful aggression on the part of the victim
ceased to exist and the continuation of the
offensive stance of Ramon put him in the place of
an aggressor. There was clearly no longer any
danger, but still Ramon went beyond the call of
self-preservation.
In People v. Cajurao, we held that the settled rule in
jurisprudence is that when unlawful aggression
ceases, the defender no longer has the right to
kill or even wound the former aggressor.
Retaliation is not a justifying circumstance. Upon
the cessation of the unlawful aggression and the
danger or risk to life and limb, the necessity for the
person invoking self-defense to attack his
adversary ceases. If he persists in attacking his
adversary, he can no longer invoke the justifying
circumstance of self-defense. Self-defense does
not justify the unnecessary killing of an
aggressor who is retreating from the fray.
Ramon's claim of self-defense is further belied by
the presence of two (2) stab wounds on the neck,
four (4) lacerated wounds on the head, as well as
multiple abrasions and contusions on different
parts of the victim's body, as shown in the Medico-
Legal Report. xxx Indeed, even if it were true that
the victim fired a gun at Ramon, the number,
nature and severity of the injuries suffered by the
victim indicated that the force used against him by
Ramon and his co-accused was not only to disarm
the victim or prevent him from doing harm to
others.[end].
People v. Sevillano, G.R. No. 200800, 9
February 2015 [see also: Dela Cruz v. People]
Facts: The victim Pablo Maddauin was seated on
a long bench and chatted with Palavorin and
Cardona when they saw accused-appellant
Sevillano, approach them. Sevillano appeared to
be drunk. Without warning, Sevillano stabbed
Pablo in the chest several times. Pablo was
brought to the hospital but died on the same day.
Sevillano claimed self-defense, averring that when
he went to the vacant lot where Pablo and his
friends were staying, Pablo tried to stab him but
missed his target. Sevillano and Pablo grappled for
the knife, but Pablo was accidentally stabbed.
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The RTC Manila found Sevillano guilty of murder,
and the CA affirmed RTC.
Issue: Whether Sevillano acted in self-defense.
Ruling: Appeal DENIED.
By invoking self-defense, Sevillano in effect,
admits to having inflicted the stab wounds which
killed the victim. The burden was, therefore,
shifted on him to prove that the killing was done
in self-defense.
Sevillano’s version that it was the victim who was
armed with a knife and threatened to stab him was
found by the lower court to be untenable. We agree
with the lower court’s conclusion. Assuming
arguendo that there was indeed unlawful aggression
on the part of the victim, the imminence of that
danger had already ceased the moment
Sevillano was able to wrestle the knife from
him. Thus, there was no longer any unlawful
aggression to speak of that would justify the
need for him to kill the victim or the former
aggressor. This Court has ruled that if an accused
still persists in attacking his adversary, he can no
longer invoke the justifying circumstance of self-
defense. The fact that the victim suffered many
stab wounds in the body that caused his demise,
and the nature and location of the wound also
belies and negates the claim of self-defense. It
demonstrates a criminal mind resolved to end the
life of the victim. [end]
People v. Dulin, G.R. No. 171284, 29 June 2015
Facts: One night, accused-appellant Alfredo
Dulin, with Jun Danao, was accompanying
Nicanor and Raymund to the highway to get a
tricycle ride, when he was attacked by the cousin of
his mother, Francisco Batulan. Batulan stabbed
Dulin on the right side of his body and on the left
side. Dulin and Batulan grappled for the weapon
until Dulin was able to wrest it from Batulan. Dulin
ran towards the second level of Francisco and
Carolina Danao’s house. Batulan pursued Dulin,
and while inside, both of them grappled for control
of the weapon again. Dulin, who was now in
control of the weapon, stabbed Batulan several
times. The latter died due to massive blood loss
caused by 12 stab wounds.
Dulin was charged with murder before the RTC of
Tuguegarao, Cagayan. Dulin raised incomplete
self-defense, but the RTC convicted him as
charged. The CA affirmed the conviction.
Issue: Whether the lower courts erred in not
appreciating the presence of self-defense or
incomplete self-defense.
Ruling: Appeal PARTIALLY GRANTED
There was no self-defense
The CA observed that although Batulan had
initiated the attack against Dulin the unlawful
aggression from Batulan effectively ceased once
Dulin had wrested the weapon from the latter.
We uphold the finding and holding of the CA.
Batulan, albeit the initial aggressor against
Dulin, ceased to be the aggressor as soon as
Dulin had dispossessed him of the weapon.
Even if Batulan still went after Dulin despite the
latter going inside the house of Danao, where they
again grappled for control of the weapon, the
grappling for the weapon did not amount to
aggression from Batulan for it was still Dulin
who held control of the weapon at that point.
Whatever Dulin did thereafter – like stabbing
Batulan with the weapon – constituted retaliation
against Batulan. In this regard, retaliation was not
the same as self-defense. In retaliation, the
aggression that the victim started already ceased
when the accused attacked him, but in selfdefense,
the aggression was still continuing when the
accused injured the aggressor. As such, there was
no unlawful aggression on the part of Batulan to
justify his fatal stabbing by Dulin.
Still, Dulin vigorously insists that the initial
aggression employed by Batulan did not cease
because the latter followed him into Danao’s house
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with the singular purpose of ending his life; and
that there was no gap in the aggression initiated by
Batulan.
The insistence is unwarranted. Dulin admitted
having successfully disarmed Batulan and then
running away from him. With the aggression by
Batulan having thereby ceased, he did not
anymore pose any imminent threat against
Dulin. Hence, Batulan was not committing
any aggression when Dulin fatally stabbed
him. It is notable, too, that the results of the
medico-legal examination indicating Batulan to
have sustained twelve stab wounds confirmed the
cessation of the attack by Batulan. The numerosity
and nature of the wounds inflicted by the accused
reflected his determination to kill Batulan, and the
fact that he was not defending himself.
Incomplete self-defense was not proved
Pursuant to Article 69 of the Revised Penal Code, the
privileged mitigating circumstance of incomplete
self-defense reduces the penalty by one or two
degrees than that prescribed by law. For this
purpose, the accused must prove the existence of
the majority of the elements for self-defense, but
unlawful aggression, being an indispensable
element, must be present. Either or both of the
other requisites may be absent xxx.
Dulin posits that the totality of circumstances
indicated that his acts constituted incomplete self-
defense, and must be appreciated as a privileged
mitigating circumstance. Dulin’s position is
untenable. Like in complete self-defense, Dulin
should prove the elements of incomplete self-
defense by first credibly establishing that the victim
had committed unlawful aggression against him.
With Batulan’s aggression having already ceased
from the moment that Dulin divested Batulan of
the weapon, there would not be any incomplete
self-defense. Moreover, as borne out by his
stabbing of Batulan several times, Dulin did not act
in order to defend himself or to repel any attack,
but instead to inflict injury on Batulan.
[NOTE: The SC held that the lower courts erred
in appreciating the attendance of treachery, as the
stabbing by Dulin did not take Batulan by surprise.
Dulin was convicted only for homicide].
Same reasoning in the case where the Neighbor
had sexual intercourse with the Wife when the
Husband left to go fishing. The W allowed it
thinking he was her H but when the N finished,
dressed himself up and he told the W, "Osang,
salamat!" Upon hearing the voice, the W realized
that he is not her H so she immediately jumped
out of the bed, took the bolo and hacked the N.
The N died. Prosecuted for homicide. She invoked
self-defense, particularly defense of honor and
chastity.
Was there self-defense?
There was no self-defense. The unlawful
aggression already ceased to exist because the
sexual congress was already finished. There was
no more honor to protect.
If you were the judge, would you convict or acquit
the accused?
Yes, I would convict the accused for the crime of
homicide, but I will give the said victim the
mitigating circumstances of immediate
vindication of a grave offense and sudden impulse
of passion and obfuscation. This to lower the
imposable penalty.
Ex. A tried to stab B. B evaded the blow. In the
course of said struggle, B gained possession of the
bolo or gun and fired at A. A died.
There was no self-defense. Even if the unlawful
aggression was started by A, the moment B
gained possession of the bolo or gun, the unlawful
aggression has already ceased to exist. There was
no more danger on the life of B. so when B fired,
it was not an act of retaliation which is justifying
circumstance.
2.Reasonable necessity of the means
employed to prevent or repel it.
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When you say reasonable necessity it does not
mean that when the aggressor makes use of a
bolo, the person defending must also make use
of a bolo. What the law requires is rational
equality. Rational is the means employed.
Rationally necessary to prevent or repel it.
Factors to be considered in order to be said that
the means employed is rationally necessary:
(a) Nature and the number of the weapon
used by the aggressor
(b) Physical condition, size, weight and other
personal circumstances of the aggressor
versus that of the person defending himself
(c) Place and location of the assault
All of these would determine if the means
employed of the person defending himself is
reasonably necessary to prevent or repel the
aggression.
3. Lack of sufficient provocation on the part
of the person defending himself.
PROVOCATION - refers to any immoral act or
conduct, unjustified act or conduct which stirs a
person to do wrong.
SUFFICIENT PROVOCATION - adequate to stir a
person to do the wrongful act and when it is
proportionate to the gravity of the act
Circumstances where there is no sufficient
provocation on the part of the person
defending himself:
 When no provocation at all was given
 When although provocation was given, it
was not sufficient
 When although the provocation was
sufficient, it did not come from the person
defending himself
 When although provocation came from the
person defending himself, it is not immediate or
imminent to the aggression.
Josue v. People, G.R. No. 199579, 10
December 2012
Facts: Petitioner Ramon Josue was charged with
frustrated homicide before the RTC of Manila.
The prosecution alleged that one evening, a
barangay tanod named Armando Macario was
buying medicine when he was approached by
Josue, while the latter was shouting to ask why
Macario painted the latter’s vehicle. Macario
denied the accusation, but Josue still pointed his
gun and shot at Macario, who was hit in the elbow
and fingers. The unarmed Macario tried to run, but
Josue still fired at him, causing a gunshot wound
at Macario’s back. The latter was brought to
hospital for treatment, where the doctor
confirmed that the injuries were fatal if not
medically attended to.
Josue claimed that he merely acted in self-defense.
He caught Macario and some of his cohorts
stealing the battery of his jeepney. When Josue
sought the attention of Macario’s group, the latter
pulled a gun and tried to shoot Josue, but the gun
jammed. Josue then got his gun and fired at
Macario.
The RTC found Josue guilty of frustrated
homicide, and the CA affirmed the RTC.
Issue: Whether Josue is not guilty due to self-
defense.
Ruling: Petition DENIED.
In the present case, particularly significant to this
element of “unlawful aggression” is the trial
court’s finding that Macario was unarmed at the
time of the shooting, while Josue then carried with
him a .45 caliber pistol. According to prosecution
witness Villanueva, it was even Josue who
confronted the victim, who was then only buying
medicine from a sari-sari store. Granting that the
victim tried to steal Josue’s car battery, such did
not equate to a danger in his life or personal
safety. At one point during the fight, Macario
even tried to run away from his assailant, yet Josue
continued to chase the victim and, using his .45
caliber pistol, fired at him and caused the mortal
wound on his chest. Contrary to Josue’s defense,
there then appeared to be no “real danger to his
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life or personal safety,” for no unlawful aggression,
which would have otherwise justified him in
inflicting the gunshot wounds for his defense,
emanated from Macario’s end.
The weapon used and the number of gunshots
fired by Josue, in relation to the nature and
location of the victim’s wounds, further negate the
claim of self-defense. For a claim of self-defense
to prosper, the means employed by the person
claiming the defense must be commensurate to the
nature and extent of the attack sought to be
averted, and must be rationally necessary to
prevent or repel an unlawful aggression.
Considering Josue’s use of a deadly weapon when
his victim was unarmed, and his clear intention to
cause a fatal wound by still firing his gun at the
victim who had attempted to flee after already
sustaining two gunshot wounds, it is evident that
the Josue did not act merely in self-defense, but
was an aggressor who actually intended to kill his
victim. [end]
Guevarra & Guevarra v. People, G.R. No.
170462, 5 February 2014
Facts: Rodolfo Guevarra and his son Joey were
charged with frustrated homicide and homicides
under two informations. The prosecution alleged
that the victims (and brothers) Erwin and David
Ordoñez and Vingua were passing the Guevarras’
compound in Alicia, Isabela when Joey stabbed
David with a bolo. Erwin, who was walking ahead
of his companions, approached the scene, but was
met by Rodolfo who then hacked him. The
Guevarras then dragged Erwin into their
compound and continued hacking Erwin. David
and Erwin became unconscious and were brought
to the hospital. David died.
The defense alleged that Erwin, David and Vingua
forced their way into the Guevarra compound and
threw stones at Rodolfo’s tricycle and house.
Rodolfo went down the silung of his house and
shouted at the three to stop. Erwin and David
attacked the Guevarras, and as a response Rodolfo
reached for his bolo and hacked and stabbed Erwin
and David until the latter fell to the ground.
The RTC of Cauayan City, Isabela found the
Guevarras guilty, holding that they failed to prove
unlawful aggression on the part of the victims. The
CA affirmed the RTC.
Issue: Whether the CA erred in failing to
appreciate the presence of self-defense.
Ruling: Petition DENIED.
By invoking self-defense, the petitioners, in effect,
admitted to the commission of the acts for which
they were charged, albeit under circumstances that,
if proven, would have exculpated them. With this
admission, the burden of proof shifted to the
petitioners to show that the killing and frustrated
killing of David and Erwin, respectively, were
attended by the following circumstances: (1)
unlawful aggression on the part of the victims; (2)
reasonable necessity of the means employed to
prevent or repel such aggression; and (3) lack of
sufficient provocation on the part of the persons
resorting to self-defense.
Of all the burdens the petitioners carried, the most
important of all is the element of unlawful
aggression. Unlawful aggression is an actual
physical assault, or at least threat to inflict real
imminent injury, upon. person [sic]. The element
of unlawful aggression must be proven first in
order for self-defense to be successfully pleaded.
There can be no self-defense, whether complete or
incomplete, unless the victim had committed
unlawful aggression against the person who
resorted to self-defense.
As the RTC and the CA did, we find the absence
of the element of unlawful aggression on the part
of the victims. As the prosecution fully established,
Erwin and David were just passing by the
petitioners’ compound on the night of November
8, 2000 when David was suddenly attacked by Joey
while Erwin was attacked by Rodolfo. The attack
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actually took place outside, not inside, the
petitioners’ compound, as evidenced by the way
the petitioners’ gate was destroyed. The manner by
which the wooden gate post was broken coincided
with Erwin’s testimony that his brother David,
who was then clinging onto the gate, was dragged
into the petitioners’ compound. These
circumstances, coupled with the nature and
number of wounds sustained by the victims, clearly
show that the petitioners did not act in self-defense
in killing David and wounding Erwin. The
petitioners were, in fact, the real aggressors. [end]
Dela Cruz v. People & Gonzales, G.R. No.
189405, 19 November 2014 [See also: Sevillano]
Facts: One afternoon, petitioner Dela Cruz went
into Sykes Asia, the workplace of the victim Jeffrey
Gonzales. As Dela Cruz approached Jeffrey from
the back, he was already pointing a gun at the back
of Jeffrey’s head. At the last second, the latter
managed to deflect Dela Cruz’s hand, and they
struggled for the possession of the gun. Dela Cruz
won the struggle and remained in possession of
the gun, while Jeffrey held up a fire extinguisher.
Dela Cruz pulled the trigger 4 times, the last finally
discharging a round which hit and killed Jeffrey.
Dela Cruz, on the other hand, alleged that he went
to Sykes to fetch his wife Darlene. As she was not
on her table, Dela Cruz approached Jeffery and
asked for her whereabouts. Jeffrey’s response
shocked and appalled Dela Cruz. Later, the former
cursed the latter. Then, Jeffrey picked up a gun and
aimed at Dela Cruz’s face. He pulled the trigger
but the gun did not fire. Dela Cruz grappled with
Jeffrey for the possession of the gun. While doing
so, the gun clicked for 2 to 3 times, but the gun did
not fire.
Dela Cruz won the struggle and tried to run away,
but Jeffrey blocked his path, shouted for the
guards, and tried to smash Dela Cruz’s head with
a fire extinguisher. The latter parried the attack
while still holding the gun, and the gun accidentally
fired, and the bullet hit Jeffrey’s forehead.
Dela Cruz was charged with homicide, and the
RTC Makati found Dela Cruz guilty of the same.
On appeal, the CA affirmed the RTC.
Issue: Whether Dela Cruz acted in self-defense.
Ruling: Petition DENIED.
The Court finds that Dela Cruz’s defense is sorely
wanting. Hence, his petition must be denied.
First. The evidence on record does not support
petitioner's contention that unlawful aggression
was employed by the deceased-victim, Jeffrey,
against him.
Unlawful aggression is the most essential element
of self-defense. It presupposes actual, sudden,
unexpected or imminent danger — not merely
threatening and intimidating action. There is
aggression, only when the one attacked faces real
and immediate threat to his life. The peril sought
to be avoided must be imminent and actual, not
merely speculative. In the case at bar, other than
petitioner's testimony, the defense did not adduce
evidence to show that Jeffrey condescendingly
responded to petitioner's questions or initiated the
confrontation before the shooting incident; that
Jeffrey pulled a gun from his chair and tried to
shoot petitioner but failed — an assault which may
have caused petitioner to fear for his life.
Even assuming arguendo that the gun originated
from Jeffrey and an altercation transpired, and
therefore, danger may have in fact existed, the
imminence of that danger had already ceased
the moment petitioner disarmed Jeffrey by
wresting the gun from the latter. After
petitioner had successfully seized it, there was no
longer any unlawful aggression to speak of that
would have necessitated the need to kill Jeffrey. As
aptly observed by the RTC, petitioner had every
opportunity to run away from the scene and seek
help but refused to do so.
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Thus, when an unlawful aggression that has
begun no longer exists, the one who resorts to
self-defense has no right to kill or even wound
the former aggressor. To be sure, when the
present victim no longer persisted in his purpose
or action to the extent that the object of his attack
was no longer in peril, there was no more unlawful
aggression that would warrant legal self-defense
on the part of the offender. [20] Undoubtedly,
petitioner went beyond the call of self-
preservation when he proceeded to inflict
excessive, atrocious and fatal injuries on Jeffrey,
even when the allegedly unlawful aggression had
already ceased.
More, a review of the testimony of the prosecution
witness, Pelaez, will show that if there was
unlawful aggression in the instant case, the same
rather emanated from petitioner.
Petitioner's contention that Jeffrey's unlawful
aggression was continuous and imminent is,
therefore, devoid of merit.
Given that the criteria of unlawful aggression is
indubitably absent in the instant case, the severe
wounds inflicted by petitioner upon Jeffrey was
unwarranted and, therefore, cannot be considered
a justifying circumstance under pertinent laws and
jurisprudence.
Second. Even assuming that the unlawful aggression
emanated from the deceased victim, Jeffrey, the
means employed by petitioner was not reasonably
commensurate to the nature and extent of the
alleged attack, which he sought to avert.
If petitioner had honestly believed that Jeffrey was
trying to kill him, he should have just run, despite
any obstruction, considering that he was already in
possession of the gun. He could have also
immediately sought help from the people around
him, specifically the guard stationed at the floor
where the shooting incident happened. In fact, he
could have reported the incident to the authorities
as soon as he had opportunity to do so, if it was
indeed an accident or a cry of self-preservation.
Yet, petitioner never did any of that.
We find it highly specious for petitioner to go
through the process of tussling and hassling with
Jeffrey, and in the end, shooting the latter on the
forehead, not only once, but four times, the last
shot finally killing him, if he had no intention to
hurt Jeffrey. [end]
A woman was on her way home at 3AM. Suddenly
a man appeared, boxed her, dragged her on a
portion of a vacant lot, boxed her again, pinned
her down, and undressed her. When the man
stood up to undress himself, the woman took the
moment to get the balisong in her bag. When the
man placed himself on top of the woman, the
woman stabbed the man. The man died.
Prosecuted for homicide. The woman invoked
self-defense particularly defense of one’s honor
and chastity.
Is there self-defense?
Let's go by the requisites.
First, unlawful aggression. Was there unlawful
aggression? Yes, the man boxed her, dragged her,
undressed her, pinned her down. This is
unlawful aggression sufficient to mean that she
would be raped. Second, reasonable necessity of
the means employed to prevent or repel the
aggression. The man was unarmed.
Is it reasonably necessary for the woman to make
use of the balisong?
Yes, because of the factors to be considered.
Although the said man [is unarmed], you must
take into consideration of the personal
circumstances of the woman versus that of the
man, the physical circumstances. Likewise, you
must take into consideration the place and the
occasion. [It was 3 o'clock in the morning, nobody
could give help to the woman. The only means she
could do to help herself and prevent the act of
rape would be to stab the man.]
The second element is present.
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Third, lack of sufficient provocation. It is present.
The woman was merely walking on her way
home. Absolutely there was no sufficient
provocation coming from the woman.
Therefore, the woman was justified in killing the
man. She acted in self-defense.
Ex. When the father went home, his son was
crying. When he was asked by his father why he
was crying, he said he was slapped by the
neighbor. When he was asked why he was
slapped, the son did not answer. The father
decided to inquire from the neighbor why he
slapped his son. Such inquiry angered the
neighbor. The neighbor who was at that time was
gardening tried to hit the father with a rake that
he was using for gardening. The first blow and the
second blow were evaded. The neighbor tried to
hit again the father for the third time, the father
saw a pointed stick on the ground, took it and
stabbed the neighbor. The neighbor suffered a
fatal wound, brought to the hospital and survived.
The father was prosecuted for frustrated
homicide. He invoked self-defense.
Is there self-defense?
First, there was unlawful aggression. The
neighbor tried to hit him with a rake 3 times.
There was an image of danger from his life.
Second, reasonable necessity of the means
employed to prevent or repel the aggression. The
father went to the house of the neighbor without
any arms and at the time he was attacked, he just
saw a pointed stick. That is the only means that he
could avail at the moment to protect himself.
Therefore it was reasonably necessary to use the
said means.
Third, lack of sufficient provocation on the part of
the person defending himself. The act of the
father inquiring from the neighbor why he
slapped his son was an act within his right. It
cannot be considered as sufficient provocation. It
is the right of the father to know why his son was
hurt or injured by the neighbor.
Toledo v. People, G.R. No. 158057, 24
September 2004: No accidental self-defense
There is no accidental self-defense, as SD is
inconsistent with accident. Because in self-defense
it is direct and positive overt act in the name of self-
preservation. It is direct and positive. It cannot be
done out of accident.
Facts: On his way home one late afternoon,
accused Toledo saw his nephew, Ricky Guarte
drinking along with his friends Famero, Fosana
and Cortes. They were drinking inside the house
of Ricky’s parents. Toledo requested the group to
refrain from making noise. Then he went inside his
house and slept. Later that evening Ricky and his
friends, who were sleeping in the Guarte’s house,
heard stones being hurled at the roof. Ricky got up
and saw that it was Toledo who was stoning the
hose. Ricky went to his uncle’s house and asked
why he was stoning their house. Without warning,
Toledo stabbed Ricky in the abdomen with a bolo.
He was rushed to the hospital but died due to
massive blood loss.
Toledo asserts that while on his way home he
ordered Ricky’s group not to make loud noises,
and they obliged. He then went inside his house
(w/c was 5M away) and slept. Later, he was
awoken by the loud noises made by Ricky’s group.
Ricky, who was inebriated, was incensed and
pulled a balisong, pushed Toledo’s door and
threatened to stab the latter. Toledo took his bolo
and pushed the door with all his might and then
pointed the bolo at Ricky. The bolo accidentally hit
Ricky in the stomach.
Toledo was charged with homicide before the
RTC of Romblon, which convicted him and
disregarded his claim that the bolo accidentally hit
Ricky in the stomach. Toledo appealed to the CA,
invoking Art. 12, Par. 4; in that the stabbing was
an accident. The CA denied the appeal, holding
that Toledo failed to prove that he acted in self-
defense.
Issue: Whether Toledo was able to prove self-
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defense when his bolo accidentally hit Ricky.
Ruling: Petition DENIED.
The petitioner testified that his bolo hit the victim
accidentally. He asserted in the RTC and in the
CA that he is exempt from criminal liability for the
death of the victim under Article 12, paragraph 4
of the Revised Penal Code.
However, the petitioner changed gear, so to speak,
and now alleges that he acted in self-defense when
he stabbed the victim. As such, he contends, he is
not criminally liable under Article 11, paragraph 1
xxx. He avers that he was able to prove the
essential elements of complete self-defense;
however he also claims that his bolo accidentally
hit the stomach of the victim.
It is a matter of law that when a party adopts a
particular theory and the case is tried and decided
upon that theory in the court below, he will not be
permitted to change his theory on appeal. The case
will be reviewed and decided on that theory and
not approached and resolved from a different
point of view. To permit a party to change his
theory on appeal will be unfair to the adverse
party.
It is an aberration for the petitioner to invoke
the two defenses at the same time because the
said defenses are intrinsically antithetical.
There is no such defense as accidental self-
defense in the realm of criminal law.
Self-defense under Article 11, paragraph 1 of the
Revised Penal Code necessarily implies a
deliberate and positive overt act of the accused
to prevent or repel an unlawful aggression of
another with the use of reasonable means. The
accused has freedom of action. He is aware of
the consequences of his deliberate acts. The
defense is based on necessity which is the supreme
and irresistible master of men of all human affairs,
and of the law. From necessity, and limited by it,
proceeds the right of self-defense. The right
begins when necessity does, and ends where it
ends.[12] Although the accused, in fact, injures or
kills the victim, however, his act is in accordance
with law so much so that the accused is deemed
not to have transgressed the law and is free from
both criminal and civil liabilities.
On the other hand, the basis of exempting
circumstances under Article 12 of the Revised
Penal Code is the complete absence of
intelligence, freedom of action, or intent, or
the absence of negligence on the part of the
accused. The basis of the exemption in Article
12, paragraph 4 of the Revised Penal Code is
lack of negligence and intent. The accused does
not commit either an intentional or culpable
felony. The accused commits a crime but there is
no criminal liability because of the complete
absence of any of the conditions which constitute
free will or voluntariness of the act. An accident is
a fortuitous circumstance, event or happening; an
event happening wholly or partly through human
agency, an event which under the circumstances is
unusual or unexpected by the person to whom it
happens [end]
2. Defense of a Relative
Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed
to prevent or repel it;
3. In case the provocation was given by the
person attacked, the one making the defense
had no part therein.
Even if the relative, who was defended by the
offender, was the one provoked the offended
party, the offender should [have taken] no part in
the provocation in said situation so as to justify
the defense of a relative.
3. Defense of a Stranger
Elements:
1. Unlawful aggression;
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2. Reasonable necessity of the means employed
to prevent or repel the attack;
3. The person defending be not induced by
revenge, resentment, or ill motive.
The 3rd element requires that the said offender
must be disinterested and not induced by any
other motive, otherwise, defense of a stranger will
not lie. [The person claiming the defense must
be ignited solely by disinterest and generous
motive.]
Q: What if one night, A and B were on board a
jeepney. Said jeepney was flagged down by X.
Upon reaching a dark portion of the street, X
pulled a balisong and declared a hold-up. X poked
A with his balisong and said "give me your
cellphone". A did not want to give her cellphone
to X. X was about to stab A when B, upon seeing
that the latter was about to stab B, immediately
kicked X out of the jeepney. X, who fell from the
jeepney suffered physical injuries. B was
prosecuted for serious physical injuries. B
invoked defense of a stranger.
Answer:
We should go by the elements:
1st: Unlawful aggression. Was there unlawful
aggression?
A: Yes, X was about to stab A because A did not
want to give her CP.
2nd: Reasonable necessity of the means
employed to prevent or repel said aggression
A: Yes. Note that B was unarmed. All that he did
was he kicked X out of the jeepney. It was
necessary for him to do said act in order for him
to prevent the aggression
3rd: The offender was induced by revenge,
resentment, or motive A: Yes. In the problem,
there was no showing that B knows X, so it cannot
be said that B is induced by any motive.
4. State of Necessity
Elements of state of necessity:
1. The evil sought to be avoided actually
exists;
2. The injury feared be greater than that
done to avoid it;
3. There be no other practical and less
harmful means of preventing it.
DOCTRINE OF STATE OF NECESSITY
GR: In justifying circumstances, there is no
criminal as well as civil liability.
XPN: State of necessity. There is no criminal
liability but there is civil liability- borne not only
by the accused, but all those people who
benefitted in this state of emergency.
Art. 101 of the RPC provides that "In cases falling
within subdivision 4 of Art 11, the persons for
whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they
may have received.”
[4. The necessity(/evil sought to be avoided)
must not be due to the negligence or the
violation of the law of the actor.]
Sample problem:
A pregnant woman met an accident. She was
immediately brought to the hospital. Because of
the said dire situation, the doctor who was in
charge of the pregnant woman has to make a
decision, which is to save only one life, either the
life of the woman or the baby that she is carrying.
The doctor chose to save the life of the woman.
Because of that, the fetus died. Prosecuted for
abortion, the doctor invoked the doctrine of state
of necessity.
LET'S GO BY THE ELEMENTS:
1st: That the evil sought to be avoided actually
exists;
In this case, the life of the baby and the mother is
in danger
2nd: That the injury feared be greater than that to
avoid it;
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The injury (death of the pregnant woman) is
greater than that of the death of the fetus
3rd that there be no other practical and less
harmful means of preventing it
The situation was an emergency. The woman had
no relatives with her so the doctor has to decide
immediately—either to save the life of the mother
or the fetus. Therefore the doctor should be
absolved from criminal liability.
A woman was riding a taxi. In order to avoid
traffic in EDSA, the taxi went to the streets
along Mandaluyong. The taxi entered a street
with a signage stating: “do not enter.” The
driver disregarded the signage. The taxi then
was pushed to an emergency situation, there
was a deep excavation and the taxi will fall
therein. He swerved to the right thereby hitting
several bystanders and the latter sustained
serious physical injuries. He was prosecuted
for reckless imprudence resulting to serious
physical injuries. The driver invoked state of
necessity. Is the defense tenable?
Elements:
1st: That the evil sought to be avoided actually
exists;
Yes, there was a collision
2nd: That the injury feared be greater than that to
avoid it;
Yes, there would be death or injury.
3rd that there be no other practical and less
harmful means of preventing it
Yes.
However, this time the taxi driver would be liable.
Aside from these 3 requisites stated by the
law, it should be added that the necessity must
not be due to the negligence or violation of the
law by the actor. In this case, there was a
warning to the taxi driver not to enter the street,
yet he proceeded. It is through his negligence that
caused the state of necessity, therefore he is
criminally and civilly liable.
5. Fulfillment of a duty or in a lawful exercise
of a right or office
Elements of Par. 5, Art. 11:
1. Accused acted in the performance of a
duty or in the lawful exercise of a right
or office.
2. Injury caused or offense committed be
the necessary consequence of the due
performance of duty or the lawful
exercise of such right or office.
Note that the injury is the necessary consequence
of the lawful exercise of duty.
6. Obedience to an order issued by a superior
for some lawful purpose
Elements of Par. 6, Art. 11:
1. An order has been issued by a superior
2. Such order must be for some lawful
purpose
3. Means used by the subordinate to carry
out said order is lawful
Q: Chief of police of QC gave a warrant of
arrest to his subordinates for the arrest of A.
If A refuse to be arrested, they can immobilize
A. The police officers saw A watering the
plants. Upon seeing A, police officer B
immediately fired at A. B invoked obedience to
an order by a superior and exercise of a lawful
duty. Are these circumstances present?
A: [Both are NOT present]
Obedience to an order of a superior. Although
the officer acted upon the order of the superior,
the means employed by the subordinate to carry
out said order was unlawful. B immediately
fired at A even before showing the warrant of
arrest. Therefore, this justifying circumstance is
absent.
With regard to the lawful exercise of a duty,
the second element is absent—that the injury
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caused or offense committed be the necessary
(or unavoidable) consequence of the due
performance of duty or the lawful exercise of
such right or office. The killing of A in this
case was not an unavoidable consequence of the
performance of B’s duty.
Note: both the order and the means used
by the accused must be lawful. However,
even if the order is not lawful but it
appears to be lawful and the subordinate
believes it to be lawful, the justifying
circumstance would still lie.
Example:
X is a convict in the New Bilibid Prison.
During an opportunity X escaped. Prison guards
learned of it and sought the assistance of the
police. They followed X. He went to the public
market because he saw the guards and
policemen following him. X took a child as a
hostage and pointed an icepick at the neck of
the child. He told them that if they would
come near he would attack the child. The child
sensing that his life is in danger started to cry.
The convict was annoyed by the crying and
tried to attack the child with the icepick. A
Policeman shot the prisoner. He died.
The police officer was prosecuted for the crime
of homicide. As his defense, he acted in the
lawful performance of duty. Was he right?
First element: the police officer acted in the
performance of his duty. He had an order to
arrest and bring back to prison the prisoner.
Second element: it is a necessary consequence
of the due performance of his duty. He was
preventing the danger posed by the imminent
attack against the boy. He should be acquitted.
BATTERED WOMAN SYNDROME
Anti-Violence against Women and their Children
Act of 2004 (R.A. 9262)
RA 9262, Section 26:
Victim-survivors who are found by the court to
be suffering from battered woman syndrome do
not incur any criminal and civil liability
notwithstanding the absence of any of the
elements for justifying circumstance of self-defense
under the RPC.
In the determination of the state of mind of the
woman who was suffering from battered woman’s
syndrome at the time of the commission of the
crime, the courts shall be assisted by expert
psychiatrists/psychologists.
Battered Woman Syndrome: a scientifically defined
pattern of psychological and behavioral symptoms
found in women living in battering relationships as
a result of cumulative abuse (Sec. 3(b), R.A. 9262).
But before the court may acquit the accused
by reason of battered woman syndrome, there
must be the presentation of expert witnesses.
There must be testimonies coming from
psychiatrists or psychologists that at the time
of commission, the victim was indeed suffering
from battered woman syndrome. Courts or
judges cannot by themselves determine if
indeed the woman was suffering battered
woman syndrome.
A and B are husband and wife. They had been
living for 12 years. In the course of their
relationship, A would be hit by B for every minor
mistakes that she [would] commit. The wife
would always suffer physical injuries and would
often go to her psychiatrist. One time, the
husband arrived home and drunk. This time, he
did not beat his wife, but immediately went to the
bedroom and slept.
The wife took this opportunity to kill her
husband. She took a bolo and hacked her sleeping
husband. Upon seeing her husband dead, she
wrapped him with their blanket. Thereafter, she
took her children and left the house. After some
time, the neighbors of the husband and wife
noticed a foul smell coming from the house. When
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they opened the house, they saw the body of the
husband. The wife was prosecuted for parricide.
If you were the counsel, what will be your
defense?
You can have the defense of the Battered Woman
Syndrome.
What is a battered woman?
She is woman who is repeatedly subjected to any
forceful physical or psychological behavior by a
man in order to coerce her to do something he
wants her to do without concern for her rights.
Battered women includes wives or women in
any form of intimate relationship with men.
Furthermore, in order to be classified as a
battered woman, the couple must go through
the battering cycle at least twice. Any woman
may find herself in an abusive relationship with a
man once. If it occurs a second time, and she
remains in the situation, she is defined as a
battered woman.
Note that battered woman syndrome is akin to
justifying. It is even better that self-defense
because in self-defense, you have to prove that
the elements are present. However, in battered
woman syndrome, what should be proven is that
the wife is suffering from battered woman
syndrome. It is through the expert testimony of
the psychiatrist who will prove that the wife is
suffering from battered woman syndrome. If this
is proven, she is absolved from criminal and civil
liability.
This is an actual case People vs Genosa wherein
the wife was prosecuted for parricide. However,
in this case, RA 9262 was not yet enacted, so the
wife was convicted for parricide, but she was
entitled to mitigating circumstances.
Art. 12. Circumstances which exempt from
criminal liability. — the following are exempt
from criminal liability:
1. An imbecile or an insane person, unless the
latter has acted during a lucid interval.
When the imbecile or an insane person has
committed an act which the law defines as a
felony (delito), the court shall order his
confinement in one of the hospitals or asylums
established for persons thus afflicted, which
he shall not be permitted to leave without first
obtaining the permission of the same court.
2. A person under nine years of age.
3. A person over nine years of age and under
fifteen, unless he has acted with discernment,
in which case, such minor shall be proceeded
against in accordance with the provisions of
Art. 80 of this Code.
When such minor is adjudged to be
criminally irresponsible, the court, in
conformably with the provisions of this and
the preceding paragraph, shall commit him to
the care and custody of his family who shall be
charged with his surveillance and education
otherwise, he shall be committed to the care of
some institution or person mentioned in said
Art. 80.
4. Any person who, while performing a lawful
act with due care, causes an injury by mere
accident without fault or intention of causing
it.
5. Any person who act under the compulsion of
irresistible force.
6. Any person who acts under the impulse of an
uncontrollable fear of an equal or greater
injury.
7. Any person who fails to perform an act
required by law, when prevented by some
lawful or insuperable cause.
EXEMPTING CIRCUMSTANCES
Those circumstances if present or attendant in the
commission of a felony would serve to exempt the
offender from criminal liability but not from civil
liability.
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the commission of
Although a wrong is committed, the offender is the crime, NOT after.
exempted from criminal liability because he acted Exempting under any Not exempting under
without voluntariness. There is absence of any of circumstance. any circumstance
the elements of voluntariness. There is absence of because, if it can be
either criminal intent or freedom of action or shown that he
intelligence. Therefore, he is free from criminal committed the crime
liability but since a wrong is done, he is civilly in lucid interval, he is
liable. liable.

Justifying Exempting
Just like exempting circumstance, imbecility and
Circumstances Circumstances
insanity are both admission and avoidance: A was
Affect the act not the Affect the doer of the
charged with crime. He invoked insanity. Hence
doer act but not the act itself
he in effect admitting the crime. But he wanted to
Perform an act which A wrong has been be absolved of criminal liability by stating that he
is lawful in nature committed is insane so that he will not have any criminal
There is no crime and There is a crime but no liability.
no criminal criminal because
offender acted without In the Civil Code, it is presumed that the person is
voluntariness sane. Therefore the burden of evidence is on the
GR: No criminal GR: No criminal defense. Therefore, all the accused has to do is to
liability and no civil liability but with civil prove that he was insane when he committed the
liability. liability because a crime.
crime was committed.
May be a defense only Defense both in Situation:
in intentional felonies. intentional and A:
culpable felonies What if A killed B and stabbed him many times. A
was prosecuted for murder. The defense tried to
1. Insanity and imbecility prove that was he was insane. To prove insanity,
Note that in this paragraph there are two the defense presented the father of A, who
exempting circumstances: testified that his son would go out of their home
IMBECILITY INSANITY naked and thereafter return. Second, his son was
An imbecile is one Refers to the mental in and out of the mental institution. Third, his son
who is already aberrational would steal the jewelries of his mother and would
advanced in age but background or sell it at an extreme low price. These were the
only have a thinking disease of the mind evidence presented by the defense.
of a child between 2 and must completely
and 7. impair the In this case, the accused cannot be considered to
intelligence of the be insane. The father’s testimony, instead of
There is no accused (unable to proving that A was insane, established otherwise.
intelligence, an distinguish between First, an insane person would not know where his
element of house is. Second, A was in and out of the mental
right from wrong).
voluntariness. institution. Third, an insane person would not
To be exempting it know that a thing has value (considering the
must be proved that evidence that the son sold the jewelries of the
the accused was mother at a low price)
insane at the time of

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B:
What if A killed B. A stated that a week prior to
the killing, he could not sleep and there was a
voice that kept nagging him, "Kill B, kill B." And so
he killed B, so he followed the voice. He pleaded
guilty but his defense was insanity.
The Supreme Court ruled that he is not insane.
Mere mental disturbance, mere craziness is not
the insanity contemplated by the law. It is the
insanity which would deprive the offender the
capacity to distinguish right from wrong and the
consequences of his act.
In an old case, sleep walking or somnambulism is
also considered as akin to insanity. He did not
know what he was doing at that time when he
killed the victim. Therefore, there is no criminal
liability.
2 & 3: MINORITY
Sec. 6, RA 9344
Sec. 6. Minimum age of criminal responsibility. – A child
fifteen (15) years of age or under at the time of the
commission of the offense shall be exempt from
criminal liability. However, the child shall be
subjected to an intervention program pursuant to
Section 20 of this Act.
A child above fifteen (15) years but below eighteen
(18) years of age shall likewise be exempt from
criminal liability and be subjected to an intervention
program, unless he/she has acted with discernment,
in which case, such child shall be subjected to the
appropriate proceedings in accordance with this Act.
The exemption from criminal liability herein
established does not include exemption from civil
liability, which shall be enforced in accordance with
existing laws
The second and third circumstance was already
amended by R.A. 9344 or the Juvenile Justice
and Welfare Act of 2006. This refers to a child in
conflict of the law. A child in conflict with the law
is a child who is alleged as, accused of, or
adjudged as, having committed an offense under
Philippine laws. The effect of minority on the
criminal liability would depend on the age of the
minor.
Under the law, if a child committed a felony
when he is 15 or below, he is exempted from
criminal liability. The moment the offender is
age 15 years or below, do not anymore look for
discernment. Just by the fact that he is 15 or below,
he is totally exempted.
If he is over 15 but below 18, but he did not act
with discernment, he is exempted from
criminal liability. If he is over 15 but below 18
and he acted with discernment, he is not
exempted from criminal liability and he will be
prosecuted just like any other criminal.
So, if the offender is 16, therefore he is over 15 but
below 18, and he committed a crime and acted
with discernment. During the trial, it was
established and proven that he is guilty beyond
reasonable doubt. There is already a
pronouncement of a judgment of civil liability.
Under Sec. 38, once the child who is under 18
years of age at the time of the commission of the
crime was found guilty of the offense charged the
court shall determine and ascertain any civil
liability which may have resulted from the
offense committed.
However, instead of pronouncing the judgment of
conviction, the court shall place the child in
conflict with the law under suspended sentence,
without need of application, even if he is already
18 or above at the time of the pronouncement of
his guilt. Provided, he is not yet beyond 21 years
of age (sec. 40). Provided however, that the
suspension of the sentence shall still be applied
even if the juvenile is already 18 years of age or
more at the time of the pronouncement of his
guilt. Therefore, as long as he is 18 years and
below at the time of the commission of the crime,
even if he is above 18 at the promulgation
pronouncing the judgment of conviction, the
court shall place the child in conflict with the law
under suspended sentence, without need of
application. Provided however, that the
suspension of the sentence shall still be applied
even if the juvenile is already 18 years of age or
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more at the time of the pronouncement of his
guilt.
Therefore, as long as he is 18 years and below at
the time of the commission of the crime, even if
he is above 18 at the promulgation of the
judgment, he can still benefit from the suspended
sentence.
SC: section 38 does not distinguish as to what
crime was committed. Therefore, the court shall
also not distinguish. Provided, his age is not over
21 years. Section 51 is the only provision that may
be given retroactive application to the accused. So
he need not be placed in prisons but instead in
agricultural camps, etc.
SEC. 51. Confinement of Convicted Children in
Agricultural Camps and other Training Facilities. -
A child in conflict with the law may, after
conviction and upon order of the court, be
made to serve his/her sentence, in lieu of
confinement in a regular penal institution, in an
agricultural camp and other training facilities
that may be established, maintained,
supervised and controlled by the BUCOR, in
coordination with the DSWD.
Note that under Section 40 of said act, if a child is
under suspended sentence, the court shall decide
to discharge or to extend the sentence for a
specific period of time or until the child attains
the maximum age of 21. Although there is
automatic suspension, it is tempered by Section
40. Therefore, the maximum limit is 21 years old.
This happened in People vs Sarcia and in People
vs Mantalaba. In the first case, the accused was
convicted of statutory rape. In this case, the SC
ruled that the law should be given a retroactive
application. Section 36 of the act provided that
persons who have been convicted and are serving
sentence at the time of the effectivity of the act
and who were below 18 at the time of the
commission of the offense for which they were
convicted and are serving sentence shall be given
a retroactive application of the act.
The SC also ruled that although the crime
committed is a heinous crime, the accused can still
be given a suspension of the sentence. Section 38
does not distinguish the nature of the crime, be it
heinous, capital, or light offense, the child is
entitled to suspension of sentence.
However, the SC ruled that considering the age of
Sarcia (already 31), he cannot be given anymore
the benefit of suspension. Although he committed
the crime when he was 17 years old, the
maximum age is 21.
The only benefit that was available to him was
that he shall serve his sentence in an agricultural
camp and other training facilities.
The same case was applied in People vs
Mantalaba. They have the very same issues. The
case is about the sale of illegal drugs involving
minors. In this case, the SC remanded the CA. The
CA should have suspended the sentence because
at that time the law was enacted and was on
appeal to the CA, the accused was 20 years of age,
hence he is entitled to the automatic suspension
of his sentence.
People v. Sarcia, G.R. No. 169641, 10
September 2009
Facts: An information was filed in the RTC of
Ligao City, charging accused-appellant Richard
Sarcia of raping AAA, who was then 6 years old,
sometime in 1996. The RTC found the
prosecution evidence credible and convicted
Sarcia as charged, sentencing him to suffer the
penalty of Reclusion Perpetua. On appeal, the CA
affirmed the conviction and increased the penalty
to death, holding that Sarcia may not be
considered a minor at the time of the commission
of the offense, as he reached 18 years of age in
1996.
Issue: Whether Sarcia may be deemed a minor at
the time of the commission of the crime.
Ruling: CA decision AFFIRMED with
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MODIFICATION: death penalty is reduced to
reclusion perpetua.
The guilt of Sarcia having been established beyond
reasonable doubt, we discuss now the proper
penalty to be imposed on him.
Article 335 of the Revised Penal Code, as amended
by Republic Act No. 7659, was the governing law
at the time Sarcia committed the rape in question.
Under the said law, the penalty of death shall be
imposed when the victim of rape is a child below
seven years of age. In this case, as the age of AAA,
who was five (5) years old at the time the rape was
committed, was alleged in the information and
proven during trial by the presentation of her birth
certificate, which showed her date of birth as
January 16, 1991, the death penalty should be
imposed.
However, this Court finds ground for modifying
the penalty imposed by the CA. We cannot agree
with the CA's conclusion that Sarcia cannot be
deemed a minor at the time of the commission of
the offense to entitle him to the privileged
mitigating circumstance of minority pursuant to
Article 68(2) of the Revised Penal Code. When
Sarcia testified on March 14, 2002, he admitted that
he was 24 years old, which means that in 1996, he
was 18 years of age. As found by the trial court, the
rape incident could have taken place "in any month
and date in the year 1996." Since the prosecution
was not able to prove the exact date and time when
the rape was committed, it is not certain that the
crime of rape was committed on or after he
reached 18 years of age in 1996. In assessing the
attendance of the mitigating circumstance of
minority, all doubts should be resolved in favor
of the accused, it being more beneficial to the
latter. In fact, in several cases, this Court has
appreciated this circumstance on the basis of a lone
declaration of the accused regarding his age.
Under Article 68 of the Revised Penal Code, when
the offender is a minor under 18 years, the penalty
next lower than that prescribed by law shall be
imposed, but always in the proper period.
However, for purposes of determining the proper
penalty because of the privileged mitigating
circumstance of minority, the penalty of death is
still the penalty to be reckoned with. Thus, the
proper imposable penalty for Sarcia is reclusion
perpetua.
Meanwhile, when Sarcia was detained at the New
Bilibid Prison pending the outcome of his appeal
before this Court, Republic Act (R.A.) No. 9344
took effect on May 20, 2006. The RTC decision
and CA decision were promulgated on January 17,
2003 and July 14, 2005, respectively. The
promulgation of the sentence of conviction of
Sarcia handed down by the RTC was not
suspended as he was about 25 years of age at that
time, in accordance with Article 192 of Presidential
Decree (P.D.) No. 603, The Child and Youth Welfare
Code and Section 32 of A.M. No. 02-1-18-SC, the
Rule on Juveniles in Conflict with the Law. Sarcia is now
approximately 31 years of age. He was previously
detained at the Albay Provincial Jail at Legaspi City
and transferred to the New Bilibid Prison,
Muntinlupa City.
R.A. No. 9344 provides for its retroactive
application xxx to those who have been convicted
and are serving sentence at the time of the
effectivity of this said Act, and who were below the
age of 18 years at the time of the commission of
the offense. With more reason, the Act should
apply to this case wherein the conviction by the
lower court is still under review. Hence, it is
necessary to examine which provisions of R.A. No.
9344 shall apply to Sarcia, who was below 18 years
old at the time of the commission of the offense.
Sec. 38 of R.A. No. 9344 provides for the
automatic suspension of sentence of a child in
conflict with the law, even if he/she is already
18 years of age or more at the time he/she is
found guilty of the offense charged.
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The above-quoted provision makes no
distinction as to the nature of the offense
committed by the child in conflict with the law,
unlike P.D. No. 603 and A.M. No. 02-1-18-SC.
The said P.D. and Supreme Court (SC) Rule
provide that the benefit of suspended sentence
would not apply to a child in conflict with the law
if, among others, he/she has been convicted of an
offense punishable by death, reclusion perpetua or life
imprisonment. In construing Sec. 38 of R.A. No.
9344, the Court is guided by the basic principle of
statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A.
No. 9344 does not distinguish between a minor
who has been convicted of a capital offense
and another who has been convicted of a lesser
offense, the Court should also not distinguish
and should apply the automatic suspension of
sentence to a child in conflict with the law who
has been found guilty of a heinous crime.
Nonetheless, while Sec, 38 of R.A. No. 9344
provides that suspension of sentence can still be
applied even if the child in conflict with the law is
already eighteen (18) years of age or more at the
time of the pronouncement of his/her guilt, Sec.
40 of the same law limits the said suspension
of sentence until the said child reaches the
maximum age of 21.
To date, Sarcia is about 31 years of age, and the
judgment of the RTC had been promulgated, even
before the effectivity of R.A. No. 9344. Thus, the
application of Sees. 38 and 40 to the suspension of
sentence is now moot and academic. However,
Sarcia shall be entitled to appropriate
disposition under Sec. 51 of R.A. No. 9344,
which provides for the confinement of
convicted children [in agricultural camp and
other training facilities in lieu of confinement
in a regular penal institution] [end].
People v. Mantalaba, G.R. No. 186227, 20 July
2011
Facts: The police conducted a buy-bust operation
against a suspected shabu seller, 17-year old Allen
Mantalaba. The operation yielded 2 sachets of
shabu from Mantalaba. He was arrested, and two
informations for violation of Secs. 5 & 11 of RA
9165 were filed in the RTC of Butuan City against
Mantalaba.
The RTC convicted Mantalaba for illegal sale and
illegal possession of shabu and sentenced him a
penalty of reclusion perpetua (for the sale) and 6y1d
min to 8y as max of prision mayor (for possession).
The CA affirmed in toto the RTC decision.
Issue: Whether the prosecution failed to prove his
guilt.
Ruling: CA decision AFFIRMED with
MODIFICATION: the penalty that should be imposed
on Mantalaba’s conviction of violation of Section 5 of RA
9165, is six (6) years and one (1) day of prision mayor, as
minimum, and fourteen (14) years, eight (8) months and
one (1) day of reclusion temporal, as maximum.
Anent the age of Mantalaba when he was arrested,
this Court finds it appropriate to discuss the effect
of his minority in his suspension of sentence.
Mantalaba was seventeen (17) years old when the
buy-bust operation took place or when the said
offense was committed, but was no longer a minor
at the time of the promulgation of the RTC's
Decision.
It must be noted that RA 9344 took effect on May
20, 2006, while the RTC promulgated its decision
on this case on September 14, 2005, when
Mantalaba was no longer a minor. The RTC did
not suspend the sentence in accordance with
Article 192 of The Child and Youth Welfare Code and
Section 32 of the Rule on Juveniles in Conflict with the
Law, the laws that were applicable at the time of
the promulgation of judgment, because the
imposable penalty for violation of Section 5 of RA
9165 is life imprisonment to death.
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It may be argued that Mantalaba should have been
entitled to a suspension of his sentence under
Sections 38 and 68 of RA 9344 which provide for
its retroactive application.
However, this Court has already ruled in People v.
Sarcia that while Section 38 of RA 9344 provides
that suspension of sentence can still be applied
even if the child in conflict with the law is already
eighteen (18) years of age or more at the time of
the pronouncement of his/her guilt, Section 40 of
the same law limits the said suspension of sentence
until the child reaches the maximum age of 21.
Hence, Mantalaba, who is now beyond the age
of twenty-one (21) years can no longer avail of
the provisions of Sections 38 and 40 of RA 9344
as to his suspension of sentence, because such
is already moot and academic. It is highly noted
that this would not have happened if the CA, when
this case was under its jurisdiction, suspended the
sentence of Mantalaba. The records show that the
appellant filed his notice of appeal at the age of 19
(2005), hence, when RA 9344 became effective in
2006, Mantalaba was 20 years old, and the case
having been elevated to the CA, the latter should
have suspended the sentence of Mantalaba because
he was already entitled to the provisions of Section
38 of the same law, which now allows the
suspension of sentence of minors regardless of the
penalty imposed as opposed to the provisions of
Article 192 of P.D. 603.
Nevertheless, he shall be entitled to appropriate
disposition under Section 51 of RA No. 9344
[end].
WHAT IS AN ACT OF DISCERNMENT?
In the case of Madali vs People, there is an act of
discernment when the minor knows the
consequences and circumstances of his act.
Discernment is that mental capacity of a minor to
fully appreciate the consequences of his unlawful
act. Such capacity may be known and should be
determined by taking into consideration all the
facts and circumstances.
In this case, the accused who was 16 years old at
the time of the commission of the crime, warned
the witness not to reveal their hideous act,
otherwise, he (accused) and his co-accused would
kill him. Therefore, he knew that killing the victim
was a condemnable act and should be kept in
secrecy. He fully appreciated the consequences
for his unlawful act.
Madali & Madali v. People, G.R. No. 180380,
4 August 2009
Facts: Petitioners Raymund and Rodel Madali and
Bernardino Maestro were charged with murder in
the RTC of Romblon for the death of a 15-yr old
boy, AAA.
On the evening of 13 April 1999, AAA, along with
his cousin Jovencio, Raymund (14 yrs old), Rodel
(16 yrs old), Bernardino went atop the reservoir
near beside a high school. Bernardino blindfolded
AAA and blurted out once blurted out, "Join the
rugby boys." AAA replied, "That's enough."
Bernardino then struck AAA thrice with a fresh
and hard coconut frond. AAA lost his balance and
was made to stand up by Raymund, Rodel and
Bernardino. Raymund took his turn clobbering
AAA at the back of his thighs with the same
coconut frond. AAA wobbled. Before he could
recover, he received punches to his head and body
from Rodel, who was wearing brass knuckles. The
punishments proved too much, as AAA lost
consciousness.
Not satisfied, Raymund placed his handkerchief
around the neck of AAA, with its ends tied to a
dog chain. With the contraption, the three
malefactors pulled the body up a tree. Stunned at
the sight of his cousin being ill-treated, Jovencio
could only muster a faint voice saying "Enough"
every single-time AAA received the painful blows.
Bernardino, who seemed to suggest finishing off
the victim, remarked, "Since we're all here, let's get on
with it." Before leaving the scene, the three
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assailants warned Jovencio not to reveal the
incident to anyone, or he would be next.
The RTC found the three guilty of homicide,
applying the privileged mitigating circumstance of
minority in their favor, and sentenced them to
suffer indeterminate sentence of four (4) years, two
(2) months and one (1) day to six (6) years.
Bernardino applied for probation while the
Madalis appealed to the CA.
The CA affirmed the conviction. However, it
applied RA 9344 and dismissed Raymund’s case.
Rodel was sentenced to 6m1d of prision correctional
to 8y1d of prision mayor, but the imposition of the
penalty was suspended pursuant to RA 9344.
Issue: Whether the testimony of Jovencio was
credible to sustain a judgment of conviction.
Ruling: Appeal DENIED.
As to the criminal liability, Raymond is exempt. As
correctly ruled by the Court of Appeals, Raymund,
who was only 14 years of age at the time he
committed the crime, should be exempt from
criminal liability and should be released to the
custody of his parents or guardian pursuant to
Sections 6 and 20 of Republic Act No. 9344.
Although the crime was committed on 13 April
1999 and Republic Act No. 9344 took effect only
on 20 May 2006, the said law should be given
retroactive effect in favor of Raymund who was
not shown to be a habitual criminal. This is based
on Article 22 of the Revised Penal Code.
While Raymund is exempt from criminal liability,
his civil liability is not extinguished pursuant to the
second paragraph of Section 6, Republic Act No.
9344.
As to Rodel's situation, it must be borne in mind
that he was 16 years old at the time of the
commission of the crime. A determination of
whether he acted with or without discernment is
necessary pursuant to Section 6 of Republic Act
No. 9344.
Discernment is that mental capacity of a minor
to fully appreciate the consequences of his
unlawful act. Such capacity may be known and
should be determined by taking into
consideration all the facts and circumstances
afforded by the records in each case.
The Court of Appeals could not have been more
accurate when it opined that Rodel acted with
discernment. Rodel, together with his cohorts,
warned Jovencio not to reveal their hideous act to
anyone; otherwise, they would kill him. Rodel
knew, therefore, that killing AAA was a
condemnable act and should be kept in secrecy. He
fully appreciated the consequences of his unlawful
act.
The penalty for homicide under Article 249 of the
Revised Penal Code is reclusion temporal. Pursuant to
Article 68, the maximum penalty should be within
prision mayor, which is a degree lower than reclusion
temporal. Absent any aggravating or mitigating
circumstance, the maximum penalty should be in
the medium period of prision mayor or 8 years and 1
day to 10 years. Applying the Indeterminate
Sentence Law, the minimum should be anywhere
within the penalty next lower in degree, that is,
prision correccional. Therefore, the penalty imposed
by the Court of Appeals, which is 6 months and
one day of prision correccional to 8 years and one day
of prision mayor, is in order. However, the
sentence to be imposed against Rodel should
be suspended pursuant to Section 38 of
Republic Act No. 9344 [end].
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4. Accident
Elements (People v. Dela Cruz):
1. A person is performing a lawful act,
2. He was performing the lawful act with
due care,
3. He causes injury to another by mere
accident,
4. The injury is without fault or intent on
the part of the offender
Note that although exempting, as a rule, there is
no criminal liability but there is civil liability.
However, paragraph 4 (accident) is an exception.
There are no criminal liability and civil liability.
Accident is akin to justifying circumstance
because the offender was performing a lawful act
with due care.
People v. Dela Cruz, G.R. No. 187683, 11
February 2010
Facts: Victoriano Dela Cruz was charged with
parricide in an information filed in the RTC of
Malolos, for the killing of his wife Anna Liza.
Victoriano was seen punching and kicking Anna
Liza in front of their house. He then dragged her
inside the house by pulling her hair. The spouses
were heard shouting inside. Suddenly, Victoriano
and Anna and their daughter came out of the
house, with Victoriano’s arms around her, and
with blood spurting out of Anna’s mouth. Anna
died due to hemorrhagic shock as a result of a stab
wound.
Victoriano claimed that the incident was an
accident. He came home drunk, causing Anna to
nag him. He asked her to go inside the house but
she refused, so he slapped Anna and dragged her
inside the house. Due to her continuous nagging,
Victoriano pushed her aside so he can go out of
the house. However, she fell in a jalousie window,
breaking it in the process. Her back was punctured
by a piece of broken glass.
The RTC convicted him of parricide, and the CA
affirmed the RTC.
Issue: Whether the death of Anna was accidental.
Ruling: Appeal DENIED.
Even if, for the sake of argument, we consider
Victoriano's claim that the injury sustained by his
wife was caused by an accident, without fault or
intention of causing it, it is clear that Victoriano
was not performing a lawful act at the time of the
incident. Before an accused may be exempted from
criminal liability by the invocation of Article 12
(paragraph 4) of the RPC, the following elements
must concur:
1. a person is performing a lawful act
2. with due care, and
3. he causes an injury to another by mere accident
and
4. without any fault or intention of causing it.
For an accident to become an exempting
circumstance, the act that causes the injury has to
be lawful. Victoriano's act of physically maltreating
his spouse is definitely not a lawful act. To say
otherwise would be a travesty -- a gross affront to
our existing laws on violence against women [end].
Situation:
A is a prisoner. He was about to be investigated
and was escorted to the investigation room.
Before reaching the investigating room, A
grabbed the service pistol of the officer who was
accompanying him to the investigating room. The
police tried to get back his pistol, and in the
course of the fight, the pistol was fired
accidentally and A was hit. Thereafter, A died. The
police officer was prosecuted for homicide.
Let's go by the elements:
1st: a person is performing a lawful act
The police officer was trying to get back his
property, and that is his pistol.
2nd performing a lawful act with due care.
He caused an injury by accident. He was
performing an act with due care, and there's no
other way to get back the pistol.
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3rd: he causes an injury through accident There
was no intention on his part to kill A.
What if a police officer saw two men fighting on a
street. They were hitting each other. The police
tried to pacify the two men, but they won’t stop.
So what the police officer did was that he fired
shots to pacify the men. However, one of the stray
bullets landed on the child. Unfortunately the
child died. The police officer was prosecuted for
homicide. As a defense, the police officer invoked
accident
Let's go by the elements:
1st: a person is performing a lawful act
The police officer is performing a lawful act. The
two men are fighting on the street
2nd: performing act with due care
The second element is not present. Considering
that it was a community, he knew that a stray
bullet would have landed on any person. He
should not have fired shots. The police officer is
liable for reckless imprudence resulting to
homicide, a culpable felony.
Ex. X went to the forest. In the said forest, hunting
birds is allowed. He was going to hunt birds in the
forest. He forgot his rifle so he passed by a nipa
hut to borrow a rifle. He was given an armalite. He
went back to the forest and in the middle of the
forest, he saw birds so he pulled out the said
armalite and fired at the birds. But a bullet hit a
stone and the stone flew hitting Y, one of those
manning the forest. Y died. X was arrested and
prosecuted for reckless imprudence resulting to
homicide. X said he cannot be held liable because
it was merely an accident. Will the EC of accident
lie in his favor?
No, there was no accident and he should be held
liable for reckless imprudence resulting to
homicide. The first element, he was performing a
lawful act. Hunting was allowed and he went there
precisely to hunt birds. Second, he must be
performing a lawful act with due care. This
element is absent because in hunting birds, even if
allowed, you do not use armalite to hunt birds.
Even if a person is performing a lawful act, if he
does not do so with due care, he would be held
criminally liable for a culpable felony (negligence
on the part of accused).
Ex. X tried to hack Y. Y evaded the blow. When
X tried to hack Y again, they grappled for the
possession of the said bolo. Y with all his might
tried to obtain possession of the bolo and he did.
However, the tip of the bolo hit C, who was at the
back of Y. C unknown to Y was at the back. C
obtained a fatal wound but survived. So Y was
prosecuted for frustrated homicide. He said it was
purely an accident. Will accident as an EC lie in
favor of Y?
Y was performing a lawful act, he was trying to
defend himself so he was trying to get the bolo
from X who was trying to hack him. Was he
performing it with due care? There is no other way
to get that bolo but to wrestle for its possession.
He was performing it with due care. The injury was
caused by accident. He did not know that C was
passing by. There was no intent or fault on the part
of Y so he is civilly and criminally liable.
5th-Irresistible Force & 6th-Uncontrollable
Fear
The basis of both would be lack of freedom of
action. There must be totally no freedom of
choice. If although there is uncontrollable fear or
irresistible force, if he still has a choice, these EC
will not lie.
5. Irresistible force
Elements of irresistible force:
1. Compulsion is by means of physical
force,
2. Physical force must be irresistible,
3. Physical force must come from a third
person
In irresistible force, the offender must be reduced
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as a mere instrument; that he is not acting in his
will. Therefore, if he is acting against his will,
voluntariness is absent.
6. Uncontrollable fear
Elements of uncontrollable fear:
1. Existence of an uncontrollable fear,
2. Fear must be real and imminent,
3. Fear of an injury is greater than or
equal to that committed.
It is necessary by the means employed by the
third person would cause a person to suffer
uncontrollable fear. Again, he is reduced as a
mere instrument such that he acted against his
will. It is necessary that such fear must be of
imminence that an ordinary man cannot stand.
When there is an existence of uncontrollable
force or fear there is lack of freedom of action—
an element of voluntariness. Therefore, the
person totally has no free will.
Even if there was force employed but the person
has a choice to do the act or not, this exempting
provision will not lie.
Five robbers entered a bank and they told the
employees to lie on the floor. One of the bank
robbers was guarding the employees. Then a robber
took hold of an employee and placed him before the
bank manager. He threated the general manager that
he will shoot the employee if he does not open the
vault. Only the manager knew the combination of
the said vault. The manager did not believe so he did
not open the vault. A who was true to his word shot
the employee who immediately died. He then
pointed the gun to the manager and said that if he
did not open the vault, the next bullet would be on
his head. Afraid, the manger opened the said vault
and the robbers were able to take all the money. The
robbers escaped but were later apprehended. The
manager was arrested and charged as a principal by
indispensable cooperation. Manager however said
that he acted based on uncontrollable fear and
irresistible force. Will he be exempted? Was there a
physical force employed on him? Was the physical
force irresistible and did it come from a third
person?
The said physical force was irresistible that he would
be killed is irresistible. He knew that the employee
was shot and he too can be shot. And it comes from
a third person
Likewise, there was uncontrollable fear. All the
elements were present. The bank robber already shot
the employee and he too could be shot. The fear is
real and imminent and it is not in the future, it is in
the present. It is about to happen. And the fear for
his life is greater than all the money in that vault.
Therefore, he is exempt.
Another situation:
A farmer and his carabao was on his way home.
On his way home, he heard gun shots, so he went
to the place where he heard the gun shots. He hid
behind a tree and saw two men shooting X. X way
already lying on the ground. The farmer was so
shocked and afraid that he tried to leave the place.
However, when he was about to leave, he stepped
on the dried leaves and caused a noise. The two
men saw him. One of the men pointed the gun at
the farmer and told him to come near them.
Afraid for his life, the farmer obeyed. The men,
pointing the gun at the farmer told him to bury X
lying on the ground. The farmer said, "No, I don't
want to." "If you will not bury X, we will shoot
you", said one of the men. The farmer was so
afraid and so he dug the ground and buried X. Is
the farmer criminally liable together with the two
men?
Let's go by the elements
1st Existence of an uncontrollable fear
There was an uncontrollable fear. The farmer saw
that the two men shot X. If the two men can shoot
X, they can also shoot him. Therefore, there was
an uncontrollable fear
2nd: Fear must be real and imminent It was
present. And the fear was present.
3rd Fear of an injury is greater than or equal to
that committed It was also present; his fear for his
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life satisfies this element. His life is more
important.
Therefore all the elements are present, he is not
liable
SAME PROBLEM. "If you will not bury X, we will
shoot and kill your carabao". The farmer was so
afraid. His carabao was his only means of living.
And so, he buried X. Is he criminally liable
together with the two men?
1st Existence of an uncontrollable fear
There was an uncontrollable fear, it is real and
imminent. The farmer saw that the two men shot
X. If the two men can shoot X, they can also shoot
the carabao. Therefore, there was an
uncontrollable fear
2nd: Fear must be real and imminent
It was present. Fear was present in this case, as
the men will shoot his carabao, his only means of
living.
3rd Fear of an injury is greater than or equal to
that committed The third element is wanting. The
death of the carabao is not equal to or greater
than the life of the human.
What if in the same problem, the two men told the
farmer that if the farmer will not bury X, they will
go to his house, rape his wife, thereafter kill her
and his children and burn his house. His family is
the most important people in his life. Therefore,
he was constrained to bury X. is he criminally
liable?
1st Existence of an uncontrollable fear
Yes, it is present. Imagine, his wife would be
raped, his children would be killed and his house
would be burned. Poor farmer.
2nd: Fear must be real and imminent
The 2nd element is not present. The fear is not
present. It is in the future, speculative. Imagine,
the two men would still have to go to the house of
the farmer and look for his wife and children. By
that time, the farmer had already gone to his
house and warned his family. He could also have
reported the killing of X. So his fear is not real
imminent. Imaginative not present.
This happened in the case of Vicky Ty. She was
accused of issuing bouncing checks. Vicky Ty's
defense was that she feared that her ailing mother
who was confined in the hospital would commit
suicide because of the hospital's ill treatment. So
she was compelled to issue unfunded checks for
her mother to be discharged. In this case, yes
there is an uncontrollable fear. However, her fear
was not real and imminent. It is mere imaginative,
speculative. It is not now, or not present.
Ty v. People, G.R. No. 149275, 27 September
2004
Facts: Seven informations for violation of BP 22
were filed against petitioner Vicky Ty before the
RTC of Manila. The prosecution alleged that the
mother and sister of Ty were patients of the Manila
Doctor’s Hospital. Ty executed a promissory note
secured by 7 postdated checks payable to the
hospital. They were all dishonored due to
insufficiency of funds, prompting the Hospital to
send demand letters to Ty but the letters went
unheeded.
Ty claimed that she issued the checks because of
an uncontrollable fear of a greater injury. She was
forced to do so to obtain the release of her mother
whom the hospital inhumanely and harshly treated
and would not discharge unless the hospital bills
are paid. The hospital deprived her mother of
room facilities, subjected the latter to
inconveniences, and suspended medical treatment.
The “debasing treatment” was so severe that her
mother contemplated suicide if she would not be
discharged from the hospital.
The RTC convicted Ty as charged, giving full
credence to the prosecution evidence and
disregarded Ty’s defense. On appeal, Ty reiterated
that she acted under the impulse of an
uncontrollable fear, and claimed the absence of
valuable consideration for the issuance of the
checks, and that the hospital had knowledge that
her bank account lacked funds, but the CA
rejected all her defenses
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Issue: Whether Ty was acting under the impulse
of an incontrollable fear of a greater injury when
she issued the 7 checks
Ruling: Petition DENIED.
The Court finds the petition to be without merit
and accordingly sustain Ty’s conviction.
The only question of law raised—whether the
defense of uncontrollable fear is tenable to warrant
her exemption from criminal liability—has to be
resolved in the negative. For this exempting
circumstance to be invoked successfully, the
following requisites must concur:
1) existence of an uncontrollable fear;
2) the fear must be real and imminent; and
3) the fear of an injury is greater than or at least
equal to that committed.
It must appear that the threat that caused the
uncontrollable fear is of such gravity and
imminence that the ordinary man would have
succumbed to it. It should be based on a real,
imminent or reasonable fear for one’s life or
limb. A mere threat of a future injury is not
enough. It should not be speculative, fanciful, or
remote. A person invoking uncontrollable fear
must show therefore that the compulsion was such
that it reduced him to a mere instrument acting not
only without will but against his will as well. It must
be of such character as to leave no opportunity to
the accused for escape.
In this case, far from it, the fear, if any, harbored
by Ty was not real and imminent. Ty claims that
she was compelled to issue the checks—a
condition the hospital allegedly demanded of her
before her mother could be discharged—for fear
that her mother’s health might deteriorate further
due to the inhumane treatment of the hospital or
worse, her mother might commit suicide. This is
speculative fear; it is not the uncontrollable fear
contemplated by law.
To begin with, there was no showing that the
mother’s illness was so life threatening such that
her continued stay in the hospital suffering all its
alleged unethical treatment would induce a well-
grounded apprehension of her death. Secondly, it
is not the law’s intent to say that any fear exempts
one from criminal liability much less Ty’s flimsy
fear that her mother might commit suicide. In
other words, the fear she invokes was not
impending or insuperable as to deprive her of all
volition and to make her a mere instrument
without will, moved exclusively by the hospital’s
threats or demands.
Ty has also failed to convince the Court that she
was left with no choice but to commit a crime. She
did not take advantage of the many opportunities
available to her to avoid committing one. By her
very own words, she admitted that the collateral or
security the hospital required prior to the discharge
of her mother may be in the form of postdated
checks or jewelry. And if indeed she was coerced
to open an account with the bank and issue the
checks, she had all the opportunity to leave the
scene to avoid involvement.
Moreover, Ty had sufficient knowledge that the
issuance of checks without funds may result in a
violation of B.P. 22. She even testified that her
counsel advised her not to open a current account
nor issue postdated checks “because the moment
I will not have funds it will be a big problem.”
Besides, apart from Ty’s bare assertion, the record
is bereft of any evidence to corroborate and
bolster her claim that she was compelled or
coerced to cooperate with and give in to the
hospital’s demands [end].
How about state of necessity?
Let us go to the elements:
That the evil sought to be avoided actually exists
Is the threat of the mother actually exist? No,
because the threat is in the future. Therefore
state of necessity is not present. The Supreme
Court ruled that she was not in state of necessity.
Because she has several jewelries. She could have
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sold the jewelries to pay for the hospital expenses
7. Any person who fails to perform an act
required by law, when prevented by some
lawful or insuperable2 cause.
Elements of Art. 12, Par. 7:
1. An act is required by law to be done,
2. A person fails to perform such act,
3. The failure to perform such act was
due to some lawful or insuperable
cause.
The law requires the person to require a lawful
act, but was prevented because of an insuperable
cause. This is based on omission. Here the
offender is required by law to perform an act but
was prevented by some lawful insuperable cause.
Here, there is both no criminal and civil liability.
Note that it is one of the instances in exempting
circumstances that the actor is exempt from both
criminal and civil liability. It is akin to a justifying
circumstance because what prevented the offender
from performing a lawful act is a lawful cause.
For example, there is a war in which the
Philippines is involved. A, B, and C conspired to
commit treason against the government. A, one of
the conspirators went to the priest and confided
to the priest that there was conspiracy between B
and C to commit treason against the government.
Despite knowledge on the conspiracy to commit
treason, the priest did not immediately divulge it
to the police.
Under Art 116, the priest is criminally liable for
misprision of treason, for not divulging the
conspiracy to commit treason. However, the
priest failed to perform such act due to a lawful
cause. Under your rules on evidence, a confession
made to a priest is considered as a privileged
communication. Therefore the priest does not
incur any criminal liability.
2insuperable: incapable of being surmounted, overcome,
passed over, or solved
Article 13. Mitigating circumstances. - The
following are mitigating circumstances;
1. Those mentioned in the preceding chapter,
when all the requisites necessary to justify or
to exempt from criminal liability in the
respective cases are not attendant.
2. That the offender is under eighteen year of
age or over seventy years. In the case of the
minor, he shall be proceeded against in
accordance with the provisions of Art. 80.
3. That the offender had no intention to commit
so grave a wrong as that committed.
4. That sufficient provocation or threat on the
part of the offended party immediately
preceded the act.
5. That the act was committed in the immediate
vindication of a grave offense to the one
committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the
same degrees.
6. That of having acted upon an impulse so
powerful as naturally to have produced
passion or obfuscation.
7. That the offender had voluntarily
surrendered himself to a person in authority
or his agents, or that he had voluntarily
confessed his guilt before the court prior to
the presentation of the evidence for the
prosecution;
8. That the offender is deaf and dumb, blind or
otherwise suffering some physical defect
which thus restricts his means of action,
defense, or communications with his fellow
beings.
9. Such illness of the offender as would diminish
the exercise of the will-power of the offender
without however depriving him of the
consciousness of his acts.
10. And, finally, any other circumstances of a
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similar nature and analogous to those above
mentioned.
MITIGATING CIRCUMSTANCES (MC)
They are circumstances which if present or
attendant in the commission of a felony would
reduce the imposable penalty because it
shows lesser perversity or criminality of the
offender.
There is a lesser criminality on the part of the
offender because the offender acted with the
diminution of any of the elements of
voluntariness. There is a diminution on criminal
intent, freedom of action or intelligence.
In exempting, there is a total absence of any of
these elements of voluntariness. That's why the
offender is exempted from criminal liability.
In mitigating circumstances, there is no absence
of voluntariness but there is a diminution in
voluntariness because of diminution in any of
the elements of voluntariness - criminal intent,
freedom of action or intelligence.
Two kinds of mitigating circumstances:
Ordinary MC Privileged MC
May be offset by Can never be offset by
generic aggravating any aggravating
circumstances circumstance
If not offset, lowers Reduces the
the imposable penalty imposable penalty by
to its minimum one or two degrees
period, [provided the depending on the
penalty is divisible] rules on Arts. 68 & 69
NOTE: If in the computation of penalties there are
aggravating circumstances, mitigating
circumstances, and if there is a PMC, that
presence of PMC takes preference over all other
things. Before you can even the appropriate
penalty, you still have to first consider the
presence of the PMC. That is how important that
is why it's privileged.
Mariano v. People, G.R. No. 178145, 7 July 2014
Facts: Petitioner Reynaldo Mariano was charged
with frustrated homicide in the RTC of Bulacan.
He hit and bumped the victim De Leon when
Mariano tried to overtake De Leon’s owner-type
jeep. After the incident Mariano dropped off his
passengers and turned himself over to the police.
The RTC convicted him as charged, but the CA
held that Mariano committed reckless
imprudence resulting in serious physical injuries.
Issue: Whether the MC of voluntary surrender
should have been appreciated in Mariano’s favor.
Ruling: Petition DENIED.
Contrary to the Mariano’s insistence, the
mitigating circumstance of voluntary surrender
cannot be appreciated in his favor. Paragraph
5 of Article 365, Revised Penal Code, expressly
states that in the imposition of the penalties,
the courts shall exercise their sound discretion,
without regard to the rules prescribed in
Article 64 of the Revised Penal Code. “The
rationale of the law,” according to People v.
Medroso, Jr. can be found in the fact that “in
quasi-offenses penalized under Article 365, the
carelessness, imprudence or negligence which
characterizes the wrongful act may vary from
one situation to another, in nature, extent, and
resulting consequences, and in order that there
may be a fair and just application of the
penalty, the courts must have ample discretion
in its imposition, without being bound by what
We may call the mathematical formula provided
for in Article 64 of the Revised Penal Code. On
the basis of this particular provision, the trial
court was not bound to apply paragraph 5 of
Article 64 in the instant case even if appellant
had two mitigating circumstances in his favor
with no aggravating circumstance to offset
them” [end].
1. Those mentioned in the preceding chapter,
when all the requisites necessary to justify or to
exempt from criminal liability in the respective
cases are not attendant.
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Incomplete justifying or exempting
circumstance.
This is the case when all the elements necessary
to justify the act or to exempt the criminal
liability in their respective cases are not
attendant.
How would you know if an incomplete JC or EC
should be treated as an OMC or as a PMC?
1. If majority of the elements necessary to
justify the act or to exempt from liability are
present, then it's treated as PMC.
2. If less than the majority is present, then it is
an OMC which can be offset by a generic AC.
3. If the elements necessary to justify the act or
to exempt from criminal liability is only 2, the
presence of 1 element is already a PMC.
In case of inc. self-defense, inc. defense of a
relative, inc. defense of a stranger, there must
always be unlawful aggression in order for the mc
to mitigate. If only the element of unlawful
aggression is present, the inc. self-defense should
be treated as an OMC. If aside from unlawful
aggression, another element but not all are
present, it is to be treated as a PMC. If all elements
are present, then it is a JC.
Ex. A was running in a subdivision with a bolo, he
was hacking all those he passed by. So the
residents called for police assistance. The police
arrived headed by police officer X. They called on
A to put down his weapon but A instead of laying
down his weapon, advanced towards the police
with the bolo in his hands in a hacking position in
the act of hacking the police officers. So X
immediately fired at A. He hit the hands and legs
of A. non-fatal wounds. A slam on the ground face
facing the ground. At that particular moment, X
went to A, got his bolo and then fired shot at the
head of A and A died. X was prosecuted for
murder, police officer invoked 2 JC. We have self-
defense and fulfillment of duty. Is there self-
defense or at least inc. self-defense?
There's no self-defense because at the time X shot
the head of A, A was already lying on the ground.
Whatever inceptive unlawful aggression he has
commenced, it has ceased to exist from the time
the fatal blow was inflicted on him. Therefore,
there was no unlawful aggression. Since unlawful
aggression is the element that is wanting. There's
no self-defense, neither is there inc. self-defense.
Second, is there fulfillment of duty or at least inc.
fulfillment of duty?
There are only 2 elements in fulfillment of duty,
1st element - that the accused acted in the due
performance of his duty or in lawful exercise of
his proper office. It is present right because the
police officer went there because the residents
asked for police assistance. They went there to
maintain peace and order. The 1st element is
present.
The 2nd element - that the injury caused is an
unavoidable consequence of the due performance
of a duty. The 2nd element is absent. The act of X
in shooting the head of A is not a necessary
consequence of the due performance of his duty.
Therefore, based on the rule that if there are only
2 elements necessary to justify the act and the
presence of 1 is already considered as the
majority and it is considered as a PMC. Therefore,
in this case, there is an inc. fulfillment of duty
which is a PMC which may lower the imposable
penalty by degrees not only by period.
2. That the offender is under eighteen year of age
or over seventy years. In the case of the minor,
he shall be proceeded against in accordance
with the provisions of Art. 80. [NOTE: see Sec.
6, RA 9344. It is now “over 15 but below 18”]
There are two MCs here:
1. Minority
2. Seniority
Remember that if minority is not exempting,
it is always and always a PMC. Never an OMC!
So if the offender is over 15 but below 18, and he
acted with discernment, it is not exempting but it
is a PMC.
Seniority or being over 70 years of age is a
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mere OMC.
[Prosecutor Garcia: In your book there are
instances wherein seniority [was] considered as
a PMC, when the crime committed by the person
over 70y/o is punishable by death, death shall not
be imposed on him. Or when he has already been
convicted it shall be computed to reclusion
perpetua. These provisions of the RPC are no
longer applicable at the moment because we have
RA 9346 which prohibits the imposition of death
penalty on whoever be the offender. Then
seniority, at the moment is only an OMC. I am
emphasizing 'at the moment' because at the
moment the reign of P.Noy ends, the new
president may bring back death penalty. Then
there will now be again a circumstance where
seniority will be a PMC. But at the moment, we
have no death penalty that may be imposed.]
Legal effects of the various age brackets of the
offender with respect to his criminal liability
(GN 2016)
Age Effect on criminal liability
Bracket
15 and Exempting circumstance
under
Over 15, Exempting circumstance if he acted
under 18 without discernment;
[PMC] if he acted with discernment
18 to 70 Full criminal responsibility
Over 70 [OMC as there is] no imposition of
death penalty; [if death sentence
was already imposed, the same is
suspended and commuted].
3. That the offender had no intention to commit
so grave a wrong as that committed.
Praeter Intentionem (See Art. 4).
Elements of Praeter Intentionem:
1. The offender committed a felony;
2. A notable or notorious disparity between
the means employed by offender and the
resulting felony.
For praeter intentionem to lie as an MC, it is
necessary that there must be a notable or
notorious disparity between the means employed
and the resulting felony. That is, out of the means
employed by the offender, no one could have
anticipated that the resulting felony would come.
Ex. A and B were fighting, A boxed B, B boxed A, A
retaliated and boxed B again. When A boxed B, B's
head hit a cemented wall and so he suffered
cerebral hemorrhage and thereafter caused his
death. Is A criminally liable for the death of B?
Yes, because when he boxed B, he was committing
a felonious act. Therefore he is criminally liable
for the resulting felony although it be different
from which he intended.
But can he be given the benefit of praeter
intentionem that he has no intention to commit so
grave a wrong as that committed?
>Yes, because there was a notable disparity
between the means employed by the offender and
the resulting felony. Who could have anticipated
that by the mere act of boxing death would result.
Therefore, he should be given the benefit of
prater intentionem.
What if in the same problem A and B were fighting
by means of fist, the suddenly, A who was losing
pulled out a balisong or a fan knife and stabbed B
on the neck, a fatal wound. B died. A was
prosecuted for homicide. He said he had no
intention to commit a wrong so grave as that
committed, no intention to kill B. Will his defense
lie? Will the mc lie in his favor?
>No, because there was no notable disparity in
the between means employed - stabbing on the
neck using a balisong or fan knife resulting to
death. In fact, the act of the victim of stabbing
would produce, and did produce the death of the
victim. Therefore, praeter intentionem would not
lie in favor of the accused.
Urbano v. People, G.R. No. 182750, 20 January
2009
Ruling: The mitigating circumstance that
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Urbano had no intention to commit so grave
a wrong as that committed should also be
appreciated in his favor. While intent to kill
may be presumed from the fact of the death
of the victim, this mitigating factor may still
be considered when attendant facts and
circumstances so warrant, as in the instant case.
Consider: Urbano tried to avoid the fight,
being very much smaller than Tomelden. He
tried to parry the blows of Tomelden, albeit
he was able, during the scuffle, to connect a
lucky punch that ended the fight. And lest it
be overlooked, petitioner helped carry his
unconscious co-worker to the office of the
LIWAD's general manager. Surely, such gesture
cannot reasonably be expected from, and would
be unbecoming of, one intending to commit
so grave a wrong as killing the victim. A bare-
knuckle fight as a means to parry the challenge
issued by Tomelden was commensurate to the
potential violence petitioner was facing. It was
just unfortunate that Tomelden died from that
lucky punch, an eventuality that could have
possibly been averted had he had the financial
means to get the proper medical attention.
Thus, it is clear that the mitigating circumstance
of "no intention to commit so grave a wrong
as that committed" must also be appreciated in
favor of petitioner while finding him guilty of
homicide. That Urbano landed a lucky punch
at Tomelden's face while their co-workers were
trying to separate them is a compelling
indicium that he never intended so grave a
wrong as to kill the victim [end].
4. That sufficient provocation or threat on the
part of the offended party immediately preceded
the act.
Elements of Art. 13, Par. 4:
1. The provocation must be sufficient;
a. Must be adequate to stir a person to
commit a wrongful act;
b. It must be proportionate to the
gravity of the crime.
2. The provocation must originate from the
offended party;
3. The provocation must be immediate from
the commission of the criminal act by the
person who was provoked.
PROVOCATION is any unjust or immoral act or
conduct on the part of the offended party which
is capable of inciting, exciting or irritating
another.
The 3rd element requires that the provocation
must be immediate to the commission of the
crime.
The word immediate here does not allow a
lapse of time between the provocation and the
commission of the crime. Right after the
provocation given by the offended party, the
offender must have performed the said criminal
act.
Provocation must be from the offended party
NOT a third person.
Ex. There was this long line of evacuees, victims
of [typhoon] Pablo who are to be given reliefs. A
was 5th on the line, suddenly, X inserted himself in
front of A. This angered A, A told X to place
himself at the end of the line but X didn't want
because he was so hungry. This angered A, and so
A pulled out his bolo and hacked X at the back. A
was prosecuted for homicide, is the mc of
sufficient provocation on the part of the offended
party justified?
Yes, there was on the part of X. Nakakainis kaya.
Nakapilakatapos may sumingit. Sinong hindi
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maiinis, sinong hindi mae-excite. So the 1st
element is present, it is adequate to stir a person
to commit a wrongful act. However the 2 nd
element is absent - it is not proportionate to the
gravity of the act. The act of killing is not
proportionate to the act of X of placing himself in
front of A in a long line. Therefore, sufficient
provocation as a MC is not present so as to reduce
the imposable penalty.
Urbano v. People
The victim has always been calling and teasing on
the accused Urbano. So there was a confrontation
because whenever the victim was drunk, he
would defame Urbano. So there was a verbal
confrontation and ensued into a fight. In the said
fight, Urbano was losing because he was just a
small man. However, he was able to land one
lucky punch on the face of the victim (parang si
Pacquiao). Because of the said lucky punch, the
said victim was about to fall unconscious on the
ground. However, the other employees were able
to prevent him from falling on the ground.
Nevertheless, he became unconscious and later
on regained consciousness. In and out of the
hospital, later on he died. Is Urbano criminally
liable for the death of the victim?
>Yes, under Art. 4, because he was committing a
felonious act. Therefore he is criminally liable for
the resulting felony although different from that
which he intend.
But there are 2 MCs considered by the court to
reduce the imposable penalty.1st according to the
court, there was sufficient provocation. 2 nd, that
the offender has no intention to commit so grave
a wrong as that committed. Who could have
anticipated that out of one lucky punch, death
would result. There was a total disparity on the
means employed by the offender and the
resulting felony.
How about sufficient provocation, is it present?
>The SC said yes. The provocation was on the part
of the victim. He would always call names and
defame Urbano. Is it sufficient? Yes, because what
Urbano only did was to confront the victim
verbally. That was his first act, later on only did it
ensue to a fight.
Urbano v. People:
Ruling: When the law speaks of provocation
either as a mitigating circumstance or as an
essential element of self-defense, the reference
is to an unjust or improper conduct of the
offended party capable of exciting, inciting, or
irritating anyone; it is not enough that the
provocative act be unreasonable or annoying;
the provocation must be sufficient to excite
one to commit the wrongful act and should
immediately precede the act.
This third requisite of self-defense is present:
1) when no provocation at all was given to
the aggressor;
2) when, even if provocation was given, it was
not sufficient;
3) when even if the provocation was sufficient,
it was not given by the person defending
himself; or
4) when even if a provocation was given by
the person defending himself, it was not
proximate and immediate to the act of
aggression.
In the instant case, Tomelden's insulting
remarks directed at Urbano and uttered
immediately before the fist fight constituted
sufficient provocation. This is not to mention
other irritating statements made by the
deceased while they were having beer in
Bugallon. Urbano was the one provoked and
challenged to a fist fight [end].
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5. That the act was committed in the immediate
vindication of a grave offense to the one
committing the felony (delito), his spouse,
ascendants, or relatives by affinity within the
same degrees.
Elements of immediate vindication of a grave
offense:
1. There be a grave offense to the one
committing the felony, his spouse,
ascendants, descendants, legitimate,
natural, or adopted brothers or sisters, or
relatives by affinity within the same
degree;
2. The said act or grave offense must be the
proximate cause of the commission of the
crime.
This grave offense need not be a punishable act. It
suffices that it be any act unjust act, immoral act
which cause the offender sleepless nights and
move him to vindicate himself.
The 2nd element requires that the commission of
crime was in immediate vindication of the grave
offense. This time the word immediate allows
a lapse of time. Why?
According to the SC [People v. Ignas], there was
an erroneous Spanish translation. Our RPC was
copied from the Spanish Codigo Penal, in there,
the word used there was proximate. Yet when it
was translated in the RPC, the word used was
immediate. SC said wrong translation. It is
sufficient that the said grave offense must be the
proximate cause of the commission of the crime.
Immediate allows the lapse of time, but not too
long a time that would cause the offender to
recover his normal equanimity.
People v. Ignas, G.R. Nos. 140514-15, 30
September 2003
Facts: In February 1996, appellant June Ignas
learned that his wife is having an affair with
Nemesio Lopate. On March 10, 1996, he shot to
death Lopate. Ignas voluntarily admitted to the
police that he shot Lopate. He was charged with
murder aggravated with the use of an unlicensed
firearm in the RTC of La Trinidad, Benguet, and
was found guilty of the same.
Issue: Whether the mitigating circumstances of
the immediate vindication of a grave offense and
passion and obfuscation should be appreciated in
Ignas’s favor.
Ruling: RTC decision MODIFIED, he is guilty
only of homicide.
We agree with the Solicitor General that the
lapse of two (2) weeks between his
discovery of his wife's infidelity and the
killing of her supposed paramour could no
longer be considered proximate. The passage
of a fortnight is more than sufficient time for
appellant to have recovered his composure and
assuaged the unease in his mind. The
established rule is that there can be no
immediate vindication of a grave offense
when the accused had sufficient time to
recover his serenity. Thus, in this case, we
hold that the mitigating circumstance of
immediate vindication of a grave offense
cannot be considered in appellant's favor [end].
6. That of having acted upon an impulse so
powerful as naturally to have produced passion
or obfuscation.
Paragraphs 4 and 5 are related to [this]
paragraph -otherwise known as sudden impulse
of passion and obfuscation.
Elements of sudden impulse of passion and
obfuscation:
1. There be an act both unlawful and
sufficient to produce passion and
obfuscation on the part of the offender;
2. The commission of the criminal act and the
said sudden impulse must not be far
removed from each other by the
considerable length of time during which
the offender might have recovered his
normal equanimity.
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The 1st element requires some unlawful or
unauthorized act done on the said offender and by
reason of this the offender has done an unlawful
act. The acts of the offender arose from lawful
sentiments because an unlawful act was committed
against him.
The 2nd element requires also the
immediateness. It is necessary that it must be
done immediately because the law says the
commission of the act which produced the
passion and obfuscation must not be far removed
from the commission of the crime by a
considerable length of time.
What if A attempted on the virtue of the wife of B,
B learned about this from a neighbor. When B
learned about this, 4 days after, he went to A and
hacked A to death. Is the crime committed, or is
the mc of sudden impulse of passion and
obfuscation and immediate vindication of grave
offense present?
In the case of People v. Resbuscano(?), the SC said
NO because 4 days had already lapsed. According
to the SC, 4 days is already a long time for the said
offender to have recovered from his normal
equanimity.
More so in the case of People v. Ignas, in this case,
from the time of the discovery of the adultery of
the wife, to the time of the killing, 2 weeks had
already lapsed, the SC said such 2 weeks is too
long a time for such offender to have recovered
already his normal equanimity.
Ignas: We likewise find the alleged mitigating
circumstance of passion and obfuscation
inexistent. The rule is that the mitigating
circumstances of vindication of a grave offense
and passion and obfuscation cannot be claimed at
the same time, if they arise from the same facts
or motive. In other words, if appellant attacked
his victim in proximate vindication of a grave
offense, he could no longer claim in the same
breath that passion and obfuscation also
blinded him. Moreover, for passion and
obfuscation to be well founded, the following
requisites must concur: (1) there should be an
act both unlawful and sufficient to produce
such condition of mind; and (2) the act which
produced the obfuscation was not far removed
from the commission of the crime by a
considerable length of time, during which the
perpetrator might recover his moral equanimity
To repeat, the period of two (2) weeks which
spanned the discovery of his wife's extramarital
dalliance and the killing of her lover was
sufficient time for appellant to reflect and cool
off.
In the case of People v. Romera, the SC said par.4 -
sufficient provocation on the part of the offended
party, par.5 - immediate vindication of grave
offense, par.6 - sudden impulse of passion and
obfuscation are related to each other such that in
the commission of the crime, all three present, or
any 2 are present, if they are based on the same
facts and circumstances they should be
appreciated only as 1 MC, not 2 or 3. Why is it
important?
>It is important because in the computation of the
penalties, if you consider them as 3, you will be
wrong in the penalties.
*So again note, if Pars. 4, 5 and 6 are all
present or if any 2 is present and they are all
based on the same facts and circumstances,
they should only be treated as 1 MC.
Bongalon v. People, G.R. No. 169533, 20
March 2013
Although we affirm the factual findings of fact
by the RTC and the CA to the effect that the
petitioner struck Jayson at the back with his
hand and slapped Jayson on the face, we
disagree with their holding that his acts
constituted child abuse within the purview of
the above-quoted provisions. The records did
not establish beyond reasonable doubt that his
laying of hands on Jayson had been intended
to debase the “intrinsic worth and dignity” of
Jayson as a human being, or that he had
thereby intended to humiliate or embarrass
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Jayson. The records showed the laying of hands
on Jayson to have been done at the spur of
the moment and in anger, indicative of his
being then overwhelmed by his fatherly
concern for the personal safety of his own
minor daughters who had just suffered harm
at the hands of Jayson and Roldan. With the
loss of his self-control, he lacked that specific
intent to debase, degrade or demean the
intrinsic worth and dignity of a child as a
human being that was so essential in the crime
of child abuse.
The penalty for slight physical injuries is arresto
menor, which ranges from one day to 30 days
of imprisonment. In imposing the correct
penalty, however, we have to consider the
mitigating circumstance of passion or
obfuscation under Article 13 (6) of the Revised
Penal Code, because the petitioner lost his
reason and self-control, thereby diminishing the
exercise of his will power. Passion or
obfuscation may lawfully arise from causes
existing only in the honest belief of the
accused. It is relevant to mention, too, that in
passion or obfuscation, the offender suffers a
diminution of intelligence and intent. With his
having acted under the belief that Jayson and
Roldan had thrown stones at his two minor
daughters, and that Jayson had burned
Cherrlyn’s hair, the petitioner was entitled to
the mitigating circumstance of passion [end].
Ex. Husband and wife were about to have dinner.
Then someone was calling the name of the
husband outside their house. The wife opened the
door, upon opening, the neighbor who was calling
the name tried to hack the wife. Good enough, the
wife was able to reach and close the door and the
wife was not hacked. The neighbor however with
a use of a bolo continuously hacked the wooden
or the bamboo door and walls of the house. And
so, considering that his house was being
damaged, the husband was forced to go outside to
confront the neighbor. He used the kitchen door.
He called the neighbor and asked what was the
reason why he was hacking. The neighbor instead
of answering tried to hack the husband. They
struggled for the possession of the bolo, and in the
course the husband gained possession of the bolo.
Once in the possession of the bolo, the husband
hacked the neighbor. The neighbor suffered a
fatal wound but was brought to the hospital by
the husband and so he survived. Husband was
prosecuted for frustrated homicide, the husband
as a defense invoked 2 MCs - 1st, there was sudden
impulse of passion and obfuscation, 2nd that there
was sufficient provocation on the part of the
offended party immediately preceded the action.
Is sudden impulse of passion and obfuscation
present? Is sufficient provocation present?
>Yes, they are both present. There is sufficient
provocation because of the act of the neighbor
trying to hack the wife. And his act of
continuously hacking the wooden door and walls
of the house - that is sufficient provocation.
How about sudden impulse of passion and
obfuscation?
>Yes, it is also present. The act of the neighbor
trying to hack the wife and his act of continuously
hacking the wooden door and walls.
Now these 2 MC are based on the same facts and
circumstances. So if the question is 'what are the
MCs present?' or 'is the MC of sudden impulse of
passion and obfuscation present? Is the MC of
sufficient provocation present?'
>Yes, yes.
But if the question is 'what MC would you
consider?' Although both are present, you should
only consider them as 1 MC.
7. That the offender had voluntarily surrendered
himself to a person in authority or his agents,
or that he had voluntarily confessed his guilt
before the court prior to the presentation of the
evidence for the prosecution;
There are 2 separate and distinct MCs here:
1. Voluntary surrender
2. Voluntary plea of guilt
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If both are present, you have to consider always 2
MCs. They have different elements and would
always arise from different set of facts and
circumstances. Therefore, they are always
separate and distinct from each other.
Elements of voluntary surrender (People v.
Ignas):
1. The offender had not actually been
arrested;
2. The offender had surrendered himself to a
person in authority or his agent;
3. The surrender must be voluntary
Surrender is said to be voluntary when it is done
spontaneously and unconditionally either
because he has this feeling of remorse and
wanted to admit his guilt or he wanted to save
the government that much needed time or effort
which will be incurred in looking for him.
Ex. A case was filed against B in the fiscal’s office.
A warrant of arrest was requested, the fiscal
found probable cause. The information filed in
court, the court agreed with the fiscal, a warrant
of arrest was issued. B got a tip from the court
employee that a warrant of arrest was now in
possession of the police officers. And so B upon
learning that there was already an issued warrant
of arrest, immediately went to the police station
and surrendered himself to the authorities. Then
trial against him proceeded, and after trial on the
merits, he was convicted. But the judge did not
consider voluntary surrender in reducing his
imposable penalty. Is the judge correct?
The judge is wrong because voluntary surrender
is present as a MC. Although there is already a
warrant of arrest issued. The police officers have
not yet gone out looking for him. Therefore, any
surrender would still be considered as voluntary
surrender even if there is already a warrant of
arrest against the said offender.
Nizurtado v. Sandiganbayan & People, G.R. No.
107838, 7 December 1984
Facts: Nizurtado, Barangay Captain of Brgy.
Panghulo, Malabon, received a check worth
P10,000 from the Ministry of Human Settlements,
Metro Manila Commission (MMC) and the
Kilusang Kabuhayan and Kaunlaran under their
Livelihood Program for Barangays in Metro
Manila, consisting of P10,000 loans for each
barangay. The check could be encashed only upon
submission of a resolution approved by the
barangay council identifying the livelihood project
in which the loan would be invested. Petitioner
Nizurtado, the Barangay Captain of Brgy.
Panghulo, Malabon, received the P10,000 check
for his barangay’s livelihood program. He
entrusted the check to Romero, the Barangay
Treasurer.
The Barangay Council of Panghulo could not agree
on any livelihood project, thus Nizurtado got back
the check from Romero to return the same to the
MMC. A few days later, Nizurtado asked Romero
to sign an unaccomplished resolution in
mimeograph form, saying that the MMC was
hurrying up the matter and the livelihood project
to be stated in the resolution was that proposed by
Romero-a barangay service center. The
unaccomplished resolution already bore the
signatures of 5 Council members. When Romero
signed, the blank resolution did not bear yet the
signatures of 2 councilmen-including Gomez.
Upon Nizurtado’s request Romero asked Gomez
to sign, and the latter did.
Unknown to Romero and Gomez, the resolution
was later on accomplished, and it stated that the
Council had identified T-Shirt manufacturing as
the livelihood project. The resolution and other
supporting documents for encashment were
submitted by Nizurtado. Nizurtado was able to
encash the check, and he re-lent the cash proceeds
to himself, the members of the Barangay Council,
Barangay Court Secretary and Barangay Secretary.
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Later, Romero and Gomez were informed that
they have not yet made any remittance on account
of their P1,000 loan from the P10,000 barangay
livelihood fund. Since both had not borrowed any
amount of money from the barangay, Romero and
Gomez made inquiries. They learned that the blank
resolution was filled up to make it appear that the
Council met at a certain date and a T-shirt
manufacturing was decided as the livelihood
project. But there was no such meeting, and neither
was Nizurtado authorized by the council to submit
T-shirt manufacturing as the livelihood project.
Romero and Gomez filed a complaint against
Nizurtado in the Tanodbayan, and after
investigation the information against Nizurtado for
the complex crime of malversation of public funds
through falsification of public document was filed
before the Sandiganbayan. Afterwards, Nizurtado
remitted P8,000 to the MMC, and several years
later the remaining P2,000 was remitted by the
acting Barangay Captain. Also, Nizurtado
surrendered to the Sandiganbayan.
The Sandiganbayan convicted Nizurtado as
charged, but appreciated two mitigating
circumstances-voluntary surrender and restitution
of funds-in his favor. The Sandiganbayan imposed
the penalties of imprisonment ranging from
FOUR (4) YEARS, NINE (9) MONTHS, and
ELEVEN (11) DAYS of prision correccional as
minimum to EIGHT (8) YEARS, EIGHT (8)
MONTHS, and ONE (1) DAY of prision mayor as
maximum; perpetual special disqualification; and a
fine of P10,000.00.
ISSUE: Did Nizurtado misappropriate the funds?
HELD.
Yes. Petitioner was able to encash the check on the
basis of a resolution of the Barangay Council,
submitted to the KKK Secretariat, to the effect
that a livelihood project, i.e., "T-shirt
manufacturing," had already been identified by the
council. The money, however, instead of its being
used for the project, was later lent to, along with
petitioner, the members of the Barangay Council.
Undoubtedly, the act constituted
"misappropriation" within the meaning of the law.
Nizurtado was charged with having committed the
crime through the falsification of a public
document punishable under paragraph 2 of Article
171 of the Revised Penal Code. In falsification
under the above-quoted paragraph, the document
need not be an authentic official paper since its
simulation, in fact, is the essence of falsification.
So, also, the signatures appearing thereon need not
necessarily be forged. In concluding that the
Barangay Council resolution was a falsified
document for which petitioner should be held
responsible, the Sandiganbayan gave credence to
the testimonies of Barangay Councilman Gomez
and Barangay Treasurer Romero. The established
rule is that unless the findings of fact of the
Sandiganbayan are bereft of substantial evidence to
support it, those findings are binding on this court.
The Sandiganbayan has considered the mitigating
circumstances of voluntary surrender and
restitution in favor of Nizurtado. Deputy Clerk of
Court Luisabel Alfonso Cortez, on 17 January
1989, has certified to the voluntary surrender of the
accused.
Voluntary surrender (Art. 13, par. 7, Revised
Penal Code), therefore, may thus be treated as
a modifying circumstance independent and
apart from restitution of the questioned funds
by petitioner (Art. 13, par. 10, Revised Penal
Code). We are convinced, furthermore, that
petitioner had no intention to commit so grave
a wrong as that committed. (Art. 13, par. 3,
Revised Penal Code), entitling him to three
distinct mitigating circumstances.
Under Article 48 of the Revised Penal Code, when
a single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary
means for committing the other, the penalty for
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the most serious crime shall be imposed, the same
(the penalty) to be applied in the maximum period.
The penalty prescribed for the offense of
malversation of public funds, when the amount
involved exceeds six thousand pesos but does not
exceed twelve thousand pesos, is prision mayor in its
maximum period to reclusion temporal in its
minimum period; in addition, the offender shall be
sentenced to suffer perpetual special
disqualification and to pay a fine equal to the
amount malversed (Art. 217[3], Revised Penal
Code). The penalty of prision mayor and a fine of five
thousand pesos is prescribed for the crime of
falsification under Article 171 of the Revised Penal
Code. The former (that imposed for the
malversation), being more severe than the latter
(that imposed for the falsification), is then the
applicable prescribed penalty to be imposed in its
maximum period. The actual attendance of two
separate mitigating circumstances of
voluntary surrender and restitution, also
accused to the penalty next lower in degree.
For purposes of determining that next lower
degree, the full range of the penalty prescribed by
law for the offense, not merely the imposable
penalty because of its complex nature, should, a
priori, be considered. It is our considered view that
the ruling in People vs. Gonzales, 73 Phil. 549, as
opposed to that of People vs. Fulgencio, 92 Phil. 1069,
is the correct rule and it is thus here reiterated. In
fine, the one degree lower than prision mayor
maximum to reclusion temporal minimum is prision
mayor minimum to prision mayor medium (being the
next two periods in the scale of penalties [see Art.
64, par. 5, in relation to Art. 61, par. 5, Revised
Penal Code]) the full range of which is six years and
one day to ten years. This one degree lower penalty
should, conformably with Article 48 of the Code
(the penalty for complex crimes), be imposed in its
maximum period or from eight years, eight months
and one day to ten years. The presence of the
third mitigating circumstance of praeter
intentionem (lack of intention to commit so
grave a wrong as that committed) would result
in imposing a period the court may deem
applicable. Considering, however, that the
penalty has to be imposed in the maximum
period, the only effect of this additional
mitigating circumstance is to impose only the
minimum portion of that maximum period,
that is, from eight years, eight months and one day
to nine years, six months and ten days, from which
range the maximum of the indeterminate sentence
shall be taken.
Under the Indeterminate Sentence Law (which can
apply since the maximum term of imprisonment
would exceed one year), the court is to impose an
indeterminate sentence, the minimum of which
shall be anywhere within the range of the penalty
next lower in degree (i.e., prision correccional in its
medium period to prision correccional in its maximum
period or anywhere from two years, four months
and one day to six years) and the maximum of
which is that which the law prescribes after
considering the attendant modifying
circumstances. In view of the mitigating
circumstances present in this case, the fine of
P10,000.00 may also be reduced (Art. 66, Revised
Penal Code) and, since the principal penalty is
higher than prision correccional, subsidiary
imprisonment would not be warranted (Art. 39,
par. 3, Revised Penal Code).
The conviction by the Sandiganbayan is
affirmed, but the penalty is modified by
imposing on petitioner a reduced
indeterminate sentence of from two years, four
months and one day to eight years, eight
months and one day, perpetual special
disqualification and a fine of P2,000.00 [end].
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Elements of voluntary plea of guilt:
1. That guilt tendered is confessed
spontaneously and unconditionally;
2. The accused confesses guilt in open court
[the competent court that is to try the
case];
3. The confession was made before the
presentation of the evidence for the
prosecution.
In no. 2, for the confession of guilt to be
considered spontaneously, it must be to the crime
charged. If the plea of guilt was based on a plea
bargaining agreement, there is not valid plea of
guilt. It is still plea of guilt but it will not be
considered as a mitigating circumstance.
Ex. A was charged with the crime of frustrated
murder. During the plea bargaining, with the
consent of the judge, the fiscal and the offended
party, he said that he had plead guilty to
attempted murder. And so he pleaded guilty to
attempted murder. The judge rendered judgment
without considering voluntary plea of guilt so as
to reduce his penalty. Is the judge correct?
Yes. For said plea of guilty to be considered
voluntary, it must be done spontaneously. It must
be the original crime charged.
A was charged with the crime of frustrated
homicide. On plea bargaining, with the consent of
the judge, the fiscal and the offended party, he said
that he had plead guilty to a lesser crime of serious
physical injuries. So he was rearraigned and this
time the crime charge was serious physical injuries.
And this time he pleaded guilty.
That is still considered a valid plea of guilt. Upon
his plea of guilt, the judge will render his decision
but it cannot be considered voluntary, because it
was not done spontaneously. Spontaneously, it
must be the original crime charged.
That he confesses guilt in open court that is before
the court tried his case. He cannot plead guilty in
the appellate court.
What if A was charged as a principal in the crime
of robbery. He pleaded guilty with the consent of
the judge, the fiscal and the offended party to the
crime of robbery but merely as an accomplice.
The judge rendered judgment because of the plea
of guilt. The judge did not consider the said plea of
guilt as mitigating. Is the judge correct?
Yes, the judge is correct because when he pleaded
guilt as an accomplice, his plea of guilt was not
done unconditionally.
What if A was prosecuted for the crime of
reckless imprudence resulting in homicide and
multiple physical injuries. He was driving his
vehicle, bumped a person and injured several
others. During arraignment, he immediately
pleaded guilty. The judge rendered judgment. In
rendering judgment, the judge did not consider
the voluntary plea of guilt as mitigating. Is the
judge correct?
Yes. The judge is correct because in the case of a
culpable felony, in case of quasi-offenses, under
Art. 365 the judge may or may not consider
these MCs in the imposition of penalty. If the
judge consider it or if the judge did not consider it,
that is the decision of the judge. Under Art. 365,
the court is not mandated to consider the rules,
the decision is based on the sound discretion
whether or not to consider the MC.
Ex. X was driving his vehicle when he hit a
pedestrian and the pedestrian died. Afraid that the
people in the area will hurt him, he left the said
pedestrian whom he hit. However upon watching
TV, he learned that the police was looking for him.
The man who was driving this vehicle with this
plate number and at particular time. X knew it was
him so immediately went to the police station and
gave himself up. He was prosecuted for reckless
imprudence resulting in homicide. Upon
arraignment, he immediately pleaded guilty to the
crime charged. If you were the judge what MC will
you consider?
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Under Art. 365, the law provides that in case of
quasi-offenses, the court need not consider the
provision of Art. 64. And what does Art. 64
provide? It provides for the rules on the
application of divisible penalties. The court is not
mandated to consider the rules on aggravating or
mitigating circumstances. The decision is based on
the sound discretion whether or not to consider
the mitigating or aggravating circumstances
[Mariano v. People].
Here, you may consider both voluntary surrender
and voluntary plea of guilty OR you may not
consider any.
Ex. X was walking when suddenly A, B and C
surrounded him. A, B and C attacked and mauled
X until X laid on the ground. X was defeated and
so he pulled out an ice pick and thereafter he hit A.
The ice pick pierced through the heart of A. A died
instantly. B and C left. X was arrested and
thereafter he was charged in court. If you were the
judge that convicted X of homicide, what
mitigating circumstances may be considered in
order to lower the imposable penalty.
1st we have incomplete self-defense. There was
unlawful aggression coming from the said victim.
The victim together with B and C attacked and
mauled X until he fell on the ground. The life of
the accused was place on imminent danger. The
second element was, however, absent. There was
reasonable necessity for him to use an ice pick
hitting the heart of the said victim. Therefore,
unlawful aggression was present but the
reasonable necessity is absent. As for the sufficient
provocation, there was no sufficient provocation
on the part of X. He was merely walking when he
was attacked. Here of the three elements, two are
present and one of them was unlawful aggression.
For as long as unlawful aggression was present,
there is incomplete justifying. This would be
considered a PMC due the presence of 2 out of 3
elements of self-defense.
Aside from that, you can also consider sufficient
provocation on the part of the offended party.
There was provocation on the part of the offended
party and the said commission of the crime was
immediate to the said provocation.
By the presence of the privilege mitigating, it will
lower it by one degree and since there is an
ordinary mitigating, it would be to the minimum
period.
Ex. The husband and the wife were preparing
dinner. There was a knock on the door. The wife
opened the door, upon opening, the neighbor who
was calling the name tried to hack the wife. Wife
was able to reach and close the door and the wife
was not hacked. The neighbor however, with a use
of a bolo continuously hacked the wooden or the
bamboo door and walls of the house. And so,
considering that his house was being damaged, the
husband was forced to go outside to confront the
neighbor. He used the window to go out. He called
the neighbor and asked what was the reason why
he was hacking. The neighbor instead of answering
tried to hack the husband. They struggled for the
possession of the bolo, and in the course the
husband gained possession of the bolo. Once in
the possession of the bolo, the husband hacked the
neighbor. The neighbor suffered a fatal wound but
was brought to the hospital and so he survived.
Husband was prosecuted for frustrated homicide.
Fiscal found probable cause and the case was filed
before the court. The court also found probable
cause. A warrant of arrest was issued against the
husband. The wife immediately informed the
husband that a warrant was issued. Upon learning
the same, although the warrant of arrest was
already with the police officer, the husband went
to the police station and gave himself up. Trial on
the merits and there was conviction of frustrated
homicide. What mitigating circumstances will you
consider?
1st you have to consider voluntary surrender. Even
if there was already a warrant issued, for as long as
the said police officers had not yet gone out
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looking for the said offender, the said surrender
would still be considered voluntary and mitigating
in nature.
[look at the last situational example in Par. 6, which
is similar to this one. Discussions of the presence
of sufficient provocation and passion and
obfuscation are the same]
There are three MCs. Sudden impulse of passion
and obfuscation as well as sufficient provocation
arose from the same facts and circumstances.
Therefore, although both are present, the judge
shall consider them only as one mitigating
circumstance.
Ex. X learned that this old man tried to molest his
wife. Angry upon learning such, X went to the
house of the old man. Upon seeing the old man, X
boxed and boxed the old man and kicked the old
man and he hit the wall and was brought to the
hospital where he died. Case was filed against him
and a warrant was issued against him. Upon
learning, he surrendered. Upon trial of the merits,
he was convicted. What MC will you consider?
1st is immediate vindication of a grave offense or
sudden impulse of passion or obfuscation. X upon
learning that this old man tried to molest his wife,
he immediately went to the old man and boxed and
boxed the said old man. The old man committed
an unlawful act that produce passion or
obfuscation on the part of X.
Any other? There is also praeter intentionem. X only
intended to hurt the old man. He boxed and boxed
the old man, he did not use any weapon. Then he
kicked the old man who hit his head. There is
notable disparity between the means employed and
the resulting felony (in kicking the old man who
later on died).
We also have voluntary surrender because upon
learning that there was a warrant of arrest issued
against him, he immediately went to the police to
surrender.
In so far as immediate vindication of a grave
offense and sudden impulse of passion and
obfuscation are concerned, since again they arose
from the same facts or circumstances, they will be
treated as one MC.
8. That the offender is deaf and dumb, blind or
otherwise suffering some physical defect which
thus restricts his means of action, defense, or
communications with his fellow beings.
This is the MC of physical defect.
For this mc to lie in favor of the accused, it is
necessary that there must be a connection, a
relation between the physical defect and the crime
committed. It is necessary that the said physical
defect must have restricted his use of action,
defense or communication with his fellow being.
Ex.A is a cripple, he has no legs, he always
positions himself near the Quiapo church. He was
on board a skateboard. So he often stays there,
and his work was to snatch the handbags of any
churchgoers. And so one time, he snatched the
handbag of a churchgoer and thereafter, he sped
away on board his skateboard. He was thereafter
arrested, will his physical defect of being crippled,
a man with no legs, be mitigating?
>No. because his physical defect has no relation at
all to the crime he has committed.
What if A is a blind man, blind beggar, near the
Quiapo church. One time he was begging for alms,
suddenly, he was scraped on his head with a
wound, it was so strong that he fell on the ground
wounded. Angry, he stood up, took his cane and
retaliated by hitting the person next to him, not
knowing that it was not the person but an
innocent passerby. The innocent passerby
suffered less physical injuries. So the blind beggar
was prosecuted for less serious physical injuries.
Is the mc of physical defect present so as to reduce
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the imposable penalty?
>Yes. His being blind restricted his means of
action, defense or communication with his fellow
being. His intention was to hit the person who
scraped him with the wound. But because of he
could not see, he hit an innocent passerby. There
was a relation between the physical defect and
the crime committed. Therefore, it will mitigate
his criminal liability.
9. Such illness of the offender as would diminish
the exercise of the will-power of the offender
without however depriving him of the
consciousness of his acts.
It is necessary that the said illness must diminish
the exercise of the will-power of the offender. But
it must not deprive him of his consciousness of
his act because if it will deprive him of
consciousness of his act, then it is exempting not
merely mitigating.
Ex. A is a kleptomaniac, he has this urge to steal.
Now, his urge is to steal diamonds. So one time he
was in a party, he was talking to a lady with
diamond earrings, diamond necklace, diamond
watch, diamond bracelet. Then after the
conversation, the lady went to the restroom. Upon
looking at the mirror, she shouted, she was
shocked, the diamond earring, necklace, watch
and bracelet were all gone. It was already taken
by the said accused. Prosecuted for theft, will his
illness mitigate his criminal liability?
Yes. It diminishes his exercise of his will-power
without however depriving him of consciousness.
He knew that he was committing theft, he knew
that he was taking the personal property of
another but he cannot control, he has a
diminished self-control to prevent the
commission of the crime. It will only mitigate,
reduce the imposable penalty but it will not
exempt from criminal liability.
10. And, finally, any other circumstances of a
similar nature and analogous to those
above mentioned.
Any other circumstance which is similar in nature
from the 1st to the 9th paragraph, then it is also
considered as a mc.
Ex. A public officer who has malversed public
funds, voluntarily, voluntary returned the public
funds, it is akin to voluntary surrender [NOTE:
see Nizurtado v. Sandiganbayan, where in a
case for malversation through falsification of
public document, voluntary surrender and
restitution were considered separately]. Or what if
a person is already of 65 years of age, sickly,
suffering from a disease it can be said to be akin
or similar to seniority. It will mitigate his criminal
liability.
Article 14. Aggravating circumstances. - The
following are aggravating circumstances:
1. That advantage be taken by the offender of his
public position.
2. That the crime be committed in contempt or
with insult to the public authorities.
3. That the act be committed with insult or in
disregard of the respect due the offended
party on account of his rank, age, or sex, or
that is be committed in the dwelling of the
offended party, if the latter has not given
provocation.
4. That the act be committed with abuse of
confidence or obvious ungratefulness.
5. That the crime be committed in the palace of
the Chief Executive or in his presence, or
where public authorities are engaged in the
discharge of their duties, or in a place
dedicated to religious worship.
6. That the crime be committed in the night
time, or in an uninhabited place, or by a band,
whenever such circumstances may facilitate
the commission of the offense.
7. Whenever more than three armed malefactors
shall have acted together in the commission of
an offense, it shall be deemed to have been
committed by a band.
8. That the crime be committed on the occasion
of a conflagration, shipwreck, earthquake,
epidemic or other calamity or misfortune.
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9. That the crime be committed with the aid of
armed men or persons who insure or afford
impunity.
10. That the accused is a recidivist.
A recidivist is one who, at the time of his trial
for one crime, shall have been previously
convicted by final judgment of another crime
embraced in the same title of this Code.
11. That the offender has been previously
punished by an offense to which the law
attaches an equal or greater penalty or for two
or more crimes to which it attaches a lighter
penalty.
12. That the crime be committed in consideration
of a price, reward, or promise.
13. That the crime be committed by means of
inundation, fire, poison, explosion, stranding
of a vessel or international damage thereto,
derailment of a locomotive, or by the use of
any other artifice involving great waste and
ruin.
14. That the act be committed with evidence
premeditation.
15. That the craft, fraud or disguise be employed.
16. That advantage be taken of superior strength,
or means be employed to weaken the defense.
17. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits
any of the crimes against the person,
employing means, methods, or forms in the
execution thereof which tend directly and
specially to insure its execution, without risk
to himself arising from the defense which the
offended party might make.
18. That means be employed or circumstances
brought about which add ignominy to the
natural effects of the act.
19. That the crime be committed after an
unlawful entry.
There is an unlawful entry when an entrance
of a crime a wall, roof, floor, door, or window
be broken.
20. That the crime be committed with the aid of
persons under fifteen years of age or by means
of motor vehicles, motorized watercraft,
airships, or other similar means. (As amended
by RA 5438).
21. That the wrong done in the commission of the
crime be deliberately augmented by causing
other wrong not necessary for its commission.
Aggravating Circumstances (AC) are those
which if present in the commission of a felony will
serve to increase the imposable penalty
without however going beyond the maximum
penalty prescribed by law. The penalty is
increased because [they demonstrate greater
perversity of the accused].
No matter how many aggravating circumstances
attended the crime the court cannot impose a
penalty beyond the maximum penalty prescribed
by law.
Unlike justifying, exempting and mitigating
circumstances, which do not need to be stated or
alleged in the information, aggravating
circumstances must be alleged in the information.
Even if they are proven in trial but they are not
alleged in the information, they cannot be
considered against the person [People v. Race,
Jr.]. They must be both alleged and likewise
proven during trial, so as not to deprive the
accused of right to know the nature of the
accusation against him.
Kinds of Aggravating Circumstances [GSIS-
Q]:
1. Generic
2. Specific
3. Inherent
4. Qualifying
5. Special
1. Generic Aggravating Circumstances are
those that applies generally to all crimes.
Example:
a. Nighttime- it can be applied to crimes
against persons, crimes against property,
crimes against chastity and applied to all
other crimes.
b. Recidivism
2. Specific Aggravating Circumstances are
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those that apply only to certain or particular
crimes.
Ex: Treachery (Par.16 Art. 14) can only be
considered or appreciated in crimes against
persons.
3. Inherent Aggravating Circumstance are
those which of necessity follow the commission of
the crime because they are considered as
elements in the commission of the crime,
therefore they are considered inherent in the
commission of the crime.
If they are present in the commission of the crime
they are no longer considered so as to increase the
penalty because they are considered as elements.
4. Qualifying Aggravating Circumstances
are those which either change the nature of the
crime to bring about a more serious for a higher
penalty or even without changing the nature of
the crime it would impose a higher penalty.
Example: Art. 248: Murder
o the circumstances therein present would
qualify the killing of a person from homicide
to murder
o presence of treachery, evident premeditation,
cruelty in killing would make a crime not of
homicide but would be qualified to murder.
 In case of qualifying aggravating
circumstance, for example, A killed B there
was treachery, it was done in consideration of
a price, reward or promise, there was also
cruelty, so there are three qualifying
aggravating circumstances present. Only one
of them will qualify the killing to murder. So if
treachery is already proven, the crime
committed is already murder. Cruelty and the
other circumstance of in consideration of a
price, reward or promise shall only be
considered as generic aggravating
circumstances.
5. Special Aggravating Circumstances
Provides for the imposition of the maximum
penalty prescribed by law; hence it cannot be offset
by any mitigating circumstance.
Example: If the crime is committed by a syndicate
or organized crime group as provided by Art.62 as
amended by RA 7659.
Sec.23 of RA 7659 provides "The maximum
penalty shall be imposed if the offense was
committed by any group who belongs to an
organized/syndicated crime group"
[Note: Also, see Art. 62 (1a), RPC as amended by
RA 7659: “When in the commission of the crime,
advantage was taken by the offender of his public
position, the penalty to be imposed shall be in its
maximum period regardless of mitigating
circumstances”.]
Aggravating Circumstances:
1. That advantage be taken by the offender of his
public position.
This aggravating circumstance can be applied
only if the offender is a public officer, and he used
the prestige, influence or ascendency of his office
in the commission of the crime or to facilitate the
commission of the crime.
Generally, that the offender took advantage of his
public position, is a special aggravating
circumstance. Under Art. 14, however, it is merely
Generic Aggravating, but if you look at Art. 62 as
amended by RA 7659, the heinous crime law, it is
a special aggravating circumstance because the
law says the maximum penalty prescribed by law
should be the one imposed. Therefore it is a special
aggravating and cannot be offset by any mitigating
circumstance
Examples:
Police officer A was having a drinking spree with
his friends outside his house. In the course
thereof, they were discussing about the alleged
shoot out in Quezon. According to the police
officer, since he was a police officer, it was a
shoot out. But according to his friend it was a rub
out. They were arguing, exchanging views until
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the police officer got mad. At that time, he had
with him his pistol. He used his service pistol and
shot his friend who thereafter died. Is the said act
of killing done by taking advantage of his public
position?
This aggravating circumstance is not present. It
is not present because the said offender, public
officer, did not use or misuse his public office. He
did not use the influence, the ascendency or the
prestige of his office in order to commit the
crime. Even not being a public officer he could
have killed his friend in the same situation. He
could even have used another weapon, not
necessarily his service pistol.
The police officers stop jeepney drivers and will ask
for tong every morning and so until one time when
the jeepney driver filed a case of extortion against
him. In the information it was alleged that he
committed this act by taking advantage of his
public position, the said circumstance was alleged
in the information and proven during trial. How it
is to be appreciated?
It is a Special Aggravating Circumstance because
under Art. 62 as amended by RA 7659, the
maximum period for the penalty prescribed by law
shall be the one imposed. It cannot be offset by
any mitigating circumstance.
The police officers raided a bar and among the
women arrested was Y. After investigation, was
brought in a certain room and there the arresting
police officer had carnal knowledge of Y against
her will, and so the crime of Rape was filed against
the said police officer. In the information, it was
alleged that the aggravating circumstance of taken
advantage of his public position was
present/attended the commission of the crime.
How is the advantage taken of his public position
to be considered by the court?
It is to be considered as a Qualifying Aggravating
Circumstance. Under Art.266-B of the RPC "If the
victim is in the custody of police authorities, the
military or any member of any penal institutions”,
it will be considered as Qualified Rape and the
imposable penalty will be Death. So it changed the
nature of the crime from Rape to Qualified Rape,
and from Reclusion Perpetua the penalty was
increased to Death. So it will Qualify the
commission of the crime, the crime committed is
Qualified Rape.
2. That the crime be committed in contempt of or
with insult to the public authorities.
Elements of Art. 14, Par. 2:
1. That the public officer or public authority
is engaged in the exercise of his function;
2. That the public authority is not the person
against whom the crime is committed;
3. That the offender knows him to be a public
authority;
4. That the presence of the public authority
did not prevent the offender from the
commission of the crime.
For this circumstance to be appreciated it is
necessary that the crime was committed in the
presence of public authorities while the latter is
engaged in the performance of their official
duties. So even if there is a public authority at the
time of the commission of the crime the offender
still committed the crime, and the presence of
such authorities did not prevent the offender
from making the crime
1st element: That the public officer or public
authority is engaged in the exercise of his function.
Who is a public authority?
Any person directly vested with jurisdiction
whether an individual or some members of court
or governmental commissioner. It is necessary
that he has the duty to govern and execute the
laws.
Example: Mayors, barangay chairman.
NOTE: A police officer is merely an agent of a
person in authority
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2nd element: That the public authority is not the
person against whom the crime is committed.
If the public authority is the person attacked or
assaulted, the crime is Direct Assault and [in]
contempt of or with insult to public authorities is
no longer considered as an aggravating
circumstance, but an integral element in the
commission of the crime
3rd element: That the offender knows him to be a
public authority.
There must be knowledge on the part of the
offender that the said person is a public authority.
Otherwise, it cannot be said that he disrespected
the said person as a public authority if he has no
knowledge that he is a public authority.
4th element: The presence of the public authority
did not prevent the offender from the commission
of the crime.
What if the barangay chairman was in a
restaurant having dinner with his wife because it
was their wedding anniversary. Suddenly here
comes A, B and C who are constituents of the
barangay chairman. Upon seeing the chairman,
they greeted him and even congratulated him and
his wife upon learning that they were celebrating
their wedding anniversary. They seated next to
the table of the chairman and ordered food. In the
giving of the food, there was an argument
between A and the waiter. The argument
immediately became a heated one. A took the
table knife and stabbed the waiter. The waiter
suffered serious physical injuries. Prosecuted for
frustrated homicide. In the prosecution for said
crime, is the aggravating circumstance of in
contempt of or with insult to public authority
present?
It is not present because the first element is
absent. The first element, that the public officer or
public authority is engaged in the exercise of his
function. At the time of the commission of the
crime, yes he was there but he was in a private act.
He was not engaged in the exercise of his function,
hence it cannot be said that the said offender
insulted the said public authority.
What if the public authority was the city mayor
who was inside his office. Suddenly he heard
commotion on the ground floor. He looked out his
window, he saw his two supporters having an
argument. A and B were having an argument over
a parking space. The mayor went down the
building and talked to both A and B. He told them
to shake hands and forget everything. Then he
told A to just allow B to park his car anyway there
was another parking space available. This
angered A because he thought that the mayor was
siding with B. A took out his balisong and stabbed
the mayor. Is the aggravating circumstance of in
contempt of or with insult to public authority
present?
It is present but it is not an aggravating
circumstance but an element of the crime because
the crime committed is direct assault. It is direct
assault because the public authority at the time of
the attack was engaged in the performance of his
functions. Since the crime committed was against
the public authority himself, the fact that it was
committed in contempt of or with insult to the
said public authority is an ingredient of the crime.
What if in the same problem instead of stabbing
the said mayor, A felt insulted with the mayor's
words that he is giving the parking space to B so
this angered A. A stabbed B. B died. Is the
aggravating circumstance of in contempt of or with
insult to public authority present?
This time, it is present. The mayor's act of
pacifying A and B was engaged in his official
functions. He was not the person against whom
the crime was committed. A was a supporter,
therefore he knew mayor was a person in
authority. Yet, the presence of the mayor did not
prevent A from committing the crime against B.
Hence, the second aggravating circumstance is
present.
3. That the act be committed with insult or in
disregard of the respect due the offended party
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on account of his rank, age, or sex, or that is be
committed in the dwelling of the offended party,
if the latter has not given provocation.
There are four aggravating circumstances under
this paragraph:
1. Disregard of rank
2. Disregard of age
3. Disregard [disrespect] of sex
4. Crimes committed in dwelling of the offended
party
These four aggravating circumstances can be
appreciated singly or collectively if present in the
commission of the crime.
Disregard of rank, disregard of age and
disregard of sex can only be considered in
crimes against persons and crimes against
chastity. You do not consider these in crimes
against property; you do not consider these in
crimes against public interest.
 Disregard of rank
Rank refers to a high social standing, a high
position in the society. For this to be considered
as an aggravating circumstance, it is necessary
that the offender be of lower rank than that of the
offended party.
Example:
1. A student attacking a professor. There was a
disregard of rank of the said professor.
2. An employee attacking his employer. There
was a disregard of rank of the said employer.
 Disregard of age
Age here refers to both minority and seniority.
Example:
The offended party is 95 years old. A killed him by
hitting his head for 25 times with a lead pipe.
Obviously, there was disregard of his age.
Considering his age, whereas even one hit of the
lead pipe could have already killed the said old
man but he was hit 25 times showing disregard
of the age of the old man.
What if a child is 4 years old. He was stabbed 25
times, thereafter his body was placed inside a
dram filled with water and then the dram was
covered. There was disregard of age. The victim
was a minor and therefore any attack, just 1
stab, could have killed the minor. But he was
stabbed 25 times; not only that, he was also
submerged and the drum was covered, which
shows disrespect of age.
* If there was disrespect of age and there was
also treachery, the aggravating circumstance
to be considered is treachery because it
absorbs disrespect of age.
 Disrespect of sex
Disrespect of sex refers to the female sex. This is
inherent in the crime of rape and in certain crimes
involving chastity.
 Crimes committed in dwelling of the offended
party
Dwelling is considered as aggravating
circumstance if the crime is committed inside the
dwelling of the offended party, that is, the
offended party was inside his dwelling at the time
of the commission of the crime and he has not
given any provocation.
If the crime is committed inside the dwelling of
the offended party, it is as an aggravating
circumstance because it shows the greater
perversity of the offender than when the crime is
committed in any other place. It is because the
constitution itself provides that a man's abode
must be respected and therefore when a crime is
committed inside the house dwelling it shows the
greater criminality on the part of the offender.
Instances when dwelling is not considered an
AC even if the crime was committed in a
dwelling:
1. When the offended party has given
provocation;
2. if the offender and the offended party are
living in the same dwelling;
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3. When dwelling is inherent in the commission
of the crime.
Dwelling includes the dependencies, the staircase
and the enclosures therein. It need not be owned
by the offended party, it suffices that the offended
party uses it for rest and comfort.
E.g., a room being rented by the lessee or a tenant;
room where a person is living as a bedspacer.
What if A who lives in a nipa hut was sitting at the
staircase when B came and forcibly drag her to
another house, 1 kilometer away from A's house,
where she was raped by B. Is the aggravating
circumstance of dwelling present?
The aggravating circumstance is present even if
the crime was committed in another place far
from the dwelling, the aggression started in the
dwelling of the offended party. The aggression
that started in the dwelling of the offended party
when she was dragged from the said staircase,
that aggression cannot be divided from the
commission of said crim. So even if it grounds
were consummated in another place for as long
as aggression started in the dwelling, still
dwelling is an aggravating circumstance.
What if husband and wife were already about to
sleep, then they heard someone calling the name
of the husband outside the house. The husband
rose from the bed and looked out the window to
see who was calling him. Upon looking at the
window suddenly there were gun fires. The
husband fell lifeless. The wife, also went to the
window and looked out to see who killed her
husband. She was also fired at. Is the aggravating
circumstance of dwelling present?
Yes, dwelling is an aggravating circumstance. It
is not necessary for dwelling to be aggravating
that the perpetrator of the crime was able to get
in. It suffices that the offended party or the victim
is inside his house. The assailant may device ways
and means to commit the crime from the outside.
What if there was this woman. She is 95 years old;
a woman of high standing in the society. She was
a former department secretary. She is living alone
in her house. One time here comes X. X wanted to
rob the valuables inside the house of the said old
woman. X entered the said house and he was able
to get the valuables from the vault of the house.
He was about to leave the house when
accidentally pushed the chair. By reason thereof,
the woman was awaken. The woman upon seeing
X begun screaming. X then fired at the woman 50
times. The woman died. Are the aggravating
circumstances of disregard of rank, disregard of
age, disregard of sex and dwelling present?
The first three circumstances are not present
because the crime committed is robbery with
homicide, under Article 10 which is a crime
against property. Disregard of rank, age and sex
are not applicable to any other crimes but only to
crimes against person and crimes against honor
[NOT chastity]. Since the crime committed is a
crime against property, therefore, disregard of
rank, age and sex cannot be considered against
the accused.
Dwelling can be considered against the accused
because the crime committed robbery with
homicide is a form of robbery with violence
against or intimidation of persons. Dwelling is
only inherent in robbery with use of force
upon things but dwelling is not inherent in
case of robbery with violence against or
intimidation of persons just like robbery with
homicide. So in this case, only dwelling should be
considered as an aggravating circumstance.
4. That the act be committed with abuse of
confidence or obvious ungratefulness.
There are two aggravating circumstances:
1. Abuse of confidence
2. Obvious ungratefulness
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Abuse of confidence
Elements of abuse of confidence:
1. That the offended party had trusted the
offender;
2. That the offender abuse such trust by
committing a crime against the offended
party;
3. That the abuse of confidence facilitated
the commission of the crime.
Example:
A and B have been living here in Manila for 4
years. Suddenly here comes X. X was their former
neighbor in Batangas. He told A and B "I am
looking for work here in Manila, can I live in your
house while I am looking for work?" Since he was
a good neighbor back then A and B trusted X and
allowed X to live inside their house. X now sleeps
in the house of A and B while he was looking for
work here in manila. One time A and B were out
of the house in their respective works. The only
person left in the house was X and their daughter
who was only 9 years old. While the couple were
out, X molested and raped the said daughter. Is the
aggravating circumstance abuse of confidence
present in this case?
Yes, it is present. X was there because A and B
trusted him, yet he abused such trust and
confidence and instead facilitated the commission
of the crime. Therefore this aggravating
circumstance is present.
Obvious Ungratefulness: ungratefulness means
the offender has no gratitude, does not even
know how to say thank you.
Elements of obvious ungratefulness:
1. That the offended party had trusted the
offender;
2. That the offender abuse such trust by
committing a crime against the offended
party;
3. That the act be committed with obvious
ungratefulness
Ex: A was selling kettles and other kitchenware on
the street under the heat of the sun. A goes from
one house to another under the heat of the sun. He
was so thirsty already so he knocked on the gate
of the house of X. X opened the gate and A told X
that he was so thirsty. X being a good person,
allowed A to go inside their house and asked him
to take a sit while he get him a glass of water.
When he came back, he was not only holding a
glass of water but also brought some biscuits.
However A suddenly, brought out his knife and
stabbed X and thereafter robbed him. Is the
aggravating circumstance obvious ungratefulness
present?
Yes. Instead of showing gratitude for having been
allowed to enter the house and given a glass of
water with biscuits, he instead took advantage of
the goodness of the man and committed the crime
of killing and robbery. There was obvious
ungratefulness on the part of the offender.
5. That the crime be committed in the palace of the
Chief Executive, or in his presence, or where
public authorities are engaged in the discharge
of their duties or in a place dedicated to
religious worship.
There are four aggravating circumstances. If the
crime is committed in any of these places it is
considered as an aggravating circumstance
because it shows on the part of the offender lack
of respect on these places.
In order however for these aggravating
circumstances to be considered, it is necessary
that the offender deliberately sought the said
place to commit the crime because otherwise it
cannot be said that he disrespected the place.
1. In the palace of the Chief Executive
Regardless of whether there is a public affair or
official affair going on, if a crime is committed
there it is aggravating.
2. In the presence of the Chief Executive
Even if the Chief Executive is playing golf in
Baguio, still it is considered as aggravating
because of the lack of respect to the chief
executive.
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3. Where the Public Authorities are engaged in
the discharge of their duties
Requisites of place where public authorities
are engaged in the discharge of their duties:
1. The place is where public authorities are
engaged in the discharge of their duties;
2. The public authorities are actually engaged
in the discharge of the performance of
their duties.
Par. 5 (Places of Par. 2 (Insult to
commission) public authorities)
Public duty is Public duty is
performed in their performed outside
office. their office.
The offended party Public authority
may or may not be the should not be the
public authority. offended party.
In both, public authorities are in the
performance of their duties.
(Source: GN 2016)
4. In a place dedicated to religious worship
Even if there is no religious ceremony on going,
for as long as the said crime is committed in said
place dedicated to religious worship it is
aggravating because of lack of respect on said
place.
Ex:
A and B are chefs in Malacanang. They are
outdoing each other in trying to prepare the best
meal for P-noy. One time, both of them were
preparing lunch for the president. Suddenly they
had an argument. In the course thereof, A stabbed
B. B suffered a fatal wound but he survived.
Prosecuted for frustrated homicide. Is the
aggravating circumstance that the crime was
committed in the palace of the Chief Executive
present?
No, it is not present. Because he works there, he
lives there. It cannot be said that he sought the
said place in order to commit the crime. It cannot
be said that he went to said place in order to
commit the crime or can it be said that he
disrespected the said place.
What if many farmers were having a rally outside
the DAR. They started the rally around 6am, it is
now 8pm, they were still there. The officials and
employees had already left, so the farmers were
there still having their rally. They set tents and
prepared to sleep there. In the course thereof, 2
farmers argued at each other. In the course of
their argument one farmer jumped into the fence
and went inside the DAR. The second farmer
followed him and when the second farmer was
able to catch up with the first farmer, he killed the
latter. Is the aggravating circumstance that the
crime was committed in a place where the Public
Authorities are engaged in the discharge of their
duties present?
No, it is not present. Although DAR is a place
where the Public Authorities are engaged in the
discharge of their duties, at the time of the
commission of the crime, the officials and
employees are not in the actual performance of
their duties. Under this aggravating circumstance,
it is not only necessary that the said places are
where public authorities are engaged in the
discharge of their duties, it is also necessary that
at the time of the commission of the crime, the
public authorities are actually engaged in the
performance of their duties.
6. That the crime be committed at the nighttime or
in an uninhabited place, or by a band, whenever
such circumstances may facilitate the
commission of the crime.
Whenever more than three armed
malefactors shall have acted together in the
commission of the offense, it shall be deemed to
have been committed by a band.
There are three aggravating circumstances:
1. Nighttime
2. Uninhabited place
3. Band
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1. Nighttime-from sunset to sunrise
Requisites of nighttime:
1. The offender deliberately took advantage of
nighttime or cover of darkness;
2. The purpose of the offender is to facilitate
the commission of the crime or to insure or
afford impunity.
To facilitate the commission of the crime, he use
the cover of darkness, so that his actual
perpetration of the crime will be unmolested. He
cannot be disturbed. Therefore, there is an
assurance that crime will be consummated. To
insure or afford impunity he sought to cover in
darkness so that no one will be able to recognize
him.
Even if the offender sought nighttime, the
moment the scene of the crime has been
illuminated by any light, rule out nighttime as an
aggravating circumstance.
Example:
In the commission of the crime, A decided to kill
B, his enemy. A knew that B would pass by the
place wherein there were no light posts. A waited
for B in the said place. Upon the moment B arrived
A left his post and was about to stab B when
suddenly a tricycle passed by and the light coming
from the tricycle illuminated the scene of the
crime. Even if A deliberately sought nighttime,
nighttime is not aggravating because a light
illuminated the scene of the crime. Whenever any
light has illuminated the scene of the crime, rule
out nighttime as an aggravating circumstance.
Light coming from the tricycle, from any vehicle,
nearby house, light posts or even from the moon,
for as long as the scene of the crime has been
illuminated, nighttime is not aggravating.
2. An uninhabited place
A place which is isolated from the others or
located far from others where the victim has very
little or remote possibility to receive help.
[However this is not the requirement for it to be
considered aggravating.]
Requisites of an uninhabited place:
1. That in the place where the crime was
committed there was a remote possibility
for the victim to receive some help;
2. That the offender deliberately sought the
uninhabited place in order to facilitate the
commission of the crime.
Ex: A, B and C are fishermen. Around 3 am, they
all went out fishing on their respective boats.
They were sailing 5 meters away from each other.
Suddenly X sprung out of the water and he
stabbed A. In the prosecution for killing of A, is the
aggravating circumstance of uninhabited place
present?
Yes it is present. First, in the place where the
crime was committed, there was very little,
remote possibility for A to receive some help.
Because B and C must still swim before they could
render help or assistance to A. Before they could
have swum and reached A, A is already dead.
Therefore there was very litter or remote
possibility for the victim to be saved. The said
accused X deliberately sought the place in order
to facilitate in the commission of the crime
because he suddenly appeared from the water.
Therefore the aggravating circumstance of
uninhabited place is present.
3. By a band
For the aggravating circumstance of by a band to
be present, the law says where more than three
armed malefactors shall have acted together in
the commission of the offense, it shall be deemed
to have been committed by a band. Therefore,
there must be at least 4 armed men [who] have
acted together in the commission of the crime.
Ex: A, B, C, D and E all armed with knives, killed X.
The information stated that A, B, C, D and E
conspired with one another and as a band they
committed the crime of murder against X. during
the presentation of evidence, conspiracy was
proven beyond reasonable doubt. Likewise, band
as an aggravating circumstance was proven
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beyond reasonable doubt. Thus the judge
convicted A, B, C, D and E for the crime of murder
as conspirators. The judge also considered the
aggravating circumstance of by a band. The
counsel for the accused filed a motion for the
consideration, questioning the consideration of
the aggravating circumstance of by a band.
According to the counsel, conspiracy has already
been considered therefore by a band can no
longer be considered by the court. Is the counsel's
contention correct?
No, the counsel's contention is wrong. Even if the
court already considered conspiracy, by a
band may still be considered by the court
because conspiracy is a means of committing a
crime. It means they have the same criminal
liability. On the other hand, by a band is an
aggravating circumstance. One does not absorb
the other, therefore, both maybe considered and
appreciated by the court.
7. That the crime be committed on the occasion of
a conflagration, shipwreck, earthquake,
epidemic, or other calamity or misfortune.
It is considered as an aggravating circumstance
because on occasion of these calamities, the
offender took advantage of the said occasion in
order to commit the crime.
In times of calamities we should help one another,
so if the offender took advantage of these
occasions, it shows his greater criminality, his
greater perversity hence it will aggravate his
criminal liability.
Examples:
There was this big fire, that a number of houses in
the barangay were gutted with fire, the house of X
was among those affected by this big fire. While X
was busy getting his things out of said house, and
so Y wanted to take a revenge because he has
grudge against X, went to the said place and
pretending to be helping, went near X, and X who
is already an old man, Y repeatedly stabbed X.
Thereafter Y took all the things inside the house.
Y was charged of robbery with homicide. Is the
charge correct?
The charge is wrong. It is not robbery with
homicide because the criminal intent of Y was to
take a revenge on X, to kill X. So the appropriate
charge Murder and Theft. Two crimes must be
charged.
What aggravating circumstances attended the
commission of the crime?
First, on the occasion of a big fire, which is a
qualifying aggravating circumstance. If you would
look at Art.248, if crime of killing a person is
committed under any of these occasions, it will
qualify the crime of Homicide to Murder, and the
penalty would be Reclusion Perpetua. The fact that
the killing took place on the occasion of the said
fire then the crime would be considered as
Murder.
Crime is committed inside dwelling of the
offended party while he was busy saving all his
things. Although it is being gutted with fire, it is
still the dwelling, the place of comfort and rest of
X.
No disregard of age, there was no showing of
disrespect of age. Although Y repeatedly stabbed
X, there was no showing that Y
disregarded/disrespected or intended to
disregard/disrespect the age of X, because the
intent was to take a revenge against X.
So two aggravating circumstances are present, one
is on the occasion of fire and the other, that
dwelling is present in the commission of the crime
Lessor-Y went to the unit being rented by the
lessee- X to ask the latter to pay rent because the
lessee haven't paid rent for three months already.
X happened to be an old man. When X still didn't
pay the rent, Y attacked X, Y hacked and hacked
X. When X, the said old man, 85yrs old, was
already lying on the floor still Y repeatedly and
continuously hacked X. What aggravating
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circumstances attended the commission of the
crime?
The first aggravating circumstance that attended
the commission of the crime is dwelling. There is
dwelling in the commission of the crime because
it was committed in the unit being rented by X
even if Y is the owner, still it is the dwelling of X
because he is renting the said place from the
owner.
Disregard of Age, X was already lying on the floor
yet Y still repeatedly hacked X. An 85yrs old lying
cold feet on the ground then there was obviously
disregard of the age of the victim in the
commission of the crime.
***if the question is: "Are the aggravating
circumstances of dwelling, abuse of confidence,
nighttime, etc. PRESENT in the commission of
the crime?"
Your answer is - if they are present or not. You
will say if they are present, and you will state the
elements why they are present, and connect the
elements to the facts.
But if the question is: "If you were the judge how
would you consider/ APPRECIATE these
aggravating circumstances?"
Then that is the time that you will say that some of
these aggravating circumstances will be absorbed
by Treachery. Or that they will be offset by some
of the mitigating circumstances.
8. That the crime be committed with the aid of
armed men or persons who insure or afford
impunity.
"With the aid of armed men"
The armed men aided the offender in the
commission of the crime. The aid given by the
armed men maybe a direct or indirect
participation in the commission of the crime.
Armed men distinguished from by a band
Band (Par. 6) Armed Men (Par. 8)
At least 4 armed No requisite as to the
malefactors number of armed men
who aided the actual
perpetrator of the
crime.
The armed men must Not necessary that
have acted together in they acted together in
the commission of the the commission of the
crime crime because they
merely aided the
actual perpetrator;
their participation
may be direct or
indirect.
Band members are all Armed men are mere
principals (GN) accomplices (GN)
FOUR FORMS OF HABITUALITY
 Recidivism (Art. 14, Par. 9);
 Reiteracion/Habituality (Art. 14, Par. 10);
 Habitual Delinquency (Art. 62.);
 Quasi-Recidivism (Art. 160).
9. That the accused is a recidivist.
A recidivist is one whom at the time of his
trial for one crime, shall have previously been
convicted by final judgment of another crime
embraced in the same title of this Code.
Requisites of Recidivism:
1. That the offender is on trial for an offense;
2. That he was previously convicted by final
judgment of another crime;
3. That both the first and second offenses are
embraced in the same title of the RPC;
4. That the offender is convicted of the
second offense charged.
In case of recidivism, there must be at least 2
convictions. First conviction must be by final
judgment. The second conviction must be for the
second time for which he is on trial.
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Reiteracion, recidivism, habitual delinquency and quasi-recidivism, distinguished (GN 2016)
REITERACTION RECIDIVISM HABITUAL QUASI-RECIDIVISM
DELINQUENCY
It is necessary that the It is enough that a final Within a period of 10 Felony was committed
offender shall have judgment has been years from the date of after having been
served out his sentence rendered in the first first release or last convicted by final
for the first offense. offense. conviction, he is found judgment of an offense,
guilty of any of the before beginning to serve
crimes below a third sentence or while serving
time or oftener. the same.
The previous and Requires that the Crimes involved are First and subsequent
subsequent offenses offenses be included in serious or less serious conviction may or may
must not be embraced the same title of the physical injuries, not be embraced by the
by the same title of the RPC. robbery, theft, estafa, same title of the RPC.
RPC. and falsification.
Not always Increases the penalty to Offender shall suffer an Offender shall be
aggravating; its maximum period. additional penalty. punished by the
discretionary on the maximum period of the
court to appreciate. penalty prescribed by law
for the new felony.
Includes offenses Felonies under the Limited to serious or First crime for which the
under special laws. RPC only. less serious physical offender is serving
injuries, robbery, theft, sentence need not be a
estafa, and falsification. crime under the RPC but
the second crime must be
one under the RPC.
A generic AC. A generic AC. Extraordinary AC Special AC which may be
which cannot be offset offset by a [special] PMCs
by an MC. but not by OMCs.

Yes, because both homicide and murder are

embraced in the same title of the code. The fact
Example: that 25 years had lapsed from the time of the first
A has been convicted of the crime of attempted crime to the second crime is immaterial because
homicide. The judge found him guilty beyond recidivism is imprescriptible. There is no time
reasonable doubt, therefore, he was convicted. limit between the first crime for which he has
The judgment became final and executory, been convicted by final judgment and the second
therefore he was behind bars. He served out his crime for which he is also convicted.
sentence. Once out of prison cell, he lived a good
life. However, after 25 years, he engaged in a fight
and killed the other man. By reasonable doubt he
was charged with and convicted of the crime of
murder. Can the judge consider recidivism as an
aggravating circumstance in imposing the penalty
for murder?

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Recidivism Habitual situations. The first situation is that, he has
Delinquency already served out the sentence, he has already
At least two At least three been punished for a crime. If it is only one crime
convictions convictions it is necessary that the said crime must carry a
Crimes are under the Serious physical penalty equal to or greater than the second crime.
same title of the RPC. injuries, less serious But if there are two crimes for which he had been
physical injuries, previously punished, it is necessary that they
robbery, theft, carry a lighter penalties than the new crime for
falsification. which he is convicted.
No prescriptive Prescriptive period of
Recidivism Reiteracion
period on the 10 years.
commission of the In both, there must at least be two convictions.
offense; it does not It is only required that
The offender must
prescribe. there is a conviction by
have served his
Generic AC, may be Cannot be offset by final judgment of the sentence for the
offset. MCs; it provides for an first crime. previous crime he
additional penalty. committed.
The two crimes must There is no such
Recidivism Quasi-Recidivism be included in the requisite.
There must be at least Likewise there must be same title of the RPC.
two convictions. two convictions (first
by final judgment and
Examples:
second for the second A has been convicted of the crime of homicide.
crime that he has Convicted by final judgment, he was placed
committed). behind bars. He served out his sentence. Once out
The crimes must be No such requisite, of prison, he committed forcible abduction.
embraced in the same only that the second Homicide is punished by reclusion temporal.
title of the Code, crime must be a felony Forcible abduction is now on trial. The penalty
prescribed by law for forcible abduction is also
10. That the offender has been previously punished reclusion temporal. The judge found him guilty
for an offense to which the law attaches an for forcible abduction. Can the judge consider
equal or greater penalty or for two or more reiteracion as an aggravating circumstance in
crimes to which it attaches a lighter penalty. imposing the penalty for forcible abduction?
This is likewise considered as reiteracion or Yes because the penalty for the crime of homicide
habituality. where he has already served out his sentence is
equal to the penalty for forcible abduction, both
Elements of reiteracion:
reclusion temporal. Therefore, reiteracion or
1. That the accused is on trial for an offense;
habituality can be considered.
2. That at the time of the trial he previously
served sentence for another crime to which
B committed forcible abduction. He was convicted
the law attaches an equal or greater penalty
by final judgment. He served out his sentence. He
or for two or more crimes to which it attaches
is now out of prison. Once out of prison, he
a lighter penalty;
committed falsification of public document. He is
3. That he is also convicted of the new offense.
on trial for the said falsification of public
document. The judge found him guilty beyond
Under the second element there are two

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reasonable doubt. In imposing the penalty for
falsification of public document, can judge consider
reiteracion as an aggravating circumstance?
Yes, because the penalty for forcible abduction is
reclusion temporal, which is higher than the
penalty for falsification of public document
committed by a private individual which is only
prision correccional. Therefore, reiteracion or
habituality should be considered by the court in
imposing the penalty for falsification of public
document.
B committed falsification of public document.
Convicted, served out the sentence. After service
of sentence, he is out of prison, he engaged in a
fight and killed his opponent. His now on trial for
homicide. The judge found him guilty beyond
reasonable doubt. Can the judge consider
reiteracion as an aggravating circumstance?
No because the crime for which he has served out
his sentence carries a penalty lighter than that of
the second crime. The law requires that if it is only
one crime, it must carry a penalty equal to or
greater than the second crime he committed.
A slapped B. B filed a case for slight physical
injuries against A. He was convicted and served
out his sentence for slight physical injuries which
is arresto menor. Once out of prison, he was still
mad at B. He deliberately caused damage to the
property of B. B now filed a case of malicious
mischief against A. The judge found him guilty
beyond reasonable doubt for malicious mischief.
Can the judge consider reiteracion as an
aggravating circumstance?
No because slight physical injuries which carries
with it the penalty of arresto menor is lighter than
malicious mischief which carries with it the
penalty of arresto mayor. Therefore the judge
cannot consider reiteracion as an aggravating
circumstance. He was convicted of malicious
mischief and placed behind bars.
After service of sentence, he is now out of prison.
Once out of prison, he was still mad at B. therefore
he made sworn affidavits stating false statements
against B. B filed a case of perjury against A. he is
now on trial for the crime of perjury. The judge
found him guilty beyond reasonable doubt. Can
the judge consider reiteracion as an aggravating
circumstance?
Yes, because the first two crimes, the penalties of
which were already served out, carry lighter
penalties than the third crime: slight physical
injuries, arresto menor; malicious mischief
arresto mayor. Therefore reiteracion can be
considered.
People v. Race, Jr., G.R. No. 93143, 4 August
1992
Facts: Maximo Race, Jr. was charged with Rape
before the RTC of Masbate. It was proven that he
raped Maria Pura, a cross-eyed, mute and retarded
40-year old polio victim, thus he was convicted.
The RTC also appreciated the aggravating
circumstance of reiteracion because he admitted
during cross-examination that he was previously
convicted of the crime of homicide but was out on
parole at the time of the rape.
Issue: Whether the RTC was correct in
appreciating reiteraction as an AC.
Ruling: No.
The trial court likewise erred in appreciating the
aggravating circumstance of reiteracion. This
circumstance is not alleged in the information. The
prosecution did not prove it. Upon cross-
examination of the accused by the Prosecutor, over
the objection of the defense counsel, the only
information elicited is that the accused had earlier
been convicted for the crime of homicide, had
served the sentence and had later been released.
The fact of his being out on parole was brought
out upon questioning by the court after the
termination of the cross- examination. It would
thus be unfair to appreciate reiteracion against the
accused. Besides, for the same to exist, it is
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necessary that "the offender has been previously
punished for an offense to which the law attaches
an equal or greater penalty or for two or more
crimes to which it attaches a lighter penalty."
Appellant was earlier convicted for the crime of
homicide which is punishable by reclusion temporal.
That penalty is not equal or greater -- but is
definitely lower -- than that provided for the crime
of ordinary rape which is reclusion perpetua [end].
People v. Molo, G.R. No. L-40757, 24 January
1979
Facts: Venancio Gapisa was sleeping in his house
with his wife Simeona on the evening of 9 April
1976 when appellant Dominador Molo came to
their house. He forced open the door and hacked
Venancio to death.
An information was filed in the CFI or Romblon
against Molo, charging him of murder [qualified
by] treachery, with abuse of superior strength
[ASS], dwelling, recidivism-as he was charged and
convicted for the following:
 Frustrated murder (convicted 2 Sept. 1950);
and
 Murder (27 July 1961)
and Reiteracion, as he was charged & convicted for
the following:
 Grave slander (convicted 5 June 1957);
 Less serious physical injuries (9 October 1959);
 Qualified trespass to dwelling (25 Feb. 1960);
and
 Robbery (1 March 1967).
The CFI convicted Molo as charged, appreciating
the qualifying circumstance of treachery and the
ACs of dwelling, recidivism and reiteration, with the
mitigating circumstance of voluntary surrender.
Issue: Whether his guilt was proven beyond
reasonable doubt.
Ruling:
The credible and unimpeached testimonies of the
victim's widow, Simeona Gapisa, who was an eye-
witness to the fatal incident, and that of Alejandro
Gapisa, the victim's son, and Roman Mangaring, a
neighbor, who both testified on the ante-mortem
statements of the victim, establish the guilt of Molo
beyond reasonable doubt of the crime of murder
qualified by treachery, and aggravated by
circumstances of dwelling, recidivism and
reiteration, it appearing that Molo has been
convicted by final judgment of murder, frustrated
murder, grave slander, less serious physical injuries,
qualified trespass to dwelling a robbery, and, had
served sentences for said crimes [end].
HABITUAL DELINQUENCY: See Art. 62
Elements of habitual delinquency:
1. The crimes the offender committed should
be serious physical injuries, less serious
physical injuries, robbery, theft, estafa, and
falsification;
2. There should be at least three convictions
3. Each convictions must come within ten
year from date of release or last conviction
of the previous crime.
A person is deemed a habitual delinquent, if within a
period of 10 years from the date of is release or last
conviction of the crimes of serious physical injuries,
less serious physical injuries, robbery, theft, estafa
or falsification, he is found guilty of any of the said
crimes a third time or oftener (Art. 62, last par.)..
Effect: Additional penalty shall be imposed in the
maximum period being an aggravating
circumstance.
Limitation: the penalty committed for the crime
plus additional penalty should not exceed thirty
years.
A was charged and convicted of robbery he
served his sentence. Within 10 years from date
of release he committed theft. He served
sentence and again released. Within 10 years he
committed another theft. The judgment become
final and executory. He served again and out of
prison. Within 10 years against he committed
another theft. He is now in trial. Can judge
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impose recidivism and habitual delinquency
both apply?
He is recidivist. At the time he served theft he was
previously convicted of a final judgment of
robbery embraced within the same title of the
code. He is also habitual delinquent, because
within the ten years from the date of his last
release he committed a theft the third time. Both
may be considered because they have different
effects on criminal liability of the offender. The
effect of recidivism is on the theft committed. It
may be offset by mitigating circumstances.
Habitual delinquency will give him an additional
penalty.
HD is considered as a Special Aggravating
Circumstance. Some book says that it is an
Extraordinary Aggravating Circumstance because
the presence of this aggravating circumstance of
HD would mean and imposition of an additional
penalty aside from the penalty imposed on the
offender for the crime that he has committed an
additional penalty would be imposed on him for
being a habitual delinquent. [The] limitation,
however, is that if you add the penalty for the
crime that he has committed and the additional
penalty for being a HD, they must not exceed 30
yrs.[NOTE: On 22 Feb 2017 class lecture, Prosec.
G said that HD is an Extraordinary AC]
QUASI-RECIDIVISM (Art. 160): a Special AC.
A quasi-recidivist is a person, who after having
been convicted by final judgment, commits a
felony before serving out his sentence. The
maximum period shall be imposed.
The first crime may be any crime, but the
second must be a felony.
Example: A while serving a final judgment, he
was found in possession of illegal drugs. He is not
a quasi-recidivist. The second crime is not a
felony, it is a special law.
But if reverse, say he was serving sentence for
possession of illegal drugs and then inside a
crime he killed a co-inmate. This time quasi
recidivism is considered. Maximum period
prescribed by law shall be imposed.
People v. Macariola, G.R. No. L-40775, 24
January 1983
Macariola was serving sentence for robbery when he killed
a fellow prisoner. The SC said that Macariola was a
habitual delinquent.
Facts: Macariola was imprisoned in the New
Bilibid Prison for robbery. One morning he was
gambling with the victim, fellow inmate Romeo
de la Peña, with Macariola winning all of de la
Peña’s money. The latter snatched the money
from Macariola’s hand. Macariola tried to take the
money back from de la Peña who was then seated
on on his "tarima". The victim kicked the
Macariola who was seated on the floor. Both
stood up, Macariola ready to box the victim. The
latter turned to get something from under his
pillow. Macariola stabbed the victim the first
time. The victim ran to a "kubol" pursued by the
accused. The victim went under his "tarima". The
Macariola dragged the victim from under and
repeatedly stabbed him until he could move no
more.
Macariola was charged with Murder, qualified by
treachery and with evident premeditation. The
Circuit Criminal Court of Pasig convicted him as
charged, finding the presence of the ACs of
treachery, evident premeditation and recidivism.
Issue: Whether Macariola is not a recidivist.
Ruling: Appeal DENIED.
Contrary to the stand of the Solicitor General's
Office, the special aggravating circumstance of
quasi-recidivism, under Article 160 of the Revised
Penal Code, is attendant. Macariola committed this
new felony while serving sentence for Robbery
imposed upon him by final judgment. Pursuant to
the same provision, the maximum period of the
penalty prescribed by law for this new offense
should thus be imposed. The presence of the
mitigating circumstance of sufficient provocation
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is of no consequence as quasi-recidivism cannot be
offset by any ordinary mitigating circumstance.
[end].
Other examples for habitualities:
X committed robbery and he was convicted by
final judgment served out sentence and was
released. Within six years from the date of his
release he committed theft, prosecuted and
convicted by final judgment served out the
sentence and was released. Within six months he
committed another crime of Theft, convicted by
final judgment served out his sentence and
released. Within two months from the date of his
release, he again committed a crime of Theft, so
the judge found him guilty beyond reasonable
doubt of this Theft. In imposing the penalty for
this Theft, which of the four forms of habituality
as aggravating circumstances may be considered by
the court?
The court may consider both Recidivism and
Habitual Delinquency. X is a habitual
delinquent, within 10 years from the date of his last
release or conviction of the crime of theft, he
committed another theft. He has been found guilty
three times of the crime of theft. Therefore he is a
Habitual Delinquent.
He is also a Recidivist because he has been
previously convicted by final judgment of the
crime of Theft, and another crime of robbery
which is embraced in the same title of the code.
Therefore he is also a recidivist.
Both aggravating circumstances may be
considered by the court because they have
different effects on the criminal liability of the
offender. If recidivism is not offset by a
mitigating circumstance it would mean the
imposition of the maximum period of penalty
for the crime of theft. But for being a Habitual
delinquent an additional penalty will be
imposed. So both may be considered by the court
in the imposition of penalty.
X committed homicide, convicted by final
judgment he is now serving his sentence at the
New Bilibid Prison. He engaged in a fight, he
inflicted serious physical injuries on another
inmate. So he is now prosecuted for serious
physical injuries. After trial on the merits, the judge
found him guilty beyond reasonable doubt of
serious physical injuries. In imposing the penalty
what forms of habituality as aggravating
circumstances may be considered?
Quasi-Recidivism and Recidivism. He is a
recidivist because at the time of trial for one
offense, he was previously convicted by final
judgment for another crime. He was previously
convicted of Homicide and he committed another
crime which is SPI and was found guilty by final
judgment thereof. The two crimes (homicide and
SPI) are embraced in the same title of the code.
Therefore he is a recidivist.
He is also a quasi-recidivist because at the time he
is serving sentence for a crime, he committed
another felony (serious physical injuries is a
felony).
The effect of recidivism is that it can be offset by
a generic mitigating circumstance, whereas quasi
recidivism cannot be offset by a mitigating
circumstance. Because under Art. 160 is a Special
Aggravating Circumstance, the maximum penalty
prescribed by law shall be imposed. He is both a
recidivist and quasi-recidivist. Can you appreciate
both?
No. You cannot appreciate both because they
have different effects. You better appreciate
recidivism because it can be offset by a mitigating
circumstance.
11. That the crime be committed in consideration of
a price, reward, or promise.
If the price, reward or promise, as a circumstance
is present in the killing of a person, it is not
considered as a generic aggravating person but a
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qualifying aggravating circumstance. It is one of
the qualifying circumstances under Art.248.
This aggravating circumstance should be
considered both against the person who made the
offer and the person who accepted the price,
reward or promise. Therefore, it is to be
considered both against the principal by
inducement and the principal by direct
participation.
To be considered against the principal by
inducement, it is necessary that the price, reward
or promise must be the prime reason for the
principal by direct participation committed the
crime. That without the price, reward or promise,
the principal by direct participation would not
have committed the crime.
12. That the crime be committed by means of
inundation, fire, poison, explosion, stranding of
a vessel or intentional damage thereto,
derailment of a locomotive, or by the use of any
other artifice involving great waste and ruin.
The offender makes use of inundation, fire or
explosion in order to commit the crime. It is a
means to commit the crime. If these means are
used in killing a person, it is not a generic
aggravating circumstance, it is a qualifying
aggravating circumstance under Article 248. It
qualifies the killing to murder.
13. That the act be committed with evident
premeditation.
Evident premeditation is the stubborn adherence
to a decision to commit a crime. It implies a
deliberate plan before or after the commission of
the crime.
Requisites of evident premeditation:
1. The time when the offender determined to
commit the crime;
2. An act manifestly indicating that the culprit
has clung to his determination;
3. Sufficient lapse of time between the
determination and execution, to allow him to
reflect upon the consequences of his acts.
Ex: A slapped B two times in front of the public. B
felt so humiliated so he told A "the next time I see
you, I will kill you!" B went home and searched for
his gun. He found the same and kept it under his
pillow, waiting for the time to kill A. A month has
lapsed. B while walking saw A. upon seeing A, he
immediately run to his house, went to his
bedroom and took the gun under his pillow. He
raised back to A and shot him. Is the aggravating
circumstance of evident premeditation present?
First, the time when the offender determined to
commit the crime. That is the time when B told A
"the next time I see you, I will kill you!"
Second, an overt act manifestly indicating that he
has clung to his determination. He brought a gun.
It is an overt act showing that he has clung to his
determination.
Third, a sufficient lapse time between the
determination and execution. A month has
passed. That is sufficient for him to cool off, to
reflect upon the consequences of his acts.
Therefore, evident premeditation was present in
the commission of the crime.
14. That craft, fraud or disguise be employed.
There are three aggravating circumstances:
1. Craft
2. Fraud
3. Disguise
 Craft: intellectual trickery or cunning resorted
to by the accused
Example: The accused knocked at the door. He
knows that only the maid was at home. He told the
maid that he was a relative of the owners of the
house who came from the province. He was
allowed to enter the house, thereafter he
committed a crime of robbery. There was cunning
or intellectual trickery resorted to by the accused
for he tricked the maid to consummate the crime
of robbery.
 Fraud: Deceit. It is manifested by the use of
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insidious words or machinations resorted to
by the accused so that the offended party will
perform an act that will make the offender do
the crime easily.
Example: The offended party was about to sleep
on the upper portion of the house because the
lower portion is a store. The offender called over
the owner, saying that he was going to buy
something. The owner went down the house and
opened the store. However, upon opening the
store, he was stabbed and robbery was
committed. There was fraud as manifested by the
insidious words or machinations, resorted to by
the offender.
 Disguise: ways and means resorted to by the
accused to conceal his identity. Stockings,
bonnet or anything that could be used so that
one could not be recognized.
If despite disguise he is recognized, rule out
disguise as an aggravating circumstance as it did
not serve its purpose.
15. That advantage be taken of superior strength,
or means be employed to weaken the defense.
Requisites of Abuse of Superior Strength (ASS):
1. That there be a notorious inequality of
forces between the offender and the
offended party in terms of their age, size and
strength;
2. That the offender took advantage of this
inequality of forces to facilitate the
commission of the crime.
 Inequality of forces
Example: Offender enjoys numerical superiority
over that of the offended party
The mere fact that there was numerical
superiority does not automatically mean that
there is abuse of superior strength. Under the
second element, evidence must show that the
offender deliberately took advantage of their
strength to facilitate the commission of the crime.
Fantastico & Villanueva v. Malicse, Sr. &
People, G.R. No. 190912, 12 January 2015
Facts: One afternoon, Elpidio Malicse, Sr. was
under the influence of alcohol & was outside the
house of his sister Isabelita Iguiron. All of a sudden
he heard Isabelita’s son Winston, throwing
invectives at him. Elpidio confronted Isabelita but
she also cursed him, prompting him to slap his
sister. The barangay chairman tried to pacify the
situation, and Elpidio was persuaded to go home.
Thereafter he went back to Isabelita’s house to
offer reconciliation.
Upon reaching Isabelita's house, Elpidio saw the
former's son, Titus (Titus) and her son-in-law Gary
Fantastico (Gary) and asked the two where he can
find their parents. Titus and Gary responded,
“putang ina mo, and kulit mo, lumayas ka, punyeta ka.”
In his anger with the response of Titus and Gary,
Elpidio kicked the door open and saw Isabelita's
elder son, Salvador (Salvador) behind the door
holding a rattan stick or arnis. Salvador hit Elpidio
on the right side of his head that forced the latter
to bow his head but Salvador delivered a second
blow that hit Elpidio on the right eyebrow.
Salvador attempted to hit Elpidio for the third time
but the latter got hold of the rattan stick and the
two wrestled on the floor and grappled for the
possession of the same rattan stick. Then Titus ran
towards the two and sprayed something on
Elpidio's face. Not being able to free himself from
the clutches of Salvador and to extricate himself,
Elpidio bit Salvador's head.
Gary hit Elpidio on the right side of his head with
a tomahawk axe when the latter was about to go
out of the house. Elpidio tried to defend himself
but was unable to take the tomahawk axe from
Gary. Elpidio walked away from Titus but Gary,
still armed with the tomahawk axe and Salvador,
with his arnis, including Titus, chased him.
Roland (Rolly) Villanueva, without any warning, hit
Elpidio on the back of his head with a lead pipe
which caused the latter to fall on the ground.
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Elpidio begged his assailants to stop, but to no
avail. Salvador hit him countless times on his
thighs, legs and knees using the rattan stick. While
he was simultaneously being beaten up by
Salvador, Titus, Gary, Rolly, Nestor, Eugene and
Tommy, he tried to cover his face with his arm.
Gary hit him with the tomahawk axe on his right
leg, between the knees and the ankle of his leg,
which caused the fracture on his legs and knees.
Rolly hit Elpidio's head with a lead pipe, while
Tommy hit him with a piece of wood on the back
of his shoulder. They only stopped when a
bystander fainted because of the incident. Elpidio
then pretended to be dead. He was then rushed to
the hospital.
A case for attempted murder was filed against
Salvador, Titus, Saligan, Tommy, Nestor, Eugene
and petitioners Fantastico & Villanueva. The
information alleged that they acted with treachery
and took advantage of superior strength.
The RTC of Manila acquitted Titus, Saligan and
Tommy but convicted Fantastico and Villanueva
of attempted murder, and the CA affirmed the
conviction.
Issue: Whether treachery and ASS are not present.
Ruling:
There was an abuse of superior strength
The RTC, however, was correct in appreciating the
qualifying circumstance of abuse of superior
strength, thus: xxx it was a lopsided attack as the
victim was unarmed, while his attackers were
all armed (rattan stick, tomahawk and lead
pipe). And the victim was also drunk. This
establishes the element of abuse of superior
strength. The suddenness of the blow inflicted
by Salvador on Elpidio when he entered the
premises show that the former was ready to hit
the victim and was waiting for him to enter. It
afforded Elpidio no means to defend himself.
And Salvador consciously adopted the said
actuation. He hit Elpidio twice on the head.
Abuse of superior strength is present whenever
there is a notorious inequality of forces between
the victim and the aggressor, assuming a situation
of superiority of strength notoriously
advantageous for the aggressor selected or taken
advantage of by him in the commission of the
crime." "The fact that there were two persons who
attacked the victim does not per se establish that
the crime was committed with abuse of superior
strength, there being no proof of the relative
strength of the aggressors and the victim." The
evidence must establish that the assailants
purposely sought the advantage, or that they had
the deliberate intent to use this advantage. "To take
advantage of superior strength means to purposely
use excessive force out of proportion to the means
of defense available to the person attacked." The
appreciation of this aggravating circumstance
depends on the age, size, and strength of the parties
[end].
People v. Nazareno, G.R. No. 196434, 24
October 2012
Facts: One day David Valdez, Magallanes and
Francisco attended the wake of a friend. There they
drank with the accused Nazareno and Saliendra. A
heated argument ensued between Magallanes and
Saliendra, but they were eventually pacified.
David, Magallanes, and Francisco returned to the
wake the next day. Nazareno and Saliendra also
arrived and told the three not to mind the previous
night's altercation. At around 9:30 in the evening,
while David, Francisco, and their friend, Aida
Unos were walking on the street, Nazareno and
Saliendra blocked their path. Nazareno boxed
Francisco who fled but Saliendra went after him
with a balisong. Francisco, who succeeded in hiding
saw Nazareno hit David on the body with a stick
while Saliendra struck David's head with a stone.
David ran towards a gasoline station but Nazareno
and Saliendra, aided by some barangay tanods, caught
up with him. As David fell, the barangay tanods took
over the assault. Afterwards, Unos brought David
to the hospital, but David died.
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Nazareno and Saliendra were charged with murder
before the RTC of Manila. Since Saliendra was at-
large, only Nazareno was tried and subsequently
convicted of murder, qualified by ASS and
aggravated by treachery. The CA affirmed the
RTC but held that there was no treachery.
Issue: Whether ASS was not present the killing of
David.
Ruling: Petition DENIED.
There is abuse of superior strength when the
aggressors purposely use excessive force rendering
the victim unable to defend himself. The notorious
inequality of forces creates an unfair advantage for
the aggressor.
Here, Nazareno and Saliendra evidently armed
themselves beforehand, Nazareno with a stick and
Saliendra with a heavy stone. David was unarmed.
The two chased him even as he fled from them.
And when they caught up with him, aided by some
unnamed barangay tanods, Nazareno and Saliendra
exploited their superior advantage and knocked the
defenseless David unconscious. He evidently died
from head fracture caused by one of the blows on
his head [end].
16. That the act be committed with treachery
(alevosia).
There is treachery when the offender
commits any of the crimes against the person,
employing means, methods, or forms in the
execution thereof which tend directly and
specially to insure its execution, without risk to
himself arising from the defense which the
offended party might make.
The essence of treachery is the suddenness
and unexpectedness of the act to unexpecting
and unarmed victim who has not given the
slightest provocation. The victim must be
totally without defense.
If the victim was able to put out any defense, no
Elements of treachery:
1. That the offender deliberately adopted the
particular means, method or form of attack
employed by him;
2. That at the time of the attack, the victim
was not in a position to defend himself.
But see Fantastico v. Malicse, Sr. and other
assigned cases:
1. the employment of means of execution
that gives the persons attacked no
opportunity to defend themselves or
retaliate; and
2. the means of execution were deliberately
or consciously adopted.
matter how minor, treachery is not present. Spur
of the moment attacks are not treacherous, they
lack element No. 1.
People v. Feliciano, Jr., et al., G.R. No. 196735,
5 May 2014 [See pg. 76]
Facts: Seven members of the Sigma Rho fraternity
were eating lunch in UP Diliman when they were
suddenly attacked by several masked men who
were armed with baseball bats and lead pipes.
Some sustained injuries which required
hospitalization, but one of them-Venturina-died
due to traumatic head injuries.
Informations for murder for Venturina’s death, as
well as the attempted murder and frustrated
murder of some Sigma Rho members were filed in
the RTC of QC against several members of
Scintilla Juris fraternity, namely Feliciano, Alvir,
Soliva, Zingapan (appellants Feliciano, et al.) and
several others. The information alleged the
attendance of treachery, evident premeditation
and ASS.
The RTC convicted Feliciano, et al. of murder and
attempted murder, and acquitted the other co-
accused, holding that Feliciano, et al. were
positively identified by witnesses as the attackers.
It held that the ACs of ASS, aid of armed men and
treachery were present.
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The CA affirmed the RTC ruling, but modified
their criminal liabilities. It ruled out the presence
of treachery.
Issue: Whether treachery attended the attack.
Ruling:
As correctly found by the trial court and the
appellate court, the offense committed against
Dennis Venturina was committed by a group that
took advantage of its superior strength and with
the aid of armed men. The appellate court,
however, incorrectly ruled out the presence of
treachery in the commission of the offense.
There is treachery when the offender commits any
of the crimes against persons, employing means,
methods, or forms in the execution, which tend
directly and specially to insure its execution,
without risk to the offender arising from the
defense which the offended party might make.
The essence of treachery is that the attack
comes without a warning and in a swift,
deliberate, and unexpected manner, affording
the hapless, unarmed, and unsuspecting
victim no chance to resist or escape. For
treachery to be considered, two elements must
concur: (1) the employment of means of execution
that gives the persons attacked no opportunity to
defend themselves or retaliate; and (2) the means
of execution were deliberately or consciously
adopted. (Emphasis supplied).
The appellate court, in affirming the conviction of
the accused- appellants, ruled that contrary to the
findings of the trial court, there was no treachery
involved. In particular, they ruled that although the
attack was sudden and unexpected, “[i]t was done
in broad daylight with a lot of people who could
see them” and that “there was a possibility for the
victims to have fought back or that the people in
the canteen could have helped the victims.”
This reasoning is clearly erroneous. The victims in
this case were eating lunch on campus. They were
not at a place where they would be reasonably
expected to be on guard for any sudden attack by
rival fraternity men.
The victims, who were unarmed, were also
attacked with lead pipes and baseball bats. The only
way they could parry the blows was with their arms.
In a situation where they were unarmed and
outnumbered, it would be impossible for them to
fight back against the attackers. The attack also
happened in less than a minute, which would
preclude any possibility of the bystanders being
able to help them until after the incident.
The swiftness and the suddenness of the attack
gave no opportunity for the victims to retaliate or
even to defend themselves. Treachery, therefore,
was present in this case [end].
Note: If treachery is present in robbery with
homicide, it is appreciated only in the killing. Note
that “homicide” here is used in the generic sense;
it includes murder.
Also, in People v. Feliciano, Jr, et al.: when ASS
& treachery are present, treachery absorbs ASS.
Also: nighttime is absorbed by treachery.
Examples of treachery:
A was about to stab B but he was able to parry the
blow, that is already a defense on his part. He was
able to run away, that is already considered as a
defense. Treachery is no longer present. It is
necessary that the offended party or the victim
must be totally without defense.
What if the attack is a frontal attack?
Even if it is a frontal attack, if it is so sudden,
unexpected, such that the offended party would
not be aware of it and was not able to put up any
defense, there is still treachery (People v.
Matibag).
People v. Matibag, G.R. No. 206381, 25 March
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2015
Facts: Matibag was charged in the RTC of
Batangas City with murder with the qualifying
circumstance of treachery and special aggravating
circumstance of the use of unlicensed firearm for
the killing of Enrico Clar de Jesus Duhan.
One evening, Duhan, who just came from a
meeting with the other officers of the
homeowners’ association a subdivision, was
walking along the street when Matibag confronted
Duhan, and asked, “ano bang pinagsasasabi mo?”
Duhan replied “wala,” and without warning,
Matibag delivered a fist blow hitting Duhan on the
left cheek and causing him to teeter backwards.
Matibag then pulled out his gun and shot Duhan,
who fell face-first on the pavement. While Duhan
remained in that position, Matibag shot him
several more times.
Matibag alleged that he was at his friend’s despedida
party when Duhan arrived. Wanting to settle a
previous misunderstanding, Matibag extended his
hand to Duhan as a gesture of reconciliation.
However, Duhan pushed it away and said, “putang
ina mo, ang yabang mo,” thereby provoking Matibag
to punch him in the face. Matibag saw Duhan pull
something from his waist and fearing that it was a
gun and Duhan was about to retaliate, Matibag
immediately drew his own gun, shot Duhan, and
hurriedly left the place.
The RTC convicted Matibag as charged,
appreciating both treachery and the use of an
unlicensed firearm. The CA affirmed the RTC
decision in toto.
Issue: Whether the CA incorrectly upheld the
conviction for murder.
Ruling: Appeal DENIED.
The essence of treachery is the sudden and
unexpected attack, without the slightest
provocation on the part of the person attacked. In
People v. Perez, it was explained that a frontal attack
does not necessarily rule out treachery. The
qualifying circumstance may still be
appreciated if the attack was so sudden and so
unexpected that the deceased had no time to
prepare for his or her defense.
In this case, the prosecution was able to prove that
Matibag, who was armed with a gun, confronted
Duhan, and without any provocation, punched and
shot him on the chest. Although the attack was
frontal, the sudden and unexpected manner by
which it was made rendered it impossible for
Duhan to defend himself, adding too that he was
unarmed. Matibag also failed to prove that a heated
exchange of words preceded the incident so as to
forewarn Duhan against any impending attack
from his assailant. The deliberateness of Matibag’s
act is further evinced from his disposition
preceding the moment of execution. As the RTC
aptly pointed out, Matibag was ready and destined
to effect such dastardly act, considering that he had
an axe to grind when he confronted Duhan,
coupled with the fact that he did so, armed with a
loaded handgun. Based on these findings, the
Court concludes that treachery was correctly
appreciated [end].
A and B were walking towards each other. When
near enough, B suddenly stabbed A. It was a
frontal attack yet obviously there was treachery.
A was totally defenseless and B deliberately and
consciously adopted the means in the commission
of the crime.
Treachery and conspiracy may be appreciated
together.
People v. Gunda, G.R. No. 195525, 5 February
2014
Treachery is a qualifying circumstance which
would qualify the killing as murder, while
conspiracy is neither a qualifying circumstance
[nor] a generic aggravating circumstance to
warrant the imposition of the supreme penalty
of death.
Facts: One afternoon, the victim Eladio Globio,
Sr., and his son Eladio Jr., were walking along a
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trail. Suddenly, when Eladio Jr. was ahead of his
father, the latter was waylaid by appellant Gunda
and his unidentified companions. The John Does
held Eladio Sr.’s arms while Gunda stabbed him
several times. Fearing for his life, Jr. ran away.
An information was filed in the RTC of Borongan,
Easter Samar, charging Gunda and the John Does
of murder, alleging that they acted in conspiracy
and with evident premeditation and treachery. The
John Does remained at large, and only Gunda was
arraigned.
The RTC convicted Gunda of murder and
sentenced him to suffer the death penalty, holding
that treachery and conspiracy are qualifying
circumstances.
The CA affirmed the conviction but lowered the
penalty to reclusion perpetua, holding that treachery
is a qualifying, not an aggravating circumstance,
and that conspiracy is neither a qualifying nor a
generic aggravating circumstance which would
warrant the imposition of the death penalty.
Ruling: Appeal DISMISSED.
There is also no doubt in our mind that the attack
on the victim was attended by treachery. The
victim was unarmed and had no inkling of the
impending attack on his person. In fact, he was just
on his way home together with his son Eladio Jr.
The victim was attacked by Gunda from behind
with a blow to his head with a wooden pole. His
cohorts then held the victim’s arms rendering him
helpless and immobile. In such position, there is
no opportunity for the victim to escape or even
offer a feeble resistance. Gunda then delivered the
coup de grâce by stabbing the victim multiple times.
Undoubtedly, treachery qualified the killing to
murder. “There is treachery when the offender
commits [a crime] against the person, employing
means, methods or forms in the execution thereof
which tend directly and specially to insure its
execution, without risk to himself arising from the
defense which the offended party might make.” As
regards conspiracy, the CA correctly ruled that it is
not a circumstance which would aggravate or
qualify the crime [end].
A prisoner arrived at the police station. Upon
removal of his handcuffs, he immediately grab the
pistol of the arresting officer. Thereafter he went
out pointing the said gun. Upon seeing a woman
who was getting inside the PNP station, he shot
the woman. The woman died. Is the aggravating
circumstance of treachery present?
The aggravating circumstance of treachery is not
present [as] it is a mere chance encounter. The
first element is wanting. There is no showing
the offender deliberately adopted the
particular means, method or form of attack
employed by him in killing the woman.
[If the situation is that the prisoner was left in a
room and upon the cop’s return, the prisoner
forcibly took the gun & shot the cop, there is
treachery].
Fantastico & Villanueva v. Malicse, Sr. &
People, G.R. No. 190912, 12 January 2015
Facts: See facts in ASS, pg. 147.
Issue: Whether treachery and ASS are not present.
Ruling: There was no Treachery
For treachery to be considered, two elements must
concur:
(1) the employment of means of execution that
gives the persons attacked no opportunity to
defend themselves or retaliate; and
(2) the means of execution were deliberately or
consciously adopted.
From the facts proven by the prosecution, the
incident was spontaneous, thus, the second
element of treachery is wanting. The incident,
which happened at the spur of the moment,
negates the possibility that the petitioners
consciously adopted means to execute the crime
committed. There is no treachery where the attack
was not preconceived and deliberately adopted but
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was just triggered by the sudden infuriation on the
part of the accused because of the provocative act
of the victim [end].
People v. Vilbar, G.R. No. 186541, 1 February
2012
Facts: One evening, Vilbar was in a drinking spree
with three companions in a well-lit area of the
Ormoc Public Market. One of his companions
urinated at one of the tables in front of the nearby
stall of Maria Liza Patricio. Her husband, the
victim Guilbert Patricio, admonished the urinating
man when Vilbar rose from his seat and stabbed
Guilbert.
Vilbar was charged with murder, with treachery
and evident premeditation, in the RTC of Ormoc
City, and he was found guilty as charged. The CA
did not find that treachery attended the stabbing
and downgrade the crime to homicide.
Issue: Whether treachery attended the stabbing.
Ruling:
We agree with the Court of Appeals that accused-
appellant is guilty only of homicide in the absence
of the qualifying circumstance of treachery.
In a number of cases, surveyed in People v. Rivera,
we ruled that treachery cannot be appreciated
simply because the attack was sudden and
unexpected. “We cannot presume that
treachery was present merely from the fact that
the attack was sudden. The suddenness of an
attack, does not of itself, suffice to support a
finding of alevosia, even if the purpose was to
kill, so long as the decision was made all of a
sudden xxx The circumstance that an attack
was sudden and unexpected to the person
assaulted did not constitute the element of
alevosia necessary to raise homicide to
murder, where it did not appear that the
aggressor consciously adopted such mode of
attack to facilitate the perpetration of the
killing without risk to himself.” Similar to Rivera
and the cases cited therein, the prosecution in the
instant case merely showed that Vilbar attacked
Guilbert suddenly and unexpectedly, but failed to
prove that Vilbar consciously adopted such mode
of attack to facilitate the perpetration of the killing
without risk to himself.
As aptly observed by the Court of Appeals: “While
it appears that the attack upon the victim was
sudden, the surrounding circumstances attending
the stabbing incident, that is, the open area, the
presence of the victim's families and the attending
eyewitnesses, works against treachery. If accused-
appellant wanted to make certain that no risk
would come to him, he could have chosen another
time and place to stab the victim. Yet, accused-
appellant nonchalantly stabbed the victim in a
public market at 7:00 o'clock in the evening. The
place was well-lighted and teeming with people. He
was indifferent to the presence of the victim's
family or of the other people who could easily
identify him and point him out as the assailant. He
showed no concern that the people in the
immediate vicinity might retaliate in behalf of the
victim. In fact, the attack appeared to have been
impulsively done, a spur of the moment act in the
heat of anger or extreme annoyance. There are no
indications that accused-appellant deliberately
planned to stab the victim at said time and place.
Thus, we can reasonably conclude that accused-
appellant, who at that time was languishing in his
alcoholic state, acted brashly and impetuously in
suddenly stabbing the victim. Treachery just
cannot be appreciated” [end].
People v. Dulin, G.R. No. 171284, 29 June 2015
Facts: See page 89, case on Justifying
Circumstances-self-defense.
Issue: Whether treachery attended the stabbing.
Ruling: The RTC & CA erred in appreciating
the attendance of treachery.
Based on the established facts, Dulin and
Batulan grappled for control of the weapon
Batulan had initially wielded against Dulin, who
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divested Batulan of it and ran with it into the
house of Danao, with Batulan in immediate
pursuit. They continued to grapple for the
weapon inside the house of Danao, and it was
at that point when Dulin stabbed Batulan
several times. Under the circumstances,
treachery should not be appreciated in the
killing of Batulan because the stabbing by
Dulin did not take Batulan by surprise due
to his having been sufficiently forewarned of
Dulin’s impending assault, and being thus
afforded the opportunity to defend himself, or
to escape, or even to recover control of the
weapon from Dulin. The essence of
treachery is that the attack comes without
warning, or is done in a swift, deliberate
and unexpected manner, affording the
hapless, unarmed and unsuspecting victim
no chance to resist or to escape, without
the slightest provocation on the part of the
victim. The mode of attack must not spring
from the unexpected turn of events.
Consequently, Dulin should be liable only for
homicide [end].
A was found on the street. He has 10 stab wounds
all at the back. No one saw the commission of the
crime. However A witness claimed that he saw X
leaving the place with a weapon full of blood.
X was arrested. Is treachery present?
No, treachery is not present because the witness
failed to observe the start or the commencement
of the attack. For treachery to arise it is
necessary that he must be present at the
commencement of the attack in order to know
whether the offended party was totally
defenseless.
*People v. Bokingco and Leviste cases: Since no
one saw the commencement of the attack,
treachery is not present. [But see below People
v. Tabarnero].
The witness saw A and B were holding on X. Both
his hands were held at the back by A and B. He was
being attacked by Y. The witness did not see how
the attack commenced but only that he was
attacked by Y while his hands were held by A and
B. Is there treachery?
Yes, in the case of People v. Tabarnero, SC held
that there was treachery. The witness did not
see the commencement of the attack,
however, he saw that there was restraint on
the person of X. What the witness saw was that
the hands of the victim were being held at the
back while he was being attacked. That suffices
because there was restraint on the person of the
victim. The SC held that even the witness did not
observe the commencement of the attack, since
there was restraint on his person, he was totally
defenseless, treachery is present according to the
Supreme Court. [Tabarnero: there is treachery
where the victim was stabbed in a defenseless
situation, as when he was being held by the
others while he was being stabbed.]
X went to the house of Y, because Y borrowed
money from X. So X told Y that he should pay the
money now. But Y said that he has no money, so
X got so mad and ordered his two body guards to
hold Y, and while the two body guards held the
hands of Y at the back, X repeatedly stabbed Y to
death. X and his body guards are now prosecuted
for murder. The information alleged two
qualifying aggravating circumstances, Treachery
and abuse of superior strength. Are both present?
Only abuse of superior strength is present and
treachery is absorbed (?) and . Treachery is not
present because the first element (offender
deliberately adopted the particular means, method
or form of attack employed by him) is absent. The
commission of the said crime of killing happened
at the spur of the moment, when Y failed to pay,
X got mad, it was only at that time that X has
decided, therefore he did not deliberately adopted
the particular means, method or form of attack
employed. The first element being absent
treachery would not lie.
There is obviously abuse of superior strength.
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There is notorious inequality of forces. Two men,
the bodyguards were holding the hands of Y as X
repeatedly stabbed him. Obviously these three
persons took advantage of their superiority of
strength in order to facilitate the commission of
the crime. Both elements for the abuse of superior
strength is present [See Fantastico v. Malicse, Sr.
as it has similar facts].
X is the driver of Atty.Y and after bringing Atty. Y
to the office for attending a court hearing. X talked
to the secretary of Atty.Y and X told the secretary
"if I couldn't control myself, I could kill Atty.Y, he
has been a very abusive employer, giving me bad
food, insulting me. If I lost control of myself I'm
going to kill him." So X narrated that to the
Secretary of Atty.Y. After came back from the
court at nighttime X brought Atty.Y at his house.
Atty. Y alighted to the house. Meanwhile X
brought the attaché case to the house, and
thereafter went to the kitchen, got a water and
took a kitchen knife, went to the bedroom of Atty.
Y, then X stabbed Atty.Y repeatedly. What
aggravating circumstances attended the
commission of the crime?
There was no evident premeditation, the time that
the offender was determined to commit the crime,
his utterances or narration to the secretary cannot
be considered as determination to kill because he
said "if I lost control" or "pag hindi ako
nakapagpigil." Therefore he is not determined to
kill. And the second element, there is no overt act
that he has clung to his determination. Likewise
there is no sufficient lapse of time, he said that to
the secretary in the morning and he committed the
crime in the evening. When he brought back the
Atty. to the house he immediately committed the
crime.
There was Dwelling in the commission of the
crime. The driver could have killed the Atty. in any
other place, while in the car or in the office, while
alighting the vehicle but he killed the lawyer inside
the latter's house, therefore there was disrespect in
the dwelling of the said atty.
There was Treachery in the commission of the
crime. He went to the kitchen took the kitchen
knife and thereafter went to the room of Atty. he
deliberately and consciously adopted the means to
be used in the commission of the crime. Upon
opening the door he immediately stabbed the
victim, the victim was totally without or not in a
position to defend himself. Therefore treachery
was present.
There was also Abuse of Confidence in the
commission of the crime. The Atty. trusted the
driver, in fact he was the one bringing him to and
from office/house, and by reason of said trust and
confidence it facilitated the commission of the
crime.
What if, in a case for murder, treachery, ASS,
cruelty, price, reward or promise were all proven?
The crime is Murder qualified by treachery.
Cruelty & price, reward or promise are treated as
generic ACs, thus the maximum penalty shall be
imposed, which is death. However, death penalty
is suspended, so the proper penalty is reclusion
perpetua.
17. That means be employed or circumstances
brought about which add ignominy to the
natural effects of the act.
Ignominy: a moral circumstance which adds to the
injury suffered by the victim. It is humiliation,
embarrassment, moral killing.
It pertains to the moral order, which adds
disgrace to the material injury caused by the
crime. Ignominy adds insult to injury or adds
shame to the natural effects of the crime. Ignominy
shocks the moral conscience of man (GN 2016).
People vs. Domingo
A raped B. before killing B, A raped B in the
presence of his father. Before A raped B in the
presence of his father, he used a flashlight to
examine the genitalia of B likewise in the
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presence of the father. Is the aggravating
circumstance of ignominy present?
Yes it is present. The examination of the genitalia
of the victim is not necessary in the commission
of the crime of rape. Such act of the offender
merely add to the moral pain, moral suffering of
the victim, especially it was done in the presence
of the father. Therefore ignominy is present.
People v. _____________________
A raped B. B filed a case of raped against A. when
B testified in court, that when A raped her, he used
the dog style position. The entry of the penis was
from behind, not the normal act in having sexual
intercourse. RTC did not consider ignominy.
However, the SC held that it was erroneous for the
RTC not to have considered ignominy as an
aggravating circumstance.
People vs Fernandez
A woman victim of rape was found in a vacant lot.
Her genitalia was full of mud. SC held that there
was ignominy. The placing of mud in the genitalia
add moral pain, moral suffering to the victim.
18. That the crime be committed after an unlawful
entry.
There is an unlawful entry when an
entrance is effected by a way not intended for
the purpose.
NOTE: unlawful entry is inherent in the crimes of
trespass to dwelling & robbery with force upon
things. But it is aggravating in the crime of robbery
with violence against or in intimidation of persons
(GN 2016).
Prosec. G: the door is the [only means] intended
for entry. So if you break a window, make an
opening in the wall, it is unlawful entry. Even if
one of the residents made a secret passageway
through a wall, and the accused used this
passageway to enter, Art. 18 is attendant.
19. That as a means to the commission of a crime a
wall, roof, floor, door, or window be broken.
Unlawful Entry (18) Breaking Wall (19)
Presupposes that there Involves the breaking
is no breaking as by of the enumerated
entry through the parts of the house.
window.
(GN 2016)
Example:
A was on vacation. B knew that A was on vacation.
He saw that the window on the third floor of the
house was open. He got a ladder and placed it in
the window, climbed it and entered the house.
Then he took the valuables, got out through the
window. Is the aggravating circumstance of
unlawful entry present?
No, it is not present. The reason is that, the fact
that a crime was committed after an unlawful
entry is inherent in the commission of the crime
because the crime committed is robbery under
Art. 299, robbery with use of force upon things.
The essence of robbery, is in the act of unlawful
entry. The entry was done through a means not
intended for anything that is to a window. Thus,
the fact that a crime was committed after an
unlawful entry is not an aggravating
circumstance.
A was passing by the house of B. Suddenly he saw
through the window, two cellphones being
charged. Interested on the cellphones, he broke
the window entered his hand and took the
cellphones. Is the aggravating circumstance, that
as a means to the commission of the crime the
window was broken present?
Yes it is present because the crime committed is
theft only and not robbery. The crime committed
was theft not robbery because the offender did
not enter the house. For robbery to arise it is
necessary that the offender enter the said place
and take the cellphones. He only broke the
window, entered his hand and took the
cellphones. Therefore the crime committed is
theft. In theft, the fact that a window was broken
is not inherent it is an aggravating circumstance.
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X entered the house of Y but passing thru an open
window. Once inside he killed Y. What is the crime
committed? What is the aggravating circumstance?
The crime committed is murder and the
aggravating circumstance of unlawful entry. There
is unlawful entry because the crime of killing of the
said victim was done after passing thru the
window. The crime was committed after an
unlawful entry.
What if in the same problem, X entered the house
of Y but passing thru the window. The intention
was to commit robbery he got the valuables but
the owner is awakened. So X upon seeing Y, who
cried for help, shot Y. Thereafter he left again
passing thru the window. What crime is
committed? Is the unlawful entry an aggravating
circumstance?
The crime is Robbery with homicide. The unlawful
entry is not considered an aggravating
circumstance. It is inherent in the commission of
the crime.
X made an opening on the roof of Y and thereafter
X with the use of a rope with a hook was able to
take the valuables on top of the table inside the
same house. What crime is committed? What is the
aggravating circumstance?
The crime committed is Theft. Unlawful entry is
the aggravating circumstance. The roof was
broken as a means to commit the crime in order
to get the things on the table.
In order to bring about Robbery, the entire body
of the offender must enter the place. So even if the
offender makes some opening, or broke any roof,
floor, etc. but he did not enter the said opening,
and just devise means to get the things, the crime
is only THEFT. Unlawful entry is an aggravating
circumstance and not inherent in the commission
of the crime.
20. That the crime be committed with the aid of
persons under fifteen years of age or by means
of motor vehicles, motorized watercraft,
airships, or other similar means. (As amended
by RA 5438).
If the crime committed makes use of minors
under 15 years of age, it shows the greater
perversity of the offender because he knows that
minors cannot be arrested. Persons below 15
years of age cannot be prosecuted, it is among the
exempting circumstances. Therefore, it shows
greater perversity.
If the crime is committed with the use of motor
vehicle in killing a person, it is a qualifying
aggravating circumstance under article 248. If the
motor vehicle is used in the commission of any
other crime, it is a mere generic aggravating
circumstance.
X was driving a car. Thereafter, the traffic lights
went red so he stop. Suddenly a motor cycle
appeared near him. There were two persons riding
the motor cycle, the person on the back started to
shoot him. X died. In the commission of the said
crime, is the aggravating circumstance of use of
motor vehicle present?
It is present. The said killing is done by means of
a motor vehicle.
Two persons riding a motorcycle approached X.
The backrider suddenly grabbed X’s handbag and
thereafter sped away. Is the AC of use of motor
vehicle present?
A: Yes. Their use of the motorcycle facilitated the
commission of the crime, and it was committed
using the motorcycle. It would be hard for them
to approach X and escape afterwards without the
vehicle.
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21. That the wrong done in the commission of the
crime be deliberately augmented by causing
other wrong not necessary for its commission.
Elements of Cruelty (Art. 14, Par. 21):
1. That at the time of the infliction of the
physical pain, the offended party is still
alive.
2. That the offender enjoys and delights in
seeing his victim suffer gradually by the
infliction of the physical pain.
If ignominy refers to the moral pain, cruelty
pertains to the additional physical pain other than
that which is necessary in the commission of the
crime.
Ignominy Cruelty
Victim suffered moral Victim suffered
pain. physical pain or
physical suffering.
The victim can either Necessary that the
be alive or dead. victim is alive.
Example:
A person was found dead with several wounds all
over his body. Is the fact that he has several
wounds on different parts of his body mean that
there was cruelty?
No. the fact that there was 25-50 wounds cannot
immediately mean that there was cruelty in the
commission of the crime. It is necessary to
determine, whether first, he was still alive at the
time the physical pain was inflicted; second, did
the offender enjoy and delight in seeing his victim
suffer gradually by the infliction of the physical
pain? If there were defense wounds, cruelty
cannot be appreciated.
Aggravating Circumstances other than those
in Article 14
 Use of unlicensed firearms (PD 1866 as
amended by RA 8294 and RA 10591) as a
special aggravating circumstance.
A killed B by means of an unlicensed firearm. B
died and A was arrested. The firearm was
recovered. Two cases were filed against A:
murder or homicide as the case maybe and illegal
possession of unlicensed firearm under PD. 1866
as amended by RA 8294. Are the charges correct?
No, under section 1 of PD. 1866 as amended by
RA 8294 if homicide or murder is committed with
the use of an unlicensed firearm, such use of
unlicensed firearm shall be considered as an
aggravating circumstance. Therefore, there shall
only be the charge of murder or homicide as the
case maybe. The use of the unlicensed firearm
shall be alleged in the information as an
aggravating circumstance.
A killed B by means of an unlicensed firearm. An
information was filed charging A with the crime
of homicide. It is alleged in the information that A
shot B with the use of unlicensed firearm. During
trial the same was proven. Judge convicted A for
the crime of murder and considered the use of
unlicensed firearm as a generic aggravating
circumstance. The judge opined that Section 1 of
PD. 1866 as amended by RA 8294 is silent as to
what kind of aggravating circumstance the use of
firearms. The principle that penal laws should be
construed liberally in favor of the accused should
be applied. Is the judge correct?
No, the judge is wrong because the SC has long
ruled that the use of the unlicensed is a special
aggravating circumstance which cannot be offset
by any mitigating circumstance.
A father and son had an argument. The son shot
his father with an unlicensed firearm. The father
died. Two cases were filed against the son:
parricide and illegal possession of unlicensed
firearm. The fiscal opined that under section 1 of
PD. 1866 as amended by RA 8294 if homicide or
murder is committed with the use of an
unlicensed firearm, such use of unlicensed
firearm shall be considered as an aggravating
circumstance. It did not provide for parricide,
therefore two cases should be filed. Is the fiscal
correct?
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No, the fiscal is wrong. SC has already ruled, that
the words homicide and murder in the said law is
used in its generic sense. Therefore it includes all
kinds of killing where the penalty prescribed by
law is the same as murder which is reclusion
perpetua to death. The penalty prescribed by law
is reclusion perpetua to death.
X and Y, father and son had an argument. The son
took out his pistol, an unlicensed and unregistered
pistol and shot his father. The father died. What
crime is committed? How will you consider to the
use of an unlicensed firearm in the commission of
the crime.
The crime committed is Parricide. The use of the
unlicensed firearm is considered as a special
aggravating circumstance.
Section 29, RA 10951: Use of Loose Firearm in the
Commission of a Crime. – The use of a loose
firearm, when inherent in the commission of a
crime punishable under the Revised Penal Code
or other special laws, shall be considered as an
aggravating circumstance: Provided, That if the
crime committed with the use of a loose firearm is
penalized by the law with a maximum penalty which
is lower than that prescribed in the preceding section
for illegal possession of firearm, the penalty for
illegal possession of firearm shall be imposed in lieu
of the penalty for the crime
charged: Provided, further, That if the crime
committed with the use of a loose firearm is
penalized by the law with a maximum penalty which
is equal to that imposed under the preceding section
for illegal possession of firearms, the penalty
of prision mayor in its minimum period shall be
imposed in addition to the penalty for the crime
punishable under the Revised Penal Code or other
special laws of which he/she is found guilty.
If the violation of this Act is in furtherance of, or
incident to, or in connection with the crime of
rebellion of insurrection, or attempted coup d’
etat, such violation shall be absorbed as an
element of the crime of rebellion or insurrection, or
attempted coup d’ etat.
If the crime is committed by the person without
using the loose firearm, the violation of this Act
shall be considered as a distinct and separate
offense.
If the use of the unlicensed firearm is inherent in
the commission of the crime punishable under the
RPC or under Special Penal Laws, it is considered
as an AGGRAVATING CIRCUMSTANCE.
Whatever be the crime committed, whether
under the RPC or SPL, if the use of such firearm
is inherent in commission of the crime, is
considered as an aggravating circumstance.
X stabbed why to death, thereafter X was arrested.
When a body search was conducted, a firearm was
found. What crime is committed by X?
Two crimes are committed. Homicide and Illegal
Possession of Loose Firearm. SEC. 29 (3), “If the
crime is committed by the person without using the loose
firearm, the violation of this Act shall be considered as a
distinct and separate offense”. Thus 2 cases must be
filed.
X carnapped Y’s car. He also shot to death Y with
a loose firearm. He was charged with qualified
carnapping and illegal possession of loose firearm.
Are the charges correct?
A: No, it should only be qualified carnapping. In
the killing of Y, the use of the loose firearm was
inherent in the killing, hence under Sec. 29, 1st par
of RA 10591, the use of the loose firearm is a
special AC.
NOTE: Even if the firearm is licensed, if it is used
in the commission of a crime, it is considered a
loose firearm. This is covered by the definition of
“loose firearm” (1 March 2017).
 Use of dangerous drugs as a qualifying
AC (Sec. 25, RA 9165)
A killed B. thereafter he chopped the body of B.
because of the manner employed by the accused
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in killing the victim, the police suspected that he
was under the influence of prohibited drugs. He
was brought to the PNP crime laboratory for
forensic examination. The results provided that
he was under the influence of prohibited drugs.
What is the effect of the positive result of the said
examination on the commission of the crime of
the said accused?
Under Section 25 of RA 9165, when a crime is
committed by an offender under the influence of
dangerous drugs, such state shall be considered
as a qualifying aggravating circumstance.
Therefore, it will bring about a change in the
nature of the crime to a more serious crime with
a higher penalty.
The accused after brutally killing the victim and the
police suspected he was under the influence of
drugs. He was subjected to drug test, and was
found to be under the influence of dangerous
drugs. What is the effect of such positive finding
on the criminal liability of the crime?
Under Sec. 25 of RA9165, Qualifying Aggravating
Circumstances in the Commission of a Crime by an
Offender Under the Influence of Dangerous Drugs. -
Notwithstanding the provisions of any law to the contrary,
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 Revised Penal Code shall
be applicable.
So the crime will now be from homicide to
MURDER. It changes the nature of the crime to
bring about a more serious crime imposing a
higher penalty.
But there is a new decision by the SC, Dela Cruz
v. People (2015) (Syllabus under RA 9165)
Facts: The offender was charged with Robbery
with extortion. Suspected under the influence of
drugs and thus was forced to give urine for testing.
He was found positive for used of dangerous
drugs. Aside from robbery with extortion, he was
charged under RA9165 under sec. 15.
Convicted by the RTC, Conviction affirmed by the
CA.
SC: The drug test violated his right to privacy and
right against self-incrimination. He must be
acquitted for illegal use of dangerous drugs.
Section 15. 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 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.
The first element that the accused was
apprehended or arrested for the commission of
the crime does not refer to any other crime. It
refers only to crimes under Art. 2 of RA9165. So
based on this decision, if the crime committed by
the offender is outside the scope of RA 9165, the
police cannot subject him to drug testing. No
person may be placed under mandatory drug
testing because it is against his right to privacy and
self-incrimination.
Applying such decision, this confirmatory test will
only apply if the said offender's crime is under RA
9165 but not any other law.
TOTALLY IN CONFLICT. Congress and SC
have different views.
NOTE: 1 March 2017: Sec. 25, a positive result for
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the use dangerous drugs is a qualifying AC. It
appears to be applicable to all crimes. But [see
2015 decision of SC,] Dela Cruz v. People.
Alternative Circumstances
Art. 15. Their concept. — Alternative
circumstances are those which must be taken into
consideration as aggravating or mitigating
according to the nature and effects of the crime
and the other conditions attending its
commission. They are the relationship,
intoxication and the degree of instruction and
education of the offender.
The alternative circumstance of
relationship shall be taken into consideration
when the offended party in the spouse, ascendant,
descendant, legitimate, natural, or adopted
brother or sister, or relative by affinity in the
same degrees of the offender.
The intoxication of the offender shall be
taken into consideration as a mitigating
circumstances when the offender has committed a
felony in a state of intoxication, if the same is not
habitual or subsequent to the plan to commit said
felony but when the intoxication is habitual or
intentional, it shall be considered as an
aggravating circumstance.
Alternative circumstances are those
circumstances which can either be aggravating or
mitigating, depending on their effect in
commission of the crime.
Three Alternative Circumstances [RIDe]:
1. Relationship;
2. Intoxication;
3. Degree of Instruction or Education
 Relationship
Is considered as an alternative circumstance
when the offender is related to the offended party
as his spouse, ascendants, descendants,
legitimate, illegitimate, natural, adopted brothers,
sisters or relatives by affinity within the same
degree.
When is relationship considered as mitigating?
In crimes against property.
Ex.: Crime of Arson; Culpable Insolvency. It is
considered as a mitigating circumstance.
But in certain crimes against property such as
theft, estafa or swindling and malicious mischief,
relationship is exempting. Under article 332 if the
crime committed is theft, estafa or swindling, and
malicious mischief, relationship exempts the
offender from criminal liability. Therefore, if in
these three cases relationship is exempting, then
all other Crimes against property, relationship is
a mitigating circumstance.
In crimes against persons, relationship is
mitigating if the offender is of a higher degree
than that of the offended party, and the crime
committed is less physical injury, or slight
physical injury. If the crime committed is serious
physical injury, it's always an aggravating
circumstance.
Relationship is inherent in the crime of parricide.
 Intoxication
What is intoxication?
When the offender has taken such amount of
liquor of sufficient quantity as to affect his mental
capacity to determine the consequences of his act.
Under Article 15, intoxication is considered as a
mitigating circumstance if it is not habitual or
subsequent to the plan to commit the felony
On the other hand, intoxication is considered as
an aggravating circumstance if it is habitual or it
is done subsequent to the commission of a crime.
The offender deliberately takes liquor because he
used it as a stimulant for him to commit the crime.
He was so nervous he cannot commit the crime,
so he takes liquor form him to have the strength
to commit the crime.
X wanted to kill his enemy, and tried many times
but he cannot do it, he did not have the strength
to do so. So he got intoxicated, got his strength to
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kill his enemy. Intoxication is aggravating.
People v. Victoriano Dela Cruz, G.R. No. 187683,
11 February 2010
Facts: See Dela Cruz case, in Exempting
Circumstances-Accident [pg. 108]
Ruling: A person pleading intoxication to
mitigate penalty must present proof of having
taken a quantity of alcoholic beverage prior to
the commission of the crime, sufficient to
produce the effect of obfuscating reason. In
short, the defense must show that the
intoxication is not habitual, and not
subsequent to a plan to commit a felony,
and that the accused's drunkenness affected
his mental faculties. In this case, the absence
of any independent proof that his alcohol
intake affected his mental faculties militate
against Victoriano's claim that he was so
intoxicated at the time he committed the crime
to mitigate his liability [end].
 Degree of Instruction and Education
As a rule: a low degree of education or instruction
is considered as a mitigating circumstance.
Exception: if the crime committed is inherently
evil or wrong. Ex.: Killing a person, molesting a
woman, taking the personal property of another.
Such is as wrong as to a learned man as it is to an
ignorant man.
A high degree of education is considered as an
aggravating circumstance, if the offender makes
use of his high degree of education in facilitating
the commission of the crime.
Ex.: A lawyer committing estafa by falsifying a
deed of absolute sale. The lawyer makes use of his
high degree of education in order to commit the
crime.
However, in a case where a lawyer kills another
person in the course of an argument his high
degree of education has nothing to do with the
commission of the crime. Therefore in this case,
it cannot be considered as an aggravating
circumstance.
ABSOLUTORY CAUSES AND EXTENUATING
CIRCUMSTANCES
Absolutory Causes
Are those circumstances which have the effect of
exempting a person from criminal liability but not
from civil liability, but which are outside Article
12.
Ex.: Mistake of fact, Instigation, Accessories in
Light felonies.
Instigation as an absolutory cause.
In instigation, the mens rea/evil intent originated
from the mind of the public officer who only
lured the offender to commit the crime. On other
hand, entrapment is not an absolutory cause
because entrapment refers to ways and means
resorted to by the public officer in order to trap
and capture a criminal in flagrante delicto. Here,
the mens rea originated from the mind of the
offender.
People v. Nalega, G.R. No. 171018, 11 September
2009: distinction between instigation and
entrapment.
Instigation Entrapment
Mens rea originated Mens rea originated
from the mind of the from the mind of the
public officer offender. Officer
merely devised ways
and means to catch the
accused in flagrante
delicto.
An absolutory cause Not an absolutory
by reason of public cause.
policy.
The public officer is The public officer is
liable as a principal by not criminally liable.
inducement.
Facts: Law enforcers received information that
appellant Elly Naelga was peddling drugs in the
public market. They conducted a buy-bust
operation. The police officer, acting as a poseur-
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buyer, posed as a security guard who wanted to stay
awake at night. Naelga suggested shabu, and the
police handed him marked money. Naelga left and
the police planned his arrest. When Naelga
returned, the poseur-buyer gave him the balance of
the purchase price. Naelga took out a sachet of
shabu and handed it to the poseur-buyer. He was
arrested shortly afterward.
Nalega was charged in the RTC of Rosales,
Pangasinan of violation of Secs. 5 & 11 (3) of RA
9165, and the RTC found him guilty as charged.
The CA affirmed the RTC.
Issue: Whether the police, as the poseur-buyer,
instigated him to sell shabu.
Ruling:
We find no instigation in this case. The general rule
is that it is no defense to the perpetrator of a crime
that facilities for its commission were purposely
placed in his way, or that the criminal act was done
upon the "decoy solicitation" of persons seeking to
expose the criminal, or that detectives feigning
complicity in the act were present and apparently
assisting in its commission. This is particularly true
in that class of cases where the offense is of a kind
habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere
deception by the detective will not shield
defendant, if the offense was committed by him
free from the influence or the instigation of the
detective.
Here, the law enforcers received a report from
their confidential informant that Naelga was
engaged in illegal drug trade in the public market
of Rosales. Poseur-buyer PO2 Sembran then
pretended to be engaged in the drug trade himself
and, with the help of his fellow buy-bust
operatives, arrested Naelga in the act of delivering
the shabu to him. In an entrapment, ways and
means are resorted to for the purpose of
trapping and capturing the lawbreakers in the
execution of their criminal plan. In instigation,
the instigator practically induces the would-be
defendant into the commission of the offense,
and himself becomes a co-principal.
Entrapment is no bar to prosecution and
conviction; in instigation, the defendant would
have to be acquitted.
A buy-bust operation is a form of entrapment,
which in recent years has been accepted as a
valid and effective mode of arresting violators
of the Dangerous Drugs Law. In a buy-bust
operation, the idea of committing a crime
originates from the offender, without
anybody inducing or prodding him to
commit the offense. In the case at bar, the
buy-bust operation was formed by the police
officers precisely to test the veracity of the tip
and in order to apprehend the perpetrator.
While Naelga claims that it was PO2 Sembran who
approached and asked him to buy shabu for him,
the same cannot be considered as an act of
instigation, but an act of "feigned solicitation."
Instigation is resorted to for purposes of
entrapment, based on the tip received from the
police informant that Naelga was peddling illegal
drugs in the public market of Rosales. In fact, it
was Naelga who suggested to PO2 Sembran to
use shabu; and, despite Naelga’s statement that he
did not know anybody selling shabu, he still took
the money from PO2 Sembran and directly went
to Urdaneta, where he claimed to have bought the
illegal drug. Then he returned to the Rosales public
market and gave the drug to PO2 Sembran [end].
Extenuating Circumstances
Same effect as mitigating circumstance but not
included in Article 13, to lower the imposable
penalty.
Ex.: Infanticide
A mother killed her own child less than 3 days
old in order to conceal her dishonor. The penalty
here will be lowered by 2 degrees, from reclusion
perpetua to death, the penalty will be prision
mayor [Art. 255, 2nd par.]
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PERSONS CRIMINALLY LIABLE
Art. 16. Who are criminally liable. — The
following are criminally liable for grave and less
grave felonies:
1. Principals.
2. Accomplices.
3. Accessories.
The following are criminally liable for light
felonies:
1. Principals
2. Accomplices
Art. 17. Principals. — The following are
considered principals:
1. Those who take a direct part in the execution
of the act;
2. Those who directly force or induce others to
commit it;
3. Those who cooperate in the commission of the
offense by another act without which it would
not have been accomplished.
The principal knows the criminal design because
he is the author of the crime.
Kinds of principals:
1. Principal by direct participation
Must necessarily be present in the scene of the
crime because he is the one who actually executed
the crime. Without him, the crime will not be
committed.
2. Principal by induction or inducement
Requisites of a principal by inducement:
1. The inducement is made directly to procure
the commission of the crime; and
2. The inducement is the primary
reason[/determining cause] of the
commission of the crime by the principal by
direct participation.
[Principals by inducement directly force or induce
another to commit a crime, GN 2016]. They may
or may be present in the scene of the crime, and
they may or may not actually take part in the
commission of the same. If there is evidence to
prove that without his inducement, the crime
would not have been committed, still he can be
criminally liable.
The inducement must be the primary reason why
the crime was committed.
Inducement may come in different forms:
a. Giving of price, reward or promise;
b. By employing force, command or
ascendancy which is being followed by the
principal by direct participation.
3. Principal by indispensable cooperation
He must be at the scene of the crime because he
must perform another act without which the
crime would not have been accomplished.
If with or without his act the crime will be
accomplished, the offender is an accomplice.
People v. Dulay, G.R. No. 193854, 24
September 2012
Facts: Dina Dulay was introduced to AAA, a 12-
year old girl, by the latter’s sister. Dulay convinced
AAA to accompany her to a wake, but before that
they looked for Dulay’s boyfriend. They found
him at a fish port. Afterwards, Dulay, her
boyfriend and AAA went to the kubuhan at the
back of the fish port.
When they reached the Kubuhan, Dulay suddenly
pulled AAA inside a room where a man known by
the name “Speed” was waiting. AAA saw “Speed”
give money to Dulay and heard “Speed” tell Dulay
to look for a younger girl. Thereafter, “Speed”
wielded a knife and tied AAA's hands to the papag
and raped her. AAA asked for Dulay’s help when
she saw the latter peeping into the room while she
was being raped, but Dulay did not do so. After the
rape, “Speed” and Dulay told AAA not to tell
anyone what had happened or else they would get
back at her.
Dulay was charged conspiring with Speed in raping
AAA in the RTC of Paranaque. The RTC
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convicted her as a co-principal by indispensable
cooperation in the crime of rape. The CA affirmed
the conviction.
Issue: Whether Dulay is not guilty of rape as co-
principal by indispensable cooperation.
Ruling: Appeal DISMISSED. Dulay is guilty of
violation of Sec. 5(a), Art. III, RA 7610.
Under the Revised Penal Code, an accused may be
considered a principal by direct participation, by
inducement, or by indispensable cooperation. To
be a principal by indispensable cooperation,
one must participate in the criminal
resolution, a conspiracy or unity in criminal
purpose and cooperation in the commission of
the offense by performing another act without
which it would not have been accomplished.
Nothing in the evidence presented by the
prosecution does it show that the acts
committed by appellant are indispensable in
the commission of the crime of rape. The events
narrated by the CA, from the time Dulay
convinced AAA to go with her until Dulay
received money from the man who allegedly raped
AAA, are not indispensable in the crime of rape.
Anyone could have accompanied AAA and offered
the latter's services in exchange for money and
AAA could still have been raped. Even AAA could
have offered her own services in exchange for
monetary consideration and still end up being
raped. Thus, this disproves the indispensable
aspect of the appellant in the crime of rape. It must
be remembered that in the Information, as well as
in the testimony of AAA, she was delivered and
offered for a fee by Dulay, thereafter, she was
raped by "Speed.”
In this light, while this Court does not find Dulay
to have committed the crime of rape as a principal
by indispensable cooperation, she is still guilty of
violation of Section 5 (a) of R.A. 7610. Paragraph
(a) essentially punishes acts pertaining to or
connected with child prostitution. It contemplates
sexual abuse of a child exploited in prostitution. In
other words, under paragraph (a), the child is
abused primarily for profit.
As alleged in the Information and proven through
the testimony of AAA, Dulin facilitated or induced
child prostitution. Thus, the act of Dulin in
convincing AAA, who was 12 years old at that
time, to go with her and thereafter, offer her for
sex to a man in exchange for money makes her
liable under the above-mentioned law [end].
Art. 18. Accomplices. — Accomplices are those
persons who, not being included in Art. 17,
cooperate in the execution of the offense by
previous or simultaneous acts.
Requisites to be an accomplice:
1. There must be community of design;
After the principals have [formed] the
criminal design, the accomplice had been
informed of the criminal design of the
offender and having been informed, he
concurs with the said criminal design. He
is not part of the conspiracy but he knows
and concurs with the design because he
was informed of the same only after the
principal had come up with agreement.
2. That he performs the acts previous or
simultaneous to the commission of the
crime; and
3. That the acts performed by the principal is
related to the acts performed by the
accomplice.
Accomplices cooperate in the commission of the
crime by previous of simultaneous acts.
The participation is only minor in character. It
only provides material and moral aide in an
efficacious manner but not in an indispensable
manner.
If the act performed by the offender facilitated
the commission of the crime, but it is not
indispensable in the commission of the crime,
with or without said act nevertheless, the crime
had been committed, the offender is merely an
accomplice.
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The accomplice knows the criminal design because
he concurs with it.
Ex.: A, B, C, D, and E decided to rob a bank. Based
on their agreement, A.B, and C will be the ones to
enter the bank. D will serve as lookout. E will
serve as the driver of the vehicle. They committed
the crime on the date agreed upon. What are the
liabilities of A, B, C, D, and E?
A: All of them are liable as principals by direct
participation, because all of them are authors of
the criminal design.
Ex2: What if, A, B and C decided to rob the bank.
On the agreed time and place, they were already
about to go to the bank, but suddenly they
realized they have no vehicle. So the flagged down
a taxi. They informed the taxi driver of their
criminal design, to which the taxi driver agreed
for his car to be used as a getaway vehicle. While
on their way to the bank, they realized that they
needed a lookout. They saw a balut vendor and
asked him, "Can you be our lookout? The moment
you see a police coming, shout baluuuuut!" The
said vendor agreed to the said criminal design.
After robbing the bank, A B C and the balut vendor
boarded the taxi. Criminal liability of each?
A: A B and C are liable as principal by direct
participation, while the taxi driver and the balut
vendor are liable as accomplices. They are
accomplices since A B C already agreed on the
criminal design before they informed the two of
the same and the latter concurred by performing
simultaneous acts or subsequent to the
commission of the crime.
NOTE: So no matter how minor the participation
is of an offender, if he is an author of the criminal
design, even if he only acted as a lookout, still he
is liable as a principal by direct participation.
People v. Gambao, et al., G.R. No. 172707, 1
October 2013
Facts: One evening, Lucia Chen was kidnapped
by appellant Dilangalen and an unidentified
person. She was eventually brought to a house
where she was guarded by appellants Dukilman,
Ronas, Evad and Macalinbol, and was threatened
to be killed unless she paid P20 million.
She was then transferred to another house, and
inside a room on the 2nd floor she found
Macalinbol, and appellants Udal and Gambao.
Later, a 17-year old female, appellant Perpenian
arrived. In the evening, Mandao and appellant
Karim arrived as well. Chan was instructed to talk
to her son Levy and negotiated the ransom
amount in exchange for Chan’s release. It was
agreed that Levy was to deliver P400,000 at
Chowking Buendia.
The next day, the police obtained information
about the delivery of the ransom money. They
chased a Tamaraw FX whose occupants took the
ransom. The police intercepted the van and
arrested Karim, Abao, Gambao & Dukilman. On
the same day, the police successfully rescued Chan
and apprehended Dilangalen, Udal, Macalinbol,
Mandao, Perpenian, Evad & Ronas.
Gambao, et al. were charged with kidnapping for
ransom in the RTC of Pasay City. All [except
Karim and Perpenian] plead guilty. The RTC
convicted Gambao, et al. (including Perpenian)
guilty as charged. The CA affirmed with
modification the RTC decision.
Issue: Whether Perpenian is guilty of kidnapping.
Ruling: CA decision AFFIRMED with
MODIFICATION: Perpenian is guilty as an
accomplice.
The trial court took note of the fact that
Perpenian gave inconsistent answers and lied
several times under oath during the trial.
Perpenian lied about substantial details such as
her real name, age, address and the fact that
she saw Chan at the Elizabeth Resort. When
asked why she lied several times, Perpenian
claimed she was scared to be included or
identified with the other accused-appellants. The
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lying and the fear of being identified with
people whom she knew had done wrong are
indicative of discernment. She knew, therefore,
that there was an ongoing crime being
committed at the resort while she was there.
It is apparent that she was fully aware of the
consequences of the unlawful act.
As reflected in the records, the prosecution was
not able to proffer sufficient evidence to hold
Perpenian responsible as a principal. Seeing that
the only evidence the prosecution had was the
testimony of Chan to the effect that xxx Perpenian
entered the room where the victim was detained
and conversed with Evad and Ronas regarding
stories unrelated to the kidnapping, this Court
opines that Perpenian should not be held liable as
a co-principal, but rather only as an accomplice to
the crime.
Jurisprudence is instructive of the elements
required, in accordance with Article 18 of the
Revised Penal Code, in order that a person may be
considered an accomplice, namely,
(1) that there be community of design; that is
knowing the criminal design of the principal by
direct participation, he concurs with the latter
in his purpose;
(2) that he cooperates in the execution by previous
or simultaneous act, with the intention of
supplying material or moral aid in the
execution of the crime in an efficacious
way; and
(3) that there be a relation between the acts done
by the principal and those attributed to the
person charged as accomplice.
The defenses raised by Perpenian are not sufficient
to exonerate her criminal liability. Assuming
arguendo that she just came to the resort thinking it
was a swimming party, it was inevitable that she
acquired knowledge of the criminal design of the
principals when she saw Chan being guarded in the
room. A rational person would have suspected
something was wrong and would have reported
such incident to the police. Perpenian, however,
chose to keep quiet; and to add to that, she even
spent the night at the cottage. It has been held
before that being present and giving moral support
when a crime is being committed will make a
person responsible as an accomplice in the crime
committed. It should be noted that Perpenian’s
presence and company were not indispensable and
essential to the perpetration of the kidnapping for
ransom; hence, she is only liable as an accomplice.
Moreover, this Court is guided by the ruling in
People v. Clemente, et al., where it was stressed that in
case of doubt, the participation of the offender will
be considered as that of an accomplice rather than
that of a principal [end].
NOTE: Perpenian was 31 years old at the time of
the SC judgment, so according to Art. 40 of RA
9344, the suspension of sentence under Art. 30 will
not apply. She was also not ordered to be confined
in an agricultural camp because her actual served
term had already exceeded the imposable penalty
for her offense. The SC ordered her immediate
release. [Prosec G.: We will take this up in
preventive imprisonment].
Art. 19. Accessories. — Accessories are those who,
having knowledge of the commission of the crime,
and without having participated therein, either as
principals or accomplices, take part subsequent to
its commission in any of the following manners:
1. By profiting themselves or assisting the
offender to profit by the effects of the crime;
2. By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the
escape of the principals of the crime, provided
the accessory acts with abuse of his public
functions or whenever the author of the crime
is guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive,
or is known to be habitually guilty of some
other.
Does the accessory know the criminal design?
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No. What he knows is the commission of the
crime. Despite knowledge that the crime has
been committed, he take part subsequent to its
commission.
1st: By profiting themselves or assisting the
offender to profit by the effects of the crime;
Ex.: A, by means of deceit, was able to take the
diamond ring of his friend. So A swindled his
friend by means of deceit. After taking the ring,
she went to B. A told B "B, I have here a diamond
ring, I swindled it from my friend and I'm selling
it to you for only 10k. B bought the said ring and
displayed it to his shop to have it sold. Later B was
found in possession of the said ring. Is be liable as
an accessory? A: YES.
Ex.2: What if A, went to a pawnshop, broke in,
took all the jewelries. A told B "I am selling this to
you for only 20k." B bought the same. He told A
"This are the jewelries from my friend's
pawnshop right?" A said, yes. IS B an accessory
and a fence? A: YES
ANTI-FENCING LAW, PD 1612
Elements of fencing:
1. That the crime of robbery or theft has been
committed;
2. That the said person was found in
possession of the said article or items
which are the proceeds of the crime;
3. That there was on the part of such person,
the intent to gain either for himself or for
another;
4. That the said person knows or should have
known that the article is the product of
robbery or theft.
Who is a fence?
A: A fence includes any person, firm, association,
corporation or partnership or other organization
who/which commits the act of fencing.
"Fencing" is the act of any person who, with intent
to gain for himself or for another, shall buy,
receive, possess, keep, acquire, conceal, sell or
dispose of, or shall buy and sell, or in any other
manner deal in any article, item, object or
anything of value which he knows, or should be
known to him, to have been derived from the
proceeds of the crime of robbery or theft.
Fencing is not a continuing crime. It is not a
transitory offense. Thus, prosecute the accused
in the place where he is arrested in possession
of the stolen goods.
The robbery took place in Manila. The house
helper went inside the master bedroom. Broke the
vault and got the cash and jewelries therein.
Thereafter, she went to QC and sold the jewelries
to a store for 50K. Upon examination of the
jewelries, the store owner knew it was worth
millions of Pesos thus the store owner immediately
gave the 50K. The police officer went to the said
store and there indeed the police together with the
real owner were able to identify the jewelries. What
are their criminal liabilities of the helper and the
store-owner?
ANS: The helper is a principal by direct
participation of robbery.
The store-owner is not liable as an accessory. The
first element is not present. The store owner has
no knowledge of the commission of the crime.
Such knowledge cannot be presumed and must be
proven.
But may be liable under PD 1612 as a Fence. All
elements of Fencing are present. There is a
presumption under PD 1612, SEC. 5. Note that
the information for fencing must be filed in QC.
He should have known that the jewelry were the
proceeds of robbery. The discrepancy between
their value and the helper’s selling price should
have alerted him [to this fact].
Q: What if the store owner knew of the robbery,
can he be charged for both as an accessory of
robbery and fencing?
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A: Yes.
But do not do that. It is better to file fencing.
Because it is easier to prove. While in accessory,
he must first know that the crime has been
committed. In fencing, it is not necessary that he
knows.
Section 5 of PD 1612 provided a prima facie
presumption of fencing if a person is in
possession of a stolen article. The burden of
evidence is shifted on the accused.
Ong v. People, G.R. No. 190475, 10 April 2013
Facts: Jaime Ong was charged with the violation
of the Anti-Fencing Law in the RTC of Manila.
Private complainant Azajar reported to the police
that his 44 Firestone truck tires were stolen from his
warehouse. Pending the police investigation,
Azajar canvassed numerous business
establishments in an attempt to locate the stolen
tires. He discovered that Jong Marketing, which
was owned and operated by Ong was selling
Azajar’s tires, based on their chalk markings and
serial numbers. The buy-bust operation, wherein
one tire was sold for P5,000, eventually yielded 12
more of Azajar’s stolen tires (a total of 13), and the
arrest of Ong.
Ong denied that he had knowledge that he was
selling stolen tires, and that a certain Ramon Go
offered to sell 13 Firestone truck tires for P3,500
each. Ong bought all tires for P45,000.
The RTC found that all 13 tires found in Ong’s
possession constituted prima facie evidence of
fencing. Ong failed to overcome the presumption
and was found guilty. The CA affirmed the RTC.
Issue: Whether Ong is not guilty of fencing.
Ruling: Petition DENIED.
The essential elements of the crime of fencing are
as follows:
(1) a crime of robbery or theft has been
committed;
(2) the accused, who is not a principal or on
accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses,
keeps, acquires, conceals, sells or disposes, or
buys and sells, or in any manner deals in any
article, item, object or anything of value,
which has been derived from the proceeds of
the crime of robbery or theft;
(3) the accused knew or should have known that
the said article, item, object or anything of
value has been derived from the proceeds of
the crime of robbery or theft; and
(4) there is, on the part of one accused, intent to
gain for oneself or for another.
We agree with the RTC and the CA that the
prosecution has met the requisite quantum of
evidence in proving that all the elements of fencing
are present in this case.
First, the owner of the tires, private complainant
Azajar, whose testimony was corroborated by Jose
Cabal - the caretaker of the warehouse where the
thirty-eight (38) tires were stolen – testified that the
crime of robbery had been committed. Azajar was
able to prove ownership of the tires through Sales
Invoice No. 4565 and an Inventory List.
Witnesses for the prosecution likewise testified
that robbery was reported as evidenced by their
Sinumpaang Salaysay. The report led to the conduct
of a buy-bust operation at Jong Markerting, Paco,
Manila.
Second, although there was no evidence to link Ong
as the perpetrator of the robbery, he never denied
the fact that thirteen (13) tires of Azajar were
caught in his possession. The facts do not establish
that Ong was neither a principal nor an accomplice
in the crime of robbery, but thirteen (13) out of
thirty-eight (38) missing tires were found in his
possession. This Court finds that the serial
numbers of stolen tires corresponds to those
found in Ong’s possession. Ong likewise admitted
that he bought the said tires from Go of Gold Link
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in the total amount of P45, 500 where he was
issued Sales Invoice No. 980.
Third, the accused knew or should have known that
the said article, item, object or anything of value
has been derived from the proceeds of the crime
of robbery or theft. The words “should know”
denote the fact that a person of reasonable
prudence and intelligence would ascertain the
fact in performance of his duty to another or
would govern his conduct upon assumption
that such fact exists. Ong, who was in the
business of buy and sell of tires for the past twenty-
four (24) years, ought to have known the ordinary
course of business in purchasing from an unknown
seller. Admittedly, Go approached Ong and
offered to sell the thirteen (13) tires and he did not
even ask for proof of ownership of the tires. The
entire transaction, from the proposal to buy until
the delivery of tires happened in just one day. His
experience from the business should have given
him doubt as to the legitimate ownership of the
tires considering that it was his first time to transact
with Go and the manner it was sold is as if Go was
just peddling the thirteen (13) tires in the streets.
In Dela Torre v. COMELEC, this Court had
enunciated that circumstances normally exist to
forewarn, for instance, a reasonably vigilant buyer
that the object of the sale may have been derived
from the proceeds of robbery or theft. Such
circumstances include the time and place of the
sale, both of which may not be in accord with the
usual practices of commerce. The nature and
condition of the goods sold, and the fact that the
seller is not regularly engaged in the business of
selling goods may likewise suggest the illegality of
their source, and therefore should caution the
buyer. This justifies the presumption found in
Section 5 of P.D. No. 1612 that “mere possession of
any goods, . . ., object or anything of value which has been
the subject of robbery or thievery shall be prima facie evidence
of fencing” — a presumption that is, according to the Court,
“reasonable for no other natural or logical inference can arise
from the established fact of . . . possession of the proceeds of
the crime of robbery or theft.”
Moreover, Ong knew the requirement of the law
in selling second hand tires. Section 6 of P.D. 1612
requires stores, establishments or entities dealing in
the buying and selling of any good, article, item,
object or anything else of value obtained from an
unlicensed dealer or supplier thereof to secure the
necessary clearance or permit from the station
commander of the Integrated National Police in
the town or city where that store, establishment or
entity is located before offering the item for sale to
the public. In fact, Ong has practiced the
procedure of obtaining clearances from the police
station for some used tires he wanted to resell but,
in this particular transaction, he was remiss in his
duty as a diligent businessman who should have
exercised prudence.
In his defense, Ong argued that he relied on the
receipt issued to him by Go. Logically, and for all
practical purposes, the issuance of a sales invoice
or receipt is proof of a legitimate transaction and
may be raised as a defense in the charge of fencing;
however, that defense is disputable. In this case,
the validity of the issuance of the receipt was
disputed, and the prosecution was able to prove
that Gold Link and its address were fictitious. Ong
failed to overcome the evidence presented by the
prosecution and to prove the legitimacy of the
transaction. Thus, he was unable to rebut the prima
facie presumption under Section 5 of P.D. 1612.
Finally, there was evident intent to gain for himself,
considering that during the buy-bust operation,
Ong was actually caught selling the stolen tires in
his store, Jong Marketing [end].
People v. Dimat, G.R. No. 181184, 25 January
2012
Facts: Petitioner Mel Dimat was charged with
violation of the Anti-Fencing Law before the RTC
of Manila.
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Sonia Delgado bought from Dimat a 1997 Nissan
Safari. It was spotted and stopped by the police.
Upon inspection, they discovered that the Nissan
was actually stolen from its owner Mantequilla.
Dimat claimed that he did not know Mantequilla,
and that he bought the Safari in good faith and for
value from a certain Manuel Tolentino, and then
sold the same to Sonia Delgado.
The RTC convicted Dimat as charged, and the CA
affirmed the conviction.
Issue: Whether Dimat knowingly sold to Delgado
the Nissan Safari that was earlier carnapped from
Mantequilla.
Ruling:
The elements of "fencing" are
1) a robbery or theft has been committed;
2) the accused, who took no part in the
robbery or theft, "buys, receives, possesses,
keeps, acquires, conceals, sells or disposes,
or buys and sells, or in any manner deals in
any article or object taken" during that
robbery or theft;
3) the accused knows or should have known
that the thing derived from that crime; and
4) he intends by the deal he makes to gain for
himself or for another.
Here, someone carnapped Mantequilla's
Nissan Safari on May 25, 1998. Two years later
in December 2000, Dimat sold it to Delgado
for P850,000.00. Dimat's defense is that the
Nissan Safari he bought from Tolentino and
later sold to Delgado had engine number
TD42-126134 and chassis number CRGY60-
YO3553 as evidenced by the deeds of sale
covering those transactions. The Nissan Safari
stolen from Mantequilla, on the other hand,
had engine number TD42-119136 and chassis
number CRGY60-YO3111.
But Dimat's defense is flawed. First, the Nissan
Safari Delgado bought from him, when
stopped on the road and inspected by the
police, turned out to have the engine and
chassis numbers of the Nissan Safari stolen
from Mantequilla. This means that the deeds of
sale did not reflect the correct numbers of the
vehicle's engine and chassis.
Second. Dimat claims lack of criminal intent
as his main defense. But Presidential Decree
1612 is a special law and, therefore, its violation
is regarded as malum prohibitum, requiring no
proof of criminal intent. Of course, the
prosecution must still prove that Dimat knew
or should have known that the Nissan Safari he
acquired and later sold to Delgado was derived
from theft or robbery and that he intended to
obtain some gain out of his acts.
Dimat testified that he met Tolentino at the
Holiday Inn Casino where the latter gave the
Nissan Safari to him as collateral for a loan.
Tolentino supposedly showed him the old
certificate of registration and official receipt of
the vehicle and even promised to give him a
new certificate of registration and official
receipt already in his name. But Tolentino
reneged on this promise. Dimat insists that
Tolentino's failure to deliver the documents
should not prejudice him in any way. Delgado
himself could not produce any certificate of
registration or official receipt.
Based on the above, evidently, Dimat knew
that the Nissan Safari he bought was not
properly documented. He said that Tolentino
showed him its old certificate of registration
and official receipt. But this certainly could not
be true because, the vehicle having been
carnapped, Tolentino had no documents to
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show. That Tolentino was unable to make good
on his promise to produce new documents
undoubtedly confirmed to Dimat that the
Nissan Safari came from an illicit source. Still,
Dimat sold the same to Sonia Delgado who
apparently made no effort to check the papers
covering her purchase. That she might herself
be liable for fencing is of no moment since she
did not stand accused in the case [end].
nd
2 : By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
Q: what do we mean by body of the crime?
A: Substance of the crime. It refers to the fact that
a crime has been committed by someone. [ Do not
answer corpus delicti!]
Elements corpus delicti:
1. Proof of occurrence of a certain event;
2. Proof of a person’s criminal liability.
NOTE: For as long as there are witnesses, the
body of the crime still exists.
Ex: A stabbed B. thereafter, he buried the
deceased body of B. X witnessed A’s act of killing
the moment A buried the body of B under the
ground, is the body of the crime gone?
A: NO. The body of the crime does not refer to the
physical body of the victim. [Nor does it refer to
the stolen goods in the crime of theft/robbery].
3rd act: By harboring, concealing, or assisting in
the escape of the principals of the crime, provided
the accessory acts with abuse of his public
functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an attempt
to take the life of the Chief Executive, or is known
to be habitually guilty of some other.
NOTE: If the accessory who harbored and
concealed or assisted in the escape of the of the
principal is a private individual, the law
specifies the crime committed, which is PD 1829,
otherwise known as Obstruction of Justice.
Ex.: The principal committed swindling or estafa.
X harbored the principal despite knowing the
latter committed estafa. X cannot be considered
as an accessory because estafa or swindling is not
among the crimes mentioned in the second part
of the 3rd act. So what is the criminal liability of
the friend?
A: HE is liable under PD 1829. Obstruction of
Justice is committed by any person who willfully
and lawfully obstructs, impedes, frustrates or
delays the apprehension of suspects and the
investigation and prosecution of criminal cases.
Ex.: What if A and B sisters. They had a
housemaid, X. A and B were cruel to X, for a minor
mistake they would slap, boxed or injure her. One
time, A went to work. When she arrived home,
she saw the deceased body of X. A and B placed
the deceased body in a sack and placed it on the
trunk of their car. However, someone witnessed
their act who immediately called the police,
reporting that he saw 2 women putting a sack in
the truck wherein 2 feet were protruding from
the said sack. A and B were prosecuted and both
convicted for murder. The Supreme Court
however said that only B is liable, not for murder
but only for homicide. When A arrived, the
housemaid was already dead.
But how about A's act of trying to place the
deceased body inside the trunk of the car in order
to prevent the discovery of the crime?
A: Her act constitutes that of an accessory. But she
falls under Article 20 since she is related to the
offender.
A,B,C,D are happily walking. Suddenly they
chanced upon X. A and B stab X. C just stood
there just watching. D served as lookout. A told C
to dispose the body of X and so C threw it in a
deep well. The autopsy report shows that X died
not because of the stab wounds but because of
drowning. A,B,C,D are all charged as principals in
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the crime of Murder. Are they all liable as
principals? What are their criminal liabilities?
C claims that he is not liable as principal but only
as an accessory because he participated after the
act of stabbing. He did not know X was still alive
when he disposed the body.
D also claims that he is not liable as he only served
as a look out, as mere accomplice.
ANS: A and B are liable as PRINCIPAL BY
DIRECT PARTICIPATION. They are the
persons who actually stabbed the victim.
C is also liable as PRINCIPAL BY
INDISPENSABLE COOPERATION because X
was still alive when he threw the body in the well.
The act of throwing in the well was the cause of
death. It consummated the crime of murder.
Indispensable because without throwing the body,
W would not have died. His defense that he has no
knowledge that X was still alive is untenable
because by disposing the body he was already
committing a felonious act thus must be liable for
its consequences (liable for a felony although
different from that which he intended).
D liable as an accomplice. He concurs with the
criminal design. All elements present.
 LOOK OUT as a PRINCIPAL- When he is
part of the criminal design. He is among the
authors of the criminal design (e.g. when the
crime was planned).
 LOOK OUT as a MERE ACCOMPLICE-
when he is not part of the criminal design.
[1 March 2017] X wanted to kill Y, who lives in a
boarding house. X told W, the caretaker of the
boarding house, that he wanted to kill Y, so he
asked W to open the gate one night. W did so, and
killed Y. What are their criminal liabilities?
X: Principal by direct participation as he was the
one who killed Y.
W: Accomplice. He [was informed of the criminal
design of X, and concurred with the same]. He
performed previous acts: opening the door, and
his opening of the gate was related to the killing by
X. W’s acts were not indispensable to the killing of
Y as X could kill Y whether or not the gate was
open.
X & Y were boxing, Y was defeated and was sent
sprawling to the ground. X tuned his back from Y.
W gave X a gun and told him to kill Y. He stared
at the gun for some seconds, then went to Y and
shot him to death. X told his father that he killed
Y with a gun. The father took the gun and hid it.
The father sold it the next day and kept the
proceeds for himself.
W: P. By indispensable cooperation. Without
giving of the gun, X would not have killed Y. X
already turned his back away from Y; he did not
intend to kill Y, until W showed along with the
gun.
The father is liable as an accessory under Art. 19(1)
in relation to Art. 20. When the father tried to hide
the gun, [he was covered by Art. 20]. But when he
sold the gun for profit, he became an accessory
under Art. 19(1).
The father is also liable for obstruction of justice.
Art. 20. Accessories who are exempt from criminal
liability. — The penalties prescribed for
accessories shall not be imposed upon those who
are such with respect to their spouses, ascendants,
descendants, legitimate, natural, and adopted
brothers and sisters, or relatives by affinity within
the same degrees, with the single exception of
accessories falling within the provisions of
paragraph 1 of the next preceding article.
When is an accessory exempted from criminal
liability?
1. When the crime committed is a light felony;
2. When the said accessory is the spouses,
ascendants, descendants, legitimate, natural,
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and adopted brothers and sisters, or relatives
by affinity within the same degrees.
NOTE: If the relatives [enumerated in Art. 20]
commit the acts in Art. 19 (1), they are liable as
accessories.
PENALTIES
Refers to punishment imposed by lawful
authority upon a person who has committed an
intentional felony or a culpable felony. These are
prescribed by law, enacted by Congress.
Art. 21. Penalties that may be imposed. — No
felony shall be punishable by any penalty not
prescribed by law prior to its commission.
This is in consonance on the provision of the
Constitution on [the prohibition of] ex post facto
laws.
TWO KINDS OF PENALTIES:
1. Principal; and
2. Accessory
Principal penalties are penalties prescribed by
law or prescribed by the court.
Accessory penalties are those which are
necessarily included in the imposition of
principal penalties.
Under Art 73, accessory penalties follow the
principal penalties as a matter of law. Hence, they
need not be stated in the decision:
Art. 73. Presumption in regard to the imposition of
accessory penalties. — Whenever the courts shall
impose a penalty which, by provision of law,
carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this
Code, it must be understood that the accessory
penalties are also imposed upon the convict.
Ex.: X was convicted of murder. Finding the
accused guilty beyond reasonable doubt.
Sentenced to suffer the penalty of reclusion perpetua,
also made to suffer perpetual absolute
disqualification and civil interdiction. They need
not be stated in the judgment of the court because
these two necessarily follow the principal penalty
of reclusion perpetua.
Villareal v. People, G.R. Nos. 154954, 155101,
178057 & 178080, 1 December 2014 [Motion for
Reconsideration of Villareal, 2012, pg. 18]
In this instance, we further find it important to
clarify the accessory penalties inherent to the
principal penalty imposed on Dizon and Tecson et
al.
By operation of Articles 40 to 45 and 73 of the
Revised Penal Code, a corresponding accessory
penalty automatically attaches every time a court
lays down a principal penalty outlined in Articles
25 and 27 thereof. The applicable accessory
penalty is determined by using as reference the
principal penalty imposed by the court before
the prison sentence is computed in
accordance with the ISL. This determination is
made in spite of the two classes of penalties
mentioned in an indeterminate sentence. It must
be emphasized that the provisions on the inclusion
of accessory penalties specifically allude to the
actual “penalty” imposed, not to the “prison
sentence” set by a court. We believe that the ISL
did not intend to have the effect of imposing on
the convict two distinct sets of accessory penalties
for the same offense. The two penalties are only
relevant insofar as setting the minimum
imprisonment period is concerned, after which the
convict may apply for parole and eventually seek
the shortening of the prison term.
Under Article 365 of the Revised Penal Code, the
prescribed penalty for the crime of reckless
imprudence resulting in homicide is arresto mayor
in its maximum period to prisión correccional in its
medium period. As this provision grants courts the
discretion to lay down a penalty without regard to
the presence of mitigating and aggravating
circumstances, the imposable penalty must also
be within the aforementioned range. Hence,
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before applying the ISL, we ultimately imposed on
Dizon and Tecson et al. the actual (straight) Art. 25. Penalties which may be imposed. — The
penalty of four years and two months of prisión penalties which may be imposed according to this
correccional. Pursuant to Article 43 of the Revised Code, and their different classes, are those
Penal Code, the penalty of prisión correccional included in the following:
automatically carries with it the following
accessory penalties: SCALE
PRINCIPAL PENALTIES
 Suspension:
Capital punishment:
o From public office, Death
o From the right to follow a profession
or calling, Afflictive penalties:
 Perpetual special disqualification from the Reclusion perpetua,
right of suffrage, if the duration of said Reclusion temporal,
imprisonment shall exceed eighteen months. Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
The duration of their suspension shall be the same Prision mayor
as that of their principal penalty sans the ISL; that
is, for four years and two months or until they Correctional penalties:
have served their sentence in accordance with law. Prision correccional,
Their suspension takes effect immediately, once Arresto mayor,
the judgment of conviction becomes final. Suspension,
Destierro
We further point out that if the length of their Light penalties:
imprisonment exceeds 18 months, they shall Arresto menor,
furthermore suffer a perpetual special Public censure
disqualification from the right of suffrage. Under
Article 32 of the Revised Penal Code, if this Penalties common to the three preceding classes:
accessory penalty attaches, it shall forever deprive Fine, and
them of the exercise of their right: Bond to keep the peace.
a) to vote in any popular election for any public
office; ACCESSORY PENALTIES
b) to be elected to that office; and Perpetual or temporary absolute
disqualification,
c) to hold any public office. Any public office
Perpetual or temporary special disqualification,
that they may be holding becomes vacant upon Suspension from public office, the right to vote
finality of the judgment. and be voted for, the profession or calling,
Civil interdiction,
The aforementioned accessory penalties can only Indemnification,
be wiped out if expressly remitted in a pardon. Forfeiture or confiscation of instruments and
Of course, the aforementioned accessory penalties proceeds of the offense,
are without prejudice to a grant of probation, Payment of costs.
should the trial court find them eligible therefor.
As we explained in Baclayon, the grant of probation
suspends the execution of the principal penalty of DEATH
imprisonment, as well as that of the accessory Under RA 9346, death penalty cannot be imposed,
but it remains to be the penalty for heinous crimes.
penalties [end].
Heinous crimes remain to be heinous crimes and

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the penalty remains to be death.
Sections 2 & 3, RA 9346:
Sec. 2. In lieu of death penalty, the following
shall be imposed:
a) The penalty of reclusion perpetua, when
the law violated makes use of the
nomenclature of penalties of the RPC; or
b) The penalty of life imprisonment, when the
law violated does not make use of the
nomenclature of the penalties of the RPC.
Sec. 3. Persons convicted of offenses punished
with reclusion perpetua, or whose sentences
will be reduced to reclusion perpetua, by
reason of this Act, shall not be eligible for
parole under Act. No. 4103, otherwise known
as the Indeterminate Sentence Law, as
amended.
People vs. Alonso: what is prohibited is the
imposition of death penalty.
Ex. Murder with aggravating circumstance.
Penalty is death. However, death cannot be
imposed because of RA 9346. If in violation of the
RPC, commuted to RP. If in violation of special
law, commuted to LI.
Under sec 3, when the penalty is RP or commuted
to RP, he cannot be given the benefit of parole
under the ISLAW.
People v. Quiachon, G.R. No. 170236, 31
August 2006
Facts: Quiachon was charged with qualified rape,
with the prosecution alleging that he raped
Rowena, his 8-year old, deaf-mute daughter. The
RTC convicted him as charged and imposed the
death penalty. The CA affirmed the RTC.
Ruling:
After a careful review of the records of the case,
the Court affirms the conviction of Quiachon.
However, in view of the enactment of Republic
Act (R.A.) No. 9346 on June 24, 2006
prohibiting the imposition of the death penalty,
the penalty to be meted on appellant is reclusion
perpetua in accordance with Section 2 thereof.
However, Quiachon is not eligible for parole
because Section 3 of R.A. No. 9346 provides
that "persons convicted of offenses punished
with reclusion perpetua, or whose sentences will
be reduced to reclusion perpetua by reason of the
law, shall not be eligible for parole."
Even if the penalty of death is not to be
imposed on Quiachon because of the
prohibition in R.A. No. 9346, the civil
indemnity of P75,000.00 is still proper because,
following the ratiocination in People v. Victor,
the said award is not dependent on the actual
imposition of the death penalty but on the
fact that qualifying circumstances warranting the
imposition of the death penalty attended the
commission of the offense [end].
People v. Salome, G.R. No. 169078, 31 August
2006
Facts: Sally Idanan, then 13 years old, was
sleeping inside her house when accused Nicanor
Salome entered the house. He poked a knife at the
base of her neck, undressed and inserted his penis
inside her vagina. Eventually, a complaint for rape
against Salome was filed in the MCTC, which
found Salome guilty and sentenced him to suffer
the death penalty. The CA affirmed the
conviction.
Issue: Whether Salome ought to suffer death
penalty.
Ruling: Salome is sentenced to reclusion
perpetua without parole.
Since the crime of rape was committed by Salome
with the use of a deadly weapon, punishable by
reclusion perpetua to death, the presence of the
aggravating circumstance of dwelling, without the
presence of any mitigating circumstance, justified
the trial court's imposition of the death penalty.
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In light, however, of the passage of Republic Act
No. 9346 xxx signed into law xxx on June 24, 2006,
the imposition of the death penalty has been
prohibited.
After a thorough review of the records, the Court
agrees with the evaluation of the evidence by the
Regional Trial Court and the Court of Appeals.
Pursuant to the new law, even as the Court sustains
the conviction of Salome, the penalty imposed
upon him should be reduced to reclusion perpetua,
but appellant shall not be eligible for parole under
the Indeterminate Sentence Law.
It should be noted that while the new law prohibits
the imposition of the death penalty, the penalty
provided for by law for a heinous offense is still
death and the offense is still heinous.
Consequently, the civil indemnity for the victim is
still P75,000. On the other hand, the automatic
appeal in cases when the trial court imposes the
death penalty will henceforth not apply, since its
imposition is now prohibited, so that there is a
need to perfect an appeal, if appeal is desired, from
a judgment of conviction for an offense where the
penalty imposed is reclusion perpetua in lieu of the
death penalty pursuant to the new law prohibiting
its imposition [end].
Afflictive Penalties:
RECLUSION PERPETUA
Life imprisonment is distinct and independent
from reclusion perpetua.
Reclusion perpetua Life imprisonment
Imposed in violation Imposed in violation
of the RPC. of special penal laws.
Carries a fixed No fixed duration.
duration: 20 to 40
years.
Carries with it Does not carry
accessory penalties. accessory penalties.
RECLUSION TEMPORAL
Duration is 12 years and 1 day to 20 years
PERPETUAL OR TEMPORARY ABSOLUTE
DISQUALIFICATION
PERPETUAL OR TEMPORARY SPECIAL
DISQUALIFICATION
Disqualification is both a principal and
accessory penalty
Art. 30. Effects of the penalties of perpetual or
temporary absolute disqualification. — The
penalties of perpetual or temporary absolute
disqualification for public office shall produce the
following effects:
1. The deprivation of the public offices and
employments which the offender may have
held, even if conferred by popular election.
2. The deprivation of the right to vote in any
election for any popular office or to be elected
to such office.
3. The disqualification for the offices or public
employments and for the exercise of any of the
rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in paragraphs
2 and 3 of this article shall last during the term
of the sentence.
4. The loss of all rights to retirement pay or
other pension for any office formerly held.
Art. 31. Effect of the penalties of perpetual or
temporary special disqualification. — The
penalties of perpetual or temporal special
disqualification for public office, profession or
calling shall produce the following effects:
1. The deprivation of the office, employment,
profession or calling affected;
2. The disqualification for holding similar
offices or employments either perpetually or
during the term of the sentence according to
the extent of such disqualification.
Art. 32. Effect of the penalties of perpetual or
temporary special disqualification for the exercise
of the right of suffrage. — The perpetual or
temporary special disqualification for the exercise
of the right of suffrage shall deprive the offender
perpetually or during the term of the sentence,
according to the nature of said penalty, of the
right to vote in any popular election for any public
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office or to be elected to such office. Moreover, the shall be from six months and one day to six years,
offender shall not be permitted to hold any public except when suspension is imposed as an
office during the period of his disqualification. accessory penalty, in which case, its duration shall
be that of the principal penalty.
Art. 33. Effects of the penalties of suspension from
any public office, profession or calling, or the right DESTIERRO (6m 1d to 6y)
of suffrage. — The suspension from public office, A principal penalty. It also involves deprivation of
profession or calling, and the exercise of the right liberty.
of suffrage shall disqualify the offender from Art 27: see above
holding such office or exercising such profession
or calling or right of suffrage during the term of Art. 87: Destierro. — Any person sentenced to
the sentence. destierro shall not be permitted to enter the place
The person suspended from holding public or places designated in the sentence, nor within
office shall not hold another having similar the radius therein specified, which shall be not
functions during the period of his suspension. more than 250 and not less than 25 kilometers
from the place designated.
Perpetual absolute Temporary absolute
disqualification disqualification Light Penalties:
Effective during the Disqualification lasts ARRESTO MENOR (1-30 days)
lifetime of the convictduring the term of the PUBLIC CENSURE
and even after the sentence, and is A principal and indivisible penalty that has no
service of theremoved after the fixed duration.
sentence. service of the
sentence, except: FINE and BOND TO KEEP THE PEACE: Penalties
1. Deprivation of the common to all.
public
office/employment; Fine
2. Loss of all rights to A pecuniary penalty which is imposed by the
court in case of the judgment of conviction.
retirement pay or
Instead of imprisonment, the penalty imposed is
pension for any
fine.
office formerly held.
If Temporary Absolute Disqualification is When is fine afflictive, correctional, or light
imposed as a principal penalty, its duration is penalty, whether imposed as a single or as an
6Y1D to 12Y [See Codal, pg. 43]. alternative? (Art. 26)
Scale of penalty Amount of fine
PRISION MAYOR (Art 27, 6y and 1d to 12y) Afflictive Exceeds P6,000
Correctional Not exceed P6,000 but
Correctional Penalties: not less than P 200
PRISION CORRECCIONAL (Art 27: 6m 1d to 6y) Light Less than P 200
ARRESTO MAYOR (1m 1d to 6m.) [See additional discussions on Fines in Art. 66,
SUSPENSION (6m 1d to 6y) after ISLAW]
Both a principal and an accessory penalty
In the imposition of fine, the court must look
Art. 27: Prision correccional, suspension, and not only at the circumstances which affect
destierro. — The duration of the penalties of criminal liability [AC,MC] but also the
prision correccional, suspension and destierro capability of the accused to pay.

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Bond to keep the peace
A principal penalty
Art. 35. Effects of bond to keep the peace. — It
shall be the duty of any person sentenced to give
bond to keep the peace, to present two sufficient
sureties who shall undertake that such person will
not commit the offense sought to be prevented,
and that in case such offense be committed they
will pay the amount determined by the court in
the judgment, or otherwise to deposit such
amount in the office of the clerk of the court to
guarantee said undertaking.
3. marital authority,
4. the right to manage his property and
5. the right to dispose his property by any act or
any conveyance inter vivos.
There is not prohibition to dispose of properties
mortis causa. Thus, a person under civil
interdiction can make a last will and testament
because the effect of the same is mortis causa or
after the death of such person, which is not
prohibited.
Donation is also allowed if it will take effect after
his death because that is mortis causa.

Bond to keep the Bond for good FORFEITURE AND CONFISCATION OF

peace behavior INSTRUMENTS AND PROCEEDS OF THE CRIME
[Not applicable to Applicable only to This is an accessory penalty which follows all
any particular case] cases of grave principal penalties.
threats and light Art. 45. Confiscation and forfeiture of the proceeds
threats. or instruments of the crime. — Every penalty
Failure to post a Failure to post a imposed for the commission of a felony shall carry
with it the forfeiture of the proceeds of the crime
bond to keep the bond for good
and the instruments or tools with which it was
peace results to behavior is destierro committed.
imprisonment under Art. 284. Such proceeds and instruments or tools
either for 6mo or shall be confiscated and forfeited in favor of the
30d, depending on Government, unless they be property of a third
whether the felony person not liable for the offense, but those articles
committed is grave which are not subject of lawful commerce shall be
or less grave on one destroyed.
hand, or a light
felony on the other. Thus, the rules on forfeiture are:
GR: The proceeds and instruments of the crime
Accessory Penalties are forfeited in favor of the government.
CIVIL INTERDICTION XPN: Unless they belong to a 3rd person who is
Under Articles 40 to 41, civil interdiction is an not a party to the crime.
accessory penalty that necessarily follows the XPN to XPN: if the articles are outside the
principal penalty of death, reclusion perpetua and lawful commerce of man.
reclusion temporal.
PAYMENT OF COST
Art. 34: Civil interdiction shall deprive the Cost refers to expenses of litigation
offender during the time of his sentence of the
rights of: Art. 37. Cost; What are included. — Costs shall
1. parental authority, include fees and indemnities in the course of the
2. guardianship, either as to the person or judicial proceedings, whether they be fixed or
property of any ward, unalterable amounts previously determined by

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law or regulations in force, or amounts not
subject to schedule.
Who shall pay the cost?
If an accused is convicted of a crime, cost shall be
adjudged against him. However, in case of
acquittal, each party must bear his own cost.
PREVENTIVE IMPRISONMENT
Art. 29. Period of preventive imprisonment
deducted from term of imprisonment. – Offenders
or accused who have undergone preventive
imprisonment shall be credited in the service of
their sentence consisting of deprivation of liberty,
with the full time during which they have
undergone preventive imprisonment if the
detention prisoner agrees voluntarily in writing
after being informed of the effects thereof and
with the assistance of counsel to abide by the same
disciplinary rules imposed upon convicted
prisoners, except in the following cases:
1. When they are recidivists, or have been
convicted previously twice or more times of
any crime; and
2. When upon being summoned for the execution
of their sentence they have failed to surrender
voluntarily.
If the detention prisoner does not agree to
abide by the same disciplinary rules imposed upon
convicted prisoners, he shall do so in writing with
the assistance of a counsel and shall be credited in
the service of his sentence with four-fifths of the
time during which he has undergone preventive
imprisonment.
Credit for preventive imprisonment for the
penalty of reclusion perpetua shall be deducted
from thirty (30) years.
Whenever an accused has undergone
preventive imprisonment for a period equal to the
possible maximum imprisonment of the offense
charged to which he may be sentenced and his
case is not yet terminated, he shall be released
immediately without prejudice to the continuation
of the trial thereof or the proceeding on appeal, if
the same is under review. Computation of
preventive imprisonment for purposes of
immediate release under this paragraph shall be
the actual period of detention with good conduct
time allowance: Provided, however, That if the
accused is absent without justifiable cause at any
stage of the trial, the court may motu
proprio order the rearrest of the
accused: Provided, finally, That recidivists,
habitual delinquents, escapees and persons
charged with heinous crimes are excluded from
the coverage of this Act. In case the maximum
penalty to which the accused may be sentenced
is destierro, he shall be released after thirty (30)
days of preventive imprisonment (As Amended by
RA 10592).
Preventive imprisonment is the detention of
accused while the case against him is ongoing
trial either because the crime he committed is a
non-bailable offense and evidence of guilt is
strong; or the crime committed is a bailable
offense but he does not have the funds.
Purpose of preventive imprisonment: Primarily
to prevent the flight of the accused. The days may
be deducted in his time of sentence.
Under Art 29 as amended by RA 10592, there shall
be full credit or deduction if he voluntarily agrees
in writing [a Detainee’s manifestation: a written
declaration executed in the presence of a counsel
with the same disciplinary rules imposed on
convicted felons]. Otherwise, only 4/5 credit of
his preventive imprisonment to the time of
sentence, if he executes a Detainee’s Waiver:
executed in writing in the presence of counsel that
he does not agree to abide by the same rules and
regulations for convicted felons. [reformat this,
turn this into table]
If the offender is a juvenile offender, the rules in
Art. 29 does not apply. Whether he agrees in
writing or not, there must be full deduction. What
applies is Sec. [29], RA 9344 [Check].
The offender is qualified if what is involved is
deprivation of liberty. Ex. Fine- not qualified for
deduction.
These are disqualified:
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1. Recidivist criminal liability of the the criminal liability of
2. Summoned to serve sentence but failed to offender. the offender.
appear voluntarily XPN: Marital Rape
(Art. 266-C). Pardon
If the offender has served preventive granted by the wife to
imprisonment equal to or greater than the the husband in case of
maximum penalty that maybe imposed, the said rape shall extinguish
prisoner shall be immediately released. This is criminal action
without prejudice to the continuation of trial of already filed and
the case in court. liability, or even the
penalty already
NOTE: If detention has already exceeded the imposed by the court.
possible maximum imprisonment of the offense It cannot exempt the Offended party can
charged but his case is not yet terminated, file a offender from the waive the civil liability.
case for Habeas Corpus for the immediate release payment of civil [Prosec: pardon
of the accused. indemnity. extinguishes civil
liability as it is
Can the period of preventive imprisonment be deemed a waiver]
deducted in case of destierro? Granted only after Pardon should be
Yes. Because destierro also involves deprivation conviction and may be given before the
of liberty and has a fixed duration of 6 months and extended to any institution of criminal
1 day to 6 years. If the maximum penalty that offender. prosecution and must
maybe imposed is destierro, immediate release after be extended to both
undergoing preventive imprisonment of 30 days. offenders (Art. 344).
Remedy: Petition for habeas corpus because such This is applicable only
detention is already arbitrary in nature. in cases of private
crimes:
In People vs Gambao Perpenian was convicted  Seduction,
as accomplice for kidnapping for ransom. She was  Abduction,
17yo [when she committed the crime]. From 17-  Acts of
31 she was behind bars. SC ordered her immediate lasciviousness, and
release. She already undergone preventive
 Rape.
imprisonment more than the time of sentence.
Absolute pardon totally extinguishes criminal
PARDON liability (Art. 89) while conditional pardon
Art. 36. Pardon; its effect. — A pardon shall not partially extinguishes criminal liability (Art. 94).
work the restoration of the right to hold public
office, or the right of suffrage, unless such rights The accused is exempted from criminal liability,
be expressly restored by the terms of the pardon. but pardon [by the President] does not extinguish
civil liability because the same is personal to the
Pardon by the Chief Executive vis-à-vis victim.
Pardon by the offended party (BAR 1994; GN
2016) Pardon granted by the President shall extinguish
Pardon by the Chief Pardon by the criminal liability. Absolute pardon is one of the
Executive offended party grounds for totally extinguishing criminal liability.
It extinguishes the It does not extinguish May only be given after conviction through final

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judgment. If the case is ongoing trial, the pardon
by the President has no effect to the criminal
action already filed in court. Also, pardon by the
President does not extinguish civil liability.
In addition, Presidential Pardon does not
automatically restore the following rights, and they
must be specifically stated by the terms of the
pardon:
1. to hold public office,
2. to vote and be voted, and
3. to exercise his right of suffrage.
[NOTE: This is not included in the CrimRev
Syllabus, but see Risos-Vidal v. COMELEC &
Estrada, G.R. No. 20666, 21 January 2015].
Prosec G: Answer first according to the provisions
of the RPC. Risks-Vidal case is controversial.
Eg. Senator X was convicted for plunder. The
president pardoned him. May Senator X now vote
and run for public office?
This is how to answer: The pardon did not
expressly restore the right to vote and be voted,
thus Sen. X cannot do so. However, in Risos-Vidal
xxx.
Pardon granted by the offended party, does not
extinguish the criminal liability of the offender
whether it is a public crime or a private crime when
the criminal action was already filed in court.
Ex: Accused killed the victim. The heirs filed a case
of homicide. There was an extrajudicial settlement
of the case. Family of the accused paid 1M to the
family of the victim. Family of the victim had
pardoned the said accused. Effect on the criminal
liability in an action already filed in court? None.
The participation of the private offended party is
only to recover civil indemnity. It is an EXPRESS
WAIVER to recover civil indemnity [?].
What if the crime committed is a private crime?
Will not extinguish criminal action already filed in
court.
Pardon by the private offended party only bars
CRIMINAL PROSECUTION. Hence, before the
institution of the criminal case against the said
accused. EXCEPTION: In case of Marital Rape.
PECUNIARY LIABILITIES
Art. 38. Pecuniary liabilities; Order of payment.
— In case the property of the offender should not
be sufficient for the payment of all his pecuniary
liabilities, the same shall be met in the following
order:
1. The reparation of the damage caused.
2. Indemnification of consequential damages
3. The fine.
4. The cost of the proceedings.
Pecuniary liabilities Pecuniary penalties
(Art. 25)
Imposed by the court Imposed by the court
in case of conviction in case of conviction.
but not as a penalty.
Four PLs: (see Art. 38) Only 2 PPs:
 Fine, and
 Payment of cost
SUBSIDIARY PENALTY [IMPRISONMENT]
 Is a substitute penalty for fine and fine alone.
[The] penalty [imposed] includes fine and the
convict happens to be insolvent.
 There must also be EXPRESS statement in
the judgment that in case of insolvency to pay
the fine, he shall suffer subsidiary
imprisonment. If no express statement, cannot
place him behind bars if insolvent. Why?
Because subsidiary penalty is not an accessory
penalty.
 Not a principal penalty nor an accessory
penalty, but only a substitute penalty for
fine.
 Rate has been amended by RA 10159 which
states: "If the convict has no property with
which to meet the fine mentioned m
paragraph 3 of the next preceding article, he
shall be subject to a subsidiary personal
liability at the rate of one day for each
amount equivalent to the highest minimum
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wage rate prevailing in the Philippines at the
time of the rendition of judgment of
conviction by the trial court" Highest
minimum wage now is P491. So 1 day
imprisonment is equivalent to P491.
 This highest min. Wage rate will always be
based in Metro Manila, because the MWR is
highest here.
Art. 39. Subsidiary Penalty. – If the convict has no
property with which to meet the fine mentioned in
paragraph 3 of the next preceding article, he shall
be subject to a subsidiary personal liability at the
rate of one day for each amount equivalent to the
highest minimum wage rate prevailing in the
Philippines at the time of the rendition of
judgment of conviction by the trial court, subject
to the following rules:
1. If the principal penalty imposed be prision
correctional or arresto and fine, he shall
remain under confinement until his fine
referred in the preceding paragraph is
satisfied, but his subsidiary imprisonment
shall not exceed 1/3rd of the term of the
sentence, and in no case shall it continue for
more than one year, and no fraction or part of
a day shall be counted against the prisoner.
2. When the principal penalty imposed be only a
fine, the subsidiary imprisonment shall not
exceed six months, if the culprit shall have
been prosecuted for a grave or less grave
felony, and shall not exceed fifteen days, if for
a light felony.
3. When the principal penalty imposed is higher
than prision correctional, no subsidiary
imprisonment shall be imposed upon the
culprit.
4. If the principal penalty imposed is not to be
executed by confinement in a penal institution,
but such penalty is of fixed duration
[indivisible penalty], the convict, during the
period of time established in the preceding
rules, shall continue to suffer the same
deprivations as those of which the principal
penalty consists. [Prosec G: He cannot be
sentenced to suffer subsidiary penalty].
5. The subsidiary personal liability which the
convict may have suffered by reason of his
insolvency shall not relieve him from the fine
in case his financial circumstances should
improve. (As amended by Republic Act No.
5465, which lapsed into law on April 21, 1969
[RA 10159]).
Note: if penalty is not to be executed by
confinement, but of fixed duration. Ex. if
suspension or destierro. Subsidiary imprisonment
shall also be destierro or suspension but shall not
exceed 1/3rd of the term of sentence and in no case
to continue for more than one year.
Q: What if the penalty is not to be executed by
confinement but with a fixed duration?
A: Apply rule 1: not exceed 1/3rd of the term but
not exceed 1 year.
Instances when convict cannot be made to
suffer subsidiary penalty
1. When the penalty imposed by the court does
not include fine,
2. Penalty includes fine but there is no express
statement in the judgment that in case of
insolvency to pay the fine, he shall suffer
subsidiary penalty,
3. When what the convict failed to pay is a fine
but reparation of damage caused or
indemnification for damages because
subsidiary penalty is a penalty against fine and
fine alone,
4. If the principal penalty that goes with fine
higher than prision correctional, and
5. If the principal penalty that goes with fine is not
to be executed by confinement in a penal
institution and without a fixed duration.
X was convicted of reckless imprudence causing
damage to property. Penalty imposed on him is
fine and public censure. Lower portion of the
decision “in case of insolvency to pay the fine, he
shall suffer subsidiary penalty”. The court is wrong
because the principal penalty that goes with fine is
public censure is not to be executed in a penal
institution and is an indivisible penalty.
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Accused convicted, Prision mayor and fine is
imposed. Decision “in case of insolvency to pay
the fine, he shall suffer subsidiary penalty”. The
court is wrong. Prision mayor is more than 6 years.
Accused convicted. Penalty imposed on him is fine
alone. The judgement became final and executory.
Unsatisfied writ of execution. Judge ordered for his
arrest to suffer subsidiary penalty. The court is
wrong. Failure to state that in case of insolvency to
pay the fine, convict cannot be made to suffer
subsidiary penalty.
Convict suffered subsidiary penalty. He went
home, his parents died, he got his inheritance. He
is now a rich man. The state learned about this. Can
the state go after him to pay the fine? Yes, because
his financial circumstances has already improved.
X was sentenced with public censure and fine. May
he be made to suffer subsidiary penalty?
NO: Public Censure is not to be executed by
confinement AND it has no fixed duration. Thus
subsidiary penalty is not applicable.
Q: What if the sentence is 20 counts of arresto mayor
and a fine of P200, and is made to suffer subsidiary
penalty in case of failure to pay fine due to
insolvency? Is the judge correct?
A: Yes.
20 arresto mayors totals to 10 years. However, Art.
70 applies because there is a successive service of
sentences. Therefore apply the three-fold rule:
thus, 3X of arresto mayor (max 6 months)=1 year 6
months.
After you apply the three-fold rule, determine
if whether subsidiary penalty [imprisonment]
applies under Art. 39. Since 1y 6m is within the
maximum for Art. 39, subsidiary imprisonment
may be ordered. Thus the judge is correct.
*Article 40-45 provide for the accessory
penalties,
*Art 30 -35 provide for the different accessory
penalties that attach to every principal
penalty.
COMPLEX CRIMES and SPECIAL COMPLEX
CRIMES (BAR 5X)
Article 48. Penalty for complex crimes. - When a
single act constitutes two or more grave or less
grave felonies, or when an offense is a necessary
means for committing the other, the penalty for
the most serious crime shall be imposed, the same
to be applied in its maximum period.
1. COMPOUND CRIME
Elements of compound crime:
1. Offender performs a single act;
2. The act resulted in two or more grave or
less grave felonies.
Basis: singularity of act, NOT singularity of
impulse.
Effect: Penalty for the most serious charge in its
maximum period. File only 1 information.
Example: aberratio ictus
A aimed the gun at B. But because of poor aim, it
shot C a pedestrian walking. Treachery was
attended. As to B, crime committed is attempted
murder. As to C, murder. Crime committed is
attempted murder.
A) A political rival placed a bomb on B’s car.
A person died, several persons injured
A single act placing the bomb produces two or less
grave felonies. Crime is murder with multiple
frustrated murder.
B) Two persons died: Double murder
C) Many persons died: Multiple murder with
multiple frustrated murder.
D) Machine gun was used, different bullets come
out, 10 people were killed. Multiple murder or 10
counts of murder?
As many crimes are there are as many persons.
Not a compound crime therefore.
X placed a bomb under the car of Y. When Y and
wife and 3 children opened the car, it exploded.
Children survived due to medical treatment. H and
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W died. It resulted to 5 grave felonies. 2 murder
and 3 frustrated murder. Crime: Double murder
with multiple frustrated murder. One information
because it is a complex crime.
In the same problem, H opened the car, all of them
died. X is liable for multiple murder because the
single act of placing a bomb resulting to 5 grave
felonies. Only one charge/one information filed in
court- multiple murder.
X is armed with M-16 high powered rifle, machine
gun. He went inside the conference room. One
pull of trigger, many bullets came out hitting 5
persons. X is liable for 5 counts of murder. Not a
complex crime.
If the weapon used is a high powered machine gun,
you do not take into consideration the single act of
pulling the trigger but the number of bullets that
came out of the body of the gun and killed and
wounded the offended party.
People vs Punzalan, G.R. No. 199892, 10
December 2012: Complex crime of Double
murder with multiple attempted murder. Single act
of stepping in the accelerator of the vehicle and
swerving and ramming over the victims resulting
to death and attempt to kill the other.
Facts: Punzalan, smelling of liquor, drove a Nissan
van and ran over several Navy personnel, with
whom he earlier in the afternoon had an argument
in a videoke bar. Two seamen (SN1 Andal and SN1
Duclayna) died as a result, three others were hit
(SN1 Cuya, SN1 Bacosa & SN1 Bundang), while
one (SN1 Domingo) was not hit.
Punzalan was charged in the RTC for the incident,
and the trial court convicted Punzalan for the
complex crime of double murder with multiple
attempted murder, and the CA affirmed the
conviction.
Issue: Whether Punzalan is guilty of double
murder with multiple attempted murder.
Ruling: Appeal DENIED.
The felony committed by Punzalan as correctly
found by the RTC and the Court of Appeals,
double murder with multiple attempted
murder, is a complex crime contemplated under
Article 48 of the Revised Penal Code.
Punzalan was animated by a single purpose, to kill
the navy personnel, and committed a single act of
stepping on the accelerator, swerving to the right
side of the road ramming through the navy
personnel, causing the death of SN1 Andal and
SN1 Duclayna and, at the same time, constituting
an attempt to kill SN1 Cuya, SN1 Bacosa, SN1
Bundang and SN1 Domingo. The crimes of
murder and attempted murder are both grave
felonies as the law attaches an afflictive penalty to
capital punishment (reclusion perpetua to death) for
murder while attempted murder is punished by
prision mayor, an afflictive penalty [end].
People v. Nelmida, G.R. No. 184500, 18
September 2012
Ambush of Mayor Tawan-tawan. Repeated firing
resulted to 2 deaths and wounding of the others.
SC: convicted each accused of 2 counts of murder
and 7 counts of attempted murder. Complexity of
crimes under Art 48 does not apply because the
ACT IS NOT A SINGLE ACT, there are
SEVERAL OFFENDERS PERFORMING
DIFFERENT ACTS using different firearms.
There are as many crimes committed as there are
as many persons killed or wounded.
FACTS: Mayor Tawan-Tawan of Salvador, Lanao
Del Norte, with his security escorts composed of
members of the Army, PNP and civilian aides were
onboard his pick-up service vehicle on their way
home. Appellants Wenceslao Nelmida & Ricardo
Ajok, together with other armed men, waited in
ambush for Mayor Tawan-tawan’s vehicle. When
the pick-up passed the group, Nelmida, Ajok and
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his group opened fire, killing PO3 Dela Cruz &
T/Sgt. Dacoco, while the other security escorts of
the Mayor were injured. Mayor Tawan-tawan and
Palanas were unharmed.
An information for double murder with
multiple frustrated murder and double
attempted murder was filed in the RTC of
Kapatagan, Lanao Del Norte, against appellants
Nelmida and Ajok, as well as Serafico, Bacong, Sr.,
Bacong Jr., Abarquez, Bartolo, Espanola,
Paninsuro, Casinillo, and other John Does. Only
Nelmida, Ajok and Samuel Cutad were arrested,
and the latter was discharged as state witness. Both
Nelmida and Ajok alleged that they were not at the
crime scene at the time of the shooting.
The RTC convicted Nelmida and Ajok as charged.
The CA affirmed the conviction.
ISSUE: Whether the conviction for double
murder with multiple frustrated murder and
double attempted murder is correct.
RULING: No.
The trial court, as well as the appellate court,
convicted appellants of double murder with
multiple frustrated murder and double attempted
murder. This Court believes, however, that
appellants should be convicted not of a
complex crime but of separate crimes of two
(2) counts of murder and seven (7) counts of
attempted murder as the killing and wounding of
the victims in this case were not the result of a
single act but of several acts of the appellants, thus,
making Article 48 of the Revised Penal Code
inapplicable.
What brings this case out of the ordinary is the
issue of applicability of Article 48 of the Revised
Penal Code. Its resolution would determine
whether the conviction of appellants must be for
the separate crimes of two (2) counts of murder
and seven (7) counts of attempted murder or of the
complex crime of double murder with multiple
frustrated murder and double attempted murder.
In a complex crime, two or more crimes are
actually committed, however, in the eyes of the law
and in the conscience of the offender they
constitute only one crime, thus, only one penalty is
imposed. There are two kinds of complex crime.
The first is known as compound crime, or when
a single act constitutes two or more grave or less
grave felonies while the other is known as
complex crime proper, or when an offense is a
necessary means for committing the other. The
classic example of the first kind is when a single
bullet results in the death of two or more persons.
A different rule governs where separate and
distinct acts result in a number killed. Deeply
rooted is the doctrine that when various
victims expire from separate shots, such acts
constitute separate and distinct crimes.
Evidently, there is in this case no complex crime
proper. And the circumstances present in this case
do not fit exactly the description of a compound
crime. From its factual backdrop, it can easily be
gleaned that the killing and wounding of the
victims were not the result of a single discharge of
firearms by the appellants and their co-accused. To
note, appellants and their co-accused opened fire
and rained bullets on the vehicle boarded by Mayor
Tawan-tawan and his group. As a result, two
security escorts died while five (5) of them were
wounded and injured. The victims sustained
gunshot wounds in different parts of their bodies.
Therefrom, it cannot be gainsaid that more than
one bullet had hit the victims. Moreover, more
than one gunman fired at the vehicle of the victims.
As held in People v. Valdez, each act by each gunman
pulling the trigger of their respective firearms,
aiming each particular moment at different persons
constitute distinct and individual acts which cannot
give rise to a complex crime.
Obviously, appellants and their co-accused
performed not only a single act but several
individual and distinct acts in the commission of
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the crime. Thus, Article 48 of the Revised Penal
Code would not apply for it speaks only of a
“single act.”
With the presence of conspiracy in the case at
bench, appellants and their co accused had
assumed joint criminal responsibility - the act of
one is the act of all. The ascertainment of who
among them actually hit, killed and/or caused
injury to the victims already becomes immaterial.
Collective responsibility replaced individual
responsibility. The Lawas doctrine, premised on
the impossibility of determining who killed whom,
cannot, to repeat, be applied.
Interestingly, in People v. De los Santos, People v.
Abella, People v. Garcia and People v. Pincalin, this
Court also applied Article 48 of the Revised Penal
Code even though several acts were performed by
the accused and conspiracy attended the
commission of the crime.
In applying Article 48 of the Revised Penal Code
in Garcia and Pincalin, this Court, gave the same
justification as in Abella: that both cases were
covered by the rule that “when for the
attainment of a single purpose, which
constitutes an offense various acts are
executed, such acts must be considered as
only one offense, a complex one.”
Correspondingly, “where a conspiracy animates
several persons with a single purpose, their
individual acts done in pursuance of that
purpose are looked upon as a single act, the act
of execution, giving rise to a complex offense.
Various acts committed under one criminal
impulse may constitute a single complex offense.
We however found no intention by this Court to
establish as doctrine, contrary to Lawas, that Article
48 is applicable even in cases where several acts
were performed by the accused and conspiracy
attended the commission of the crime. In Pincalin,
this Court has already clarified that: [n]onetheless,
this Court further held that “in other cases where
several killings on the same occasion were
perpetrated, but not involving prisoners, a
different rule may be applied, that is to say, the
killings would be treated as separate offenses, as
opined by Mr. Justice Makasiar and as held in some
decided cases.”
De los Santos, Abella, Garcia and Pincalin, therefore,
were exceptions to the general rule stated in Article
48 which exceptions were drawn by the peculiar
circumstance of the cases.
The application of the Abella doctrine, has already
been clarified in Pincalin, thus: where several
killings on the same occasion were perpetrated, but
not involving prisoners, a different rule may be
applied, that is to say, the killings would be treated
as separate offenses. Since in Sanidad, the killings
did not involve prisoners or it was not a case of
prisoners killing fellow prisoners. As such, Abella
would not apply.
To repeat, in Lawas, this Court was merely forced
to apply Article 48 of the Revised Penal Code
because of the impossibility of ascertaining the
number of persons killed by each accused. Since
conspiracy was not proven therein, joint criminal
responsibility could not be attributed to the
accused. Each accused could not be held liable for
separate crimes because of lack of clear evidence
showing the number of persons actually killed by
each of them.
Proven conspiracy could have overcome the
difficulty.
Our repeated ruling is that in conspiracy, the act of
one is the act of all. It is as though each one
performed the act of each one of the conspirators.
Each one is criminally responsible for each one of
the deaths and injuries of the several victims. The
severalty of the acts prevents the application of
Article 48. The applicability of Article 48
depends upon the singularity of the act, thus
the definitional phrase “a single act constitutes
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two or more grave or less grave felonies.” This
is not an original reading of the law. In People v.
Hon. Pineda, the Court already recognized the
“deeply rooted x x x doctrine that when various
victims expire from separate shots, such acts
constitute separate and distinct crimes.” As we
observed in People v. Tabaco, clarifying the
applicability of Article 48 of the [Revised Penal
Code], [this Court] further stated in [Hon.] Pineda
that “to apply the first half of Article 48, x x x
there must be singularity of criminal act;
singularity of criminal impulse is not written
into the law.”
With all the foregoing, this Court holds
appellants liable for the separate crimes of two
(2) counts of murder and seven (7) counts of
attempted murder [end].
2. COMPLEX CRIME PROPER
When the offense is a necessary means to
commit the other offense.
Elements of Complex Crime Proper:
1. Two offenses are committed,
2. One offense is a necessary means to
commit the other,
3. Both offenses are punished by the same
statute
Effect: like compound crimes, the penalty for the
most serious crime shall be imposed, in its
maximum period.
Examples:
a) Rape with forcible abduction - A was on the
ladder of the house, B a woman abducted her
against her will and with lewd design
b) Estafa thru falsification of public document.
Person falsifies a public document -
Falsification is a necessary means to defraud
another;
No estafa by falsification of private document.
A cash voucher was falsified. A cash voucher is
not a commercial document because it is not
defined or regulated by the Code of Commerce or
other mercantile laws. It is a private document.
No crime such as estafa with falsification of
private document. When it is falsified, determine
what to charge. Only one charge. Damage is
essential element of both. There can be no twice
recovery for damages. Damage not an element of
falsification of public document.
If estafa cannot be committed without
falsification - falsification is the correct charge,
estafa is merely a consequence. But if estafa can
be committed without falsifying – estafa is the
correct charge, falsification is only incidental.
3. SPECIAL COMPLEX CRIME
In reality two or more crimes committed but in the
eyes of law only one. The law provides what
crimes would be complexed and what crimes go
together.
Examples:
a) Robbery with homicide - A was robbing the
house, in course of robbery the owner of house
was awaken, he shot the owner, Art. 294:
reclusion perpetua to death,
b) Kidnapping with homicide- A kidnapped B,
when b is trying to escape he shot B. Law
provides for specific penalty which is death
c) Rape with homicide - A raped B, after raping he
killed B. Art 266B – reclusion perpetua to death
if in occasion of rape, homicide is committed.
d) Attempted Rape with Homicide- There is an
attempt to rape the victim. In the course
thereof, he killed the victim;
Special complex Complex Crime
crime (Art. 48)
Law provides what Two or more grave or
offense which should less grave offense, or
be complexed. an offense is a
necessary means to
commit the other.
The law provides for The penalty for the
the specific penalty for most serious offense is
the combined crimes. imposed in the
maximum period.
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If a light felony is If a light felony is
committed, generally, committed, generally,
it is absorbed by the it brings about a
said special complex separate and distinct
crime. charge.
4. CONTINUED CRIME, CONTINUOUS
CRIME, DELICTO CONTINUADO
When the offender is impelled by a single
criminal impulse commits a series of overt acts
in about the same time and about the same place
violating one and the same provision of law.
Requisites of Delicto Continuado (Defensor-
Santiago v. Garchitorena & People):
1. Plurality of acts performed during a
period of time;
2. Unity of penal provisions violated;
3. Unity of criminal purpose or aim.
Basis is singularity of impulse.
In the book of Reyes, there are many example of
this.
Example. A, B, C, D lives in one compound. All
engaged in the business of selling rooster. One
night, 11:00 in the evening here comes X. While
they were sleeping, X took the rooster of A, then
of B, then of C, then of D. How many crimes will
you file against X?
Crime committed is one charge of theft. X
impelled by a single impulse committed overt
acts leading to theft.
Q: X has been designated by a condominium
company to sell its condominium units. However,
he is not entrusted to collect the amortization fees
from the buyers. But X is in need of money. One
day, say on March 1, he went to the first unit owner
A and he collected the amortization fees
amounting to P10,000. He also went to the second
unit owner B and collected the amount of
P10,0000 amortization fees. Then, he also went to
the third unit owner C and collected the P10,000
amortization fees. Lastly, went to the fourth unit
owner D and collected the P10,000 amortization
fees too. So, all in all, he collected P40,000
amortization fees. He appropriated this collections
for his own benefit. He was not tasked and
entrusted by the company to make these
collections. How many crimes of estafa have been
committed by X?
A: X committed only 1 count of estafa because
it is considered as a continuous crime or delito
continuando. He is impelled by a single criminal
impulse and committed a series of overt acts in
about the same time and about the same place, in
the same condominium unit, violating one and
the same provision of law.
Defensor-Santiago v. Justice Garchitorena &
People, G.R. No. 109266, 2 December 1993.
Facts: Petitioner Miriam Defensor-Santiago was
charged in the Sandiganbayan with the violation of
Sec. 3(e) the Anti-Graft & Corrupt Practices Act
for favoring 32 “unqualified” aliens with the
benefits of the Alien Legalization Program.
Defender-Santiago moved for a bill of particulars,
contending that unless she be provided with the
names and identities of the “aliens” she would not
be able to adequately prepare for trial. Initially, the
public prosecutors stated that they would file only
one amended complaint, but they later filed 32
amended informations, separately naming each of
the aliens in each of the informations. The
Sandiganbayan admitted the 32 amended
informations.
Issue: Whether the admission of 32 amended
informations was correct.
Ruling: No. Sandiganbayan is ordered to
consolidate the 32 amended informations into
1 information charging only 1 offense.
5. CONTINUING CRIME OR TRANSITORY
OFFENSE
This is more on remedial law not in criminal law.
The offender may be prosecuted in any courts of
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the place where any of the crime has been felony is general terms, it shall be understood as
committed. applicable to the consummated felony.

Limitation: the moment he is prosecuted in one
court, he can no longer be prosecuted in any other
court.
Example: violation of BP 22.
X in payment of his obligation, issued a postdated
check to Y in Manila, on the maturity date, Y
deposited the check to his depositary bank in
Quezon City. The check however was dishonored
by the drawee bank in Caloocan City.
Notice of dishonor was sent. X failed to make
good the check. Where may Y file the case for
violation of BP 22? Before the MTC of Manila?
Before the MTC of Quezon City? Before the MTC
of Caloocan City?
A: In any of the aforementioned courts because
the elements of the crime happened in any of these
places. Provided the BP 22 case has already been
filed in the MTC of Manila, the said case can no
longer be filed before the MTC of Quezon City or
Caloocan City.
NOTE: not all cases of estafa are continuing
crimes. Only estafa by post-dating a check (Art.
315(2)(d)).
Art. 46. Penalty to be imposed upon principals in
general. — The penalty prescribed by law for the
commission of a felony shall be imposed upon the
principals in the commission of such felony.
Whenever the law prescribes a penalty for a
Under Article 46, the penalty prescribed by law
for every felony shall only be applied to
principals, accomplice and shall be only imposed
to consummated felonies. How about to
frustrated homicide, accessory penalties?
Ex: Homicide under Art. 249 - Penalty is Reclusion
Temporal - this penalty shall be the one imposed on
the principal offender in homicide/consummated
homicide
What if an offender is an accomplice/accessory?
Or if the penalty is in the frustrated or attempted
stages?
GR: Arts. 50-57 provides that if the offender is an:
Accomplice, you go 1 degree lower
Accessory - 2 degrees lower from the penalty
prescribed by law
Frustrated Stage - 1 degree lower from the penalty
prescribed by law
Attempted Stage - 2 degrees lower from the
penalty prescribed by law
XPN: Art. 60 - Even if Arts. 50-57 provide for the
rules as to the imposition of penalties on an
accomplice/accessory, frustrated or attempted
stages, if the law specially provides a penalty for a
mere frustration or attempt, and for the
accomplice or accessory, that specifically provided
by law shall be the one imposed and not the
provisions in Arts. 50-57. See table below:

Penalties imposed on principals, accomplices & accessories in accordance to the stages of

committing a felony (Arts. 50-57) [GN 2016]
CONSUMMATED FRUSTRATED ATTEMPTED
PRINCIPALS Penalty prescribed by 1 degree lower than the 2 degrees lower than the
law for the offense. penalty prescribed by penalty prescribed by
law. law.
ACCOMPLICES 1 degree lower than the 2 degrees lower than the 3 degrees lower than the
penalty prescribed by penalty prescribed by penalty prescribed by
law. law for a frustrated law for [an attempted]
felony. felony.

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ACCESSORIES 2 degrees lower than the 3 degrees lower than the 4 degrees lower than the
penalty prescribed by penalty prescribed by penalty prescribed by
law. law for [a frustrated] law for an attempted
felony. felony.

NOTE:
GR:
1. Penalties are imposed upon the principals,
2. Whenever the law prescribes a penalty for a felony in general terms, it shall be understood to apply to
a consummated felony.

XPN: These shall not apply if:

1. The law expressly provides penalties for accomplices and accessories of a crime,
2. The law expressly provides penalties for frustrated and attempted stages.

Art. 62. Effects of the Attendance of Mitigating or
Aggravating Circumstances and of Habitual
Delinquency. — Mitigating or aggravating
circumstances and habitual delinquency shall be
taken into account for the purpose of diminishing
or increasing the penalty in conformity with the
following rules:
1. Aggravating circumstances which in
themselves constitute a crime specially
punishable by law or which are included by
the law in defining a crime and prescribing the
penalty therefor shall not be taken into
account for the purpose of increasing the
penalty.
1(a). When in the commission of the crime,
advantage was taken by the offender of his
public position, the penalty to be imposed shall
be in its maximum regardless of mitigating
circumstances.
The maximum penalty shall be imposed if
the offense was committed by any person who
belongs to an organized/syndicated crime
group.
An organized/syndicated crime group
means a group of two or more persons
collaborating, confederating or mutually
helping one another for purposes of gain in the
commission of any crime (As amended by RA
7659).
2. The same rule shall apply with respect to any
aggravating circumstances inherent in the
crime to such a degree that it must of necessity
accompany the commission thereof.
3. Aggravating or mitigating circumstances
which arise from the moral attributes of the
offender, or from his private relations with the
offended party, or from any other personal
cause, shall only serve to aggravate or mitigate
the liability of the principals, accomplices and
accessories as to whom such circumstances are
attendant.
4. The circumstances which consist in the
material execution of the act, or in the means
employed to accomplish it, shall serve to
aggravate or mitigate the liability of those
persons only who had knowledge of them at
the time of the execution of the act or their
cooperation therein.
5. Habitual delinquency shall have the following
effects:
(a) Upon a third conviction, the culprit shall be
sentenced to the penalty provided by law for
the last crime of which he be found guilty and
to the additional penalty of prisión
correccional in its medium and maximum
periods;
(b) Upon a fourth conviction, the culprit shall be
sentenced to the penalty provided for the last
crime of which he be found guilty and to the
additional penalty of prisión mayor in its
minimum and medium periods; and
(c) Upon a fifth or additional conviction, the
culprit shall be sentenced to the penalty

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provided for the last crime of which he be
found guilty and to the additional penalty of
prisión mayor in its maximum period to
reclusión temporal in its minimum period.
Notwithstanding the provisions of this
article, the total of the two penalties to be imposed
upon the offender, in conformity herewith, shall
in no case exceed 30 years.
For the purpose of this article, a person
shall be deemed to be habitual delinquent, if
within a period of ten years from the date of his
release or last conviction of the crimes of serious
or less serious physical injuries, [robbery, theft,
estafa, or falsification], he is found guilty of any
of said crimes a third time or oftener.
Public officer taking advantage of his public
position is no longer generic aggravating
circumstances that can be offset because by virtue
of RA 7659 it is now a special aggravating
circumstance. The maximum penalty prescribed
by law.
Organized or Syndicated crime group- Group of
two or more persons collaborating, confederating
and mutually helping another for purposes of gain
in the commission of the crime. The maximum
penalty prescribed by law if offender is found or
the fact that he is a member of this group. It is a
special aggravating circumstance under this
article.
If the information charges A, B, C, D as
collaborating, confederating and mutually
helping another for purposes of gain in the
commission of the crime. This is what the
information alleges. Trial found this so. The judge
considered conspiracy and considered this
special aggravating circumstance. Is the court
correct?
Answer: The judge is not correct. Before the
special aggravating circumstance be considered
the court, evidence must show was held to
commit crimes involving gain. There must be
evidence to show.
HABITUAL DELINQUENCY
QUASI-RECIDIVISM (Art. 160): a Special AC.
[NOTE: Discussions on HD and QR were
transferred to the section on Aggravating
Circumstances, pg. 143 onwards]
Article 63. Rules for the application of indivisible
penalties. - In all cases in which the law prescribes
a single indivisible penalty, it shall be applied by
the courts regardless of any mitigating or
aggravating circumstances that may have
attended the commission of the deed.
In all cases in which the law prescribes a
penalty composed of two indivisible penalties, the
following rules shall be observed in the
application thereof:
1. When in the commission of the deed there is
present only one aggravating circumstance,
the greater penalty shall be applied.
2. When there are neither mitigating nor
aggravating circumstances and there is no
aggravating circumstance, the lesser penalty
shall be applied.
3. When the commission of the act is attended by
some mitigating circumstances and there is no
aggravating circumstance, the lesser penalty
shall be applied.
4. When both mitigating and aggravating
circumstances attended the commission of the
act, the court shall reasonably allow them to
offset one another in consideration of their
number and importance, for the purpose of
applying the penalty in accordance with the
preceding rules, according to the result of such
compensation.
*When there is a privileged mitigating
circumstance, apply it first before computing the
penalties.
Example: [Single, indivisible penalty:] Rape,
penalty is reclusion perpetua. If the penalty is single
and indivisible, it shall be imposed as is, without
consideration of any AC or MC.
What if the crime was murder: penalty is reclusion
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perpetua to death: two indivisible penalties.
If there is one AC: greater penalty (death).
If there is one MC, no AC: lesser penalty (reclusion
perpetuaI).
If there is no MC or AC: lesser penalty.
If there are MCs or ACs: offset, then apply the
above rules.
NOTE: Don’t consider ISLAW, because it does
not apply in indivisible penalties.
Article 64. Rules for the application of penalties
which contain three periods. - In cases in which the
penalties prescribed by law contain three periods,
whether it be a single divisible penalty or
composed of three different penalties, each one of
which forms a period in accordance with the
provisions of Articles 76 and 77, the court shall
observe for the application of the penalty the
following rules, according to whether there are or
are not mitigating or aggravating circumstances:
1. When there are neither aggravating nor
mitigating circumstances, they shall impose
the penalty prescribed by law in its medium
period.
2. When only a mitigating circumstances is
present in the commission of the act, they shall
impose the penalty in its minimum period.
3. When an aggravating circumstance is present
in the commission of the act, they shall impose
the penalty in its maximum period.
4. When both mitigating and aggravating
circumstances are present, the court shall
reasonably offset those of one class against the
other according to their relative weight.
5. When there are two or more mitigating
circumstances and no aggravating
circumstances are present, the court shall
impose the penalty next lower to that
prescribed by law, in the period that it may
deem applicable, according to the number and
nature of such circumstances. [Lower by 1
degree in its proper period. Also apply PMC first]
6. Whatever may be the number and nature of
the aggravating circumstances, the courts
shall not impose a greater penalty than that
prescribed by law, in its maximum period.
7. Within the limits of each period, the court
shall determine the extent of the penalty
according to the number and nature of the
aggravating and mitigating circumstances and
the greater and lesser extent of the evil
produced by the crime.
Degree of penalty
Is a penalty prescribed by law for every crime
committed whether divisible or indivisible.
Period of penalty
Refers to the subdivision of every said divisible
penalty into three portions, the first portion is
minimum, second is medium, third is maximum
Indivisible penalty - penalty with no fixed
duration:
 death,
 reclusion perpetua,
 perpetual absolute disqualification,
 perpetual special disqualification,
o NOTE: Temporary DQ has a duration.
 public censure, and
 fine.
Divisible penalty - penalty with fixed duration
and therefore can be divided into three periods.
The first portion is minimum, second is medium,
and third is maximum.
Article 27 was amended by RA 7659. Reclusion
perpetua has now a duration 20 years and 1 day.
But in People v Lucas, the SC said that there is no
clear legislative intent to make reclusion perpetua
divisible despite the amendment. When reclusion
perpetua is imposed as penalty, there is no need
to state duration. Hence it remains indivisible.
INDETERMINATE SENTENCE LAW (ISLAW)
Indeterminate Sentence Law (RA 4103)
modifies the imposition of penalty. It is applied
both to RPC and special laws. It provides for a
minimum and max term, such that the moment
the offender serves the minimum of the sentence,
he shall be eligible for parole. If granted, he will
serve the remainder of the sentence out of prison,
but subject to the supervision of the parole officer.
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The ISLAW is related to Art. 64 of the RPC.
Courts are mandated to fix a minimum term of
sentence and maximum term of sentence. When
he served minimum, he can be release for parole
under conditions. Under parole he is released but
under supervision of parole officer.
Objectives of ISLAW:
1. Uplift and redeem valuable human material,
and
2. Avoid unnecessary and excessive deprivation
of liberty.
Objectives are attained when the moment the
offender becomes eligible to apply for parole he
may be able to serve sentence out of jail.
Parole - conditional release of the offender form
the correctional institution after serving
minimum sentence after showing that he has
reformed. Note it does not extinguish criminal and
civil liability.
Requisites [Sec. 5?]
1. He must be placed in prison/jail to serve an
indeterminate sentence which exceeds 1 year
2. Served minimum term of sentence
3. Board of pardons and parole found that his
release is for greater interest of society.
ISL applies to all offenders and all felonies.
This act shall not apply to persons:
1. Convicted of offenses punished by death or life
imprisonment (reclusion perpetua is included,
based on jurisprudence);
2. Those convicted of
a. treason,
b. conspiracy or proposal to commit treason,
c. misprision of treason,
d. rebellion,
e. sedition, or
f. espionage,
3. Those convicted of piracy,
4. Those who are habitual delinquents,
NOTE: Recidivists are entitled to an
indeterminate sentence (People v. Jaranilla,
GR No. 28547, Feb. 22, 1974).,
5. Those who shall have escaped from
confinement or evaded sentence.
NOTE: A minor who escaped from
confinement in the reformatory is entitled to
the benefits of the law because confinement is
not considered imprisonment. (People v.
Perez, 44 OG 3884) (1991 Bar)).
6. Those who having been granted conditional
pardon by the President shall have violated
the terms thereof.
7. Those whose maximum period of
imprisonment does not exceed one year.
Effect of disqualification: Those not given an
indeterminate sentence are given a straight
penalty. There is no minimum or maximum
period; they have to serve the entire term of the
penalty.
Q: A final judgment was rendered against X. He
was granted conditional pardon by the Chief
Executive. He violated the terms and conditions of
the said pardon. He was charged with evasion of
service of sentence. Finding him guilty, can the
court impose upon him an indeterminate sentence?
A: NO. Because he is among those disqualified
under the law. By violating the condition of his
pardon he cannot avail of an indeterminate
sentence law.
Q: X has been convicted of final judgment of
serious physical injuries, thereafter he committed
homicide and the judge found him guilty of
homicide. Can the judge impose upon him an
indeterminate sentence?
A: X here is a recidivist. A recidivist is [disqualified]
qualified under the law from availing the ISL. Only
habitual delinquents can[not] be given an
indeterminate sentence.
Computation of penalties under ISLAW
Violation of the RPC - consider attendant
mitigating or aggravating circumstance.
1. Get first the maximum term of sentence with
all the attendant circumstances, in accordance
with Art. 64 (Acs and MCs).
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2. Then, lower it the one degree. Do not consider
anymore the attendant circumstances. This
applies to sound discretion of the court. So no
attendant circumstance shall be considered.
[NOTE: reword this in accordance with the
codal. I might as well include an illustration].
EXAMPLES OF ISL/PENALTIES:
Penalty for SIMPLE RAPE is the single
indivisible penalty of reclusion perpetua.
Whatever mitigating or aggravating circumstances
attended the commission of the crime, the penalty
to be imposed by law shall be “as is” – reclusion
perpetua.
Ex: Offender in the commission of an offense of
rape also committed one mitigating circumstance,
and then another mitigating circumstance, it was
done in an immediate vindication of a grave
offense. If there are 2 mitigating circumstances, the
judge cannot consider these because the penalty
imposed by law is a single indivisible penalty under
Art. 63, it shall be imposed as is regardless of
aggravating or mitigating circumstances.
Q: What if in the crime of RAPE, when the
penalty prescribed is a SINGLE
INDIVISIBLE PENALTY, it shall be
imposed “as is”.
Q: What if the crime committed is MURDER?
Under 248, the penalty for murder is
RECLUSION PERPETUA TO DEATH. It
consists of 2 indivisible penalties.
NO mitigating and 1 aggravating:
The law provides that let us say, the murder was
committed in the dwelling of the offended party/
so there is one mitigating circumstance and no
aggravating circumstance. The law provides the
greater penalty, death, shall be the one imposed.
No aggravating but 1 mitigating:
But what if in the commission of the crime there is
no aggravating circumstance, but there is 1
mitigating circumstance. Let us say of a passion
and obfuscation. The commission of the crime of
murder was committed by one mitigating
circumstance of passion and obfuscation. Art. 63,
provides the lesser of the penalty imposed by law
shall be imposed (reclusion perpetua).
No mitigating and no aggravating
circumstance:
In the commission of the crime of murder, no
mitigating and no aggravating circumstance, the
lesser penalty, shall be the one imposed.
2 mitigating and 1 aggravating:
In the commission of murder, both mitigating
(voluntary surrender and immediate vindication of
a grave offense) and aggravating (dwelling), so we
have 2 mitigating and 1 aggravating, Art 63
provides that you offset the 2 and apply the rules.
You offset the dwelling with voluntary surrender,
there is still one mitigating circumstance of
immediate vindication of a grave offense therefore,
the lesser penalty, reclusion perpetua shall be the one
imposed.
Privileged Mitigating Circumstance
The only MC that can defeat an indivisible
penalty is a PMC.
Eg. What if rape is committed by a MINOR? So
we have here minority, which is a PRIVILEGED
MITIGATING CIRCUMSTANCE. Since it is a
privilege mitigating circumstance, apply it first
before computing the penalty, you lower reclusion
perpetua by 1 degree. It will now become reclusion
temporal. Now that it is reclusion temporal, it is now a
divisible penalty, you can now apply Art. 64 and
consider the rules provided for.
*So even if a single indivisible penalty, if in the
commission thereof, there is a privilege mitigating
circumstance, the said privilege mitigating
circumstance can be applied to a single indivisible
penalty.
NOTE: If there are several PMC’s lower the
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[maximum] penalty by 1 degree as many times as
there are PMCs. Afterwards, if there 2 OMCs
remaining, lower the penalty again by 1 degree, and
if there still remains an OMC, the penalty shall be
imposed in the minimum period.
Violation of Special Penal Law
ISL law - Not be less that the minimum and shall
not exceed maximum sentence prescribed by law.
Ex: Anti-Carnapping law. A person carnapped a
vehicle. In carnapping he used violence. Section
14 of the law, if committed with violence 17 years
and 4 months to 13 years. As is or 18 to 25 years
as long as be less that the minimum and shall not
exceed maximum sentence prescribed by law.
Q: The crime committed is illegal fishing with the
use of explosives. The penalty prescribed by law is
20 years to life imprisonment. What penalty shall
be imposed by the court?
A: The law says if it is a violation of special penal
law and the said special penal law does not use the
enumeration of penalties in the RPC, the
maximum term of the sentence shall not exceed
the maximum penalty prescribed by law and the
minimum term of sentence shall not be less than
the minimum penalty prescribed by law.
This is a decided case. The accused was caught
because of illegal fishing. The penalty imposed by
law is 20 years to life imprisonment. The judge
imposed him the penalty of straight 30 years. Is the
judge correct?
A: The Supreme Court said NO. Since the penalty
prescribed by law is 20 years to life imprisonment,
it means that the penalty to be imposed upon the
convict must be an indeterminate sentence. SC said
the penalty must be 20 years (minimum term) to 25
years (maximum term).
Q: Let us say the crime committed is carnapping
with use of force and violence. So the penalty
prescribed by law is 17 years and 4 months to 30
years. If you were the judge convicting the accused,
what penalty shall be imposed?
A: Any penalty provided that it shall note exceed
30 years and it will not be less than 17 years and 4
months. Because the law says the maximum term
of sentence in case of violation of special penal law
shall not exceed the maximum term of penalty
prescribed by law and shall not be less than the
minimum penalty prescribed by law.
Other examples [15 March 2017]:
E.g. Highjacking: Penalty is 12y-20y imprisonment.
Maximum: not more than 20 years
Min: not less than 12 years.
This is dependent on the sound discretion of the
court.
Violation of RPC Art 64 and act 4103 of ISL are
related.
A abducted B with lewd design. His intention was
rape. But before he raped B he was arrested.
Crime is forcible abduction. Penalty is reclusion
temporal. No mitigating and aggravating
circumstance.
Maximum term will be reclusion temporal in
medium period.
Minimum term - 1 degree lower without
attendant circumstance. Prision mayor. In the
range of prision mayor because minimum term is
in the sound discretion of the court.
What if there is voluntary surrender? This is an
ordinary mitigating circumstance.
Maximum term will be reclusion temporal in
minimum period.
Minimum term: 1 degree lower without attendant
circumstance. Prision mayor. In the range of
prision mayor because minimum term is in the
sound discretion of the court.
What if there is night time?
Maximum term will be reclusion temporal in
maximum period.
Minimum term - 1 degree lower without
attendant circumstance: within the range of
Prision mayor. The [indeterminate sentence] is
temporal in maximum period and within the
range of prision mayor because minimum term is
in the sound discretion of the court.
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If voluntary surrender and nighttime maximum
term shall be in the medium period because under
Article 64 you should offset the circumstances.
If in addition to this there is abuse of superior
circumstance, there is one aggravating
circumstance remaining. Maximum term will be
reclusion temporal in maximum period.
Fifth rule under Article 64. Voluntary surrender
with passion and obfuscation. Lower penalty with
one degree. It will now be prision mayor. Medium
period because no aggravating circumstance.
Max term is prision mayor in medium.
Min. term is prision correccional within [its range].
[The maximum penalty cannot be increased to
one degree higher despite the presence of many
ACs. But if there are many MCs, the penalty is
lowered (“lower ng lower”)].
A raped B. B voluntarily surrendered and with
passion and obfuscation. Punished with reclusion
perpetua. One degree lower?
No. If indivisible penalty apply under Article 63, if
penalty prescribe by law is a single invisible
penalty you shall impose it regardless of any
aggravating or mitigating circumstance.
Let us add facts. If B is a minor. Minority is a
privilege mitigating circumstance. You will apply
it, it takes preference.
Max term: reclusion temporal. Two mitigating
therefore lower it by one degree. So now prision
mayor, in medium period.
Min term: One degree lower, [thus it will be within
the range of] Prision correccional.
What if crime committed is frustrated homicide.
There is voluntary surrender and immediate
vindication.
[Penalty for homicide is] Reclusion temporal.
Frustrated will be one degree lower: Prision
Mayor. Two mitigating. Lower it one degree more.
Max term of sentence: Prision correctional in its
medium period.
Mimimum term of sentence: [within the range of]
Arresto mayor.
Add facts again. He is minor committing without
discernment.
Frustrated will be one degree lower: Prision
Mayor. One degree lower because privilege
mitigating circumstance: Prision correctional.
Apply now Article 64. You have two mitigating,
one degree lower: Arresto mayor.
Thus, the max term of sentence is Arresto mayor
medium period.
Min term of sentence: You cannot go one degree
lower because you cannot give him indeterminate
sentence. He is disqualified.
Those whose maximum term of sentence does not
exceed one year. Give him a straight penalty.
Arresto mayor medium period.
OTHER EXAMPLES [15 March 2017]:
The crime committed is HOMICIDE. The
penalty for homicide is RECLUSION
TEMPORAL. Under Art 64, the law provides if
there are no mitigating, no aggravating circumstance, the
maximum term of sentence shall be the penalty
prescribed by law taking into consideration
mitigating and aggravating circumstances as
provided for under the rules in Art 64.
Maximum term: Reclusion temporal in its medium
period
Minimum term: Prision Mayor. To get the minimum
term of sentence, you lower it by one degree. So it
becomes prision mayor.
Section 1 of ISL provides, the range of the
minimum penalty is dependent on the sound
discretion of the judge or court. So whether
prison mayor will be minimum, medium or
maximum, will depend on the sound discretion of
the judge.
Since the maximum is medium, let us make this
also medium period. This is the minimum term of
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the sentence.
Q: Let us say that in the commission of
HOMICIDE.
1 mitigating circumstance with no aggravating
circumstance:
Maximum term: Reclusion Temporal in its minimum
period. [Art 64: 1 MC, no AC: min period]
Minimum term: Prision Mayor. As to the range, it is
dependent on the sound discretion of the court.
*There is 1 mitigating circumstance of sufficient
provocation, so 1 mitigating circumstance with no
aggravating circumstance. Art 64 says the
maximum penalty shall be in its minimum period.
So this will be reclusion temporal in its minimum
period. That is the maximum term of sentence.
Again, to get the minimum term of sentence, lower
it by 1 degree, prision mayor. As to the range, it is
dependent on the sound discretion of the court.
That is the minimum term of sentence.
No mitigating but with 1 aggravating
circumstance:
Maximum term: Reclusion Temporal in its maximum
period. [Art. 64: 1 AC, no MC: max period]
Minimum term: Prision Mayor. Range depends on
the sound discretion of the court.
*In the commission of the crime let us say, no
mitigating but with 1 aggravating circumstance of
nighttime. Art 64 says, the penalty shall be in its
maximum period. So we have here, reclusion
temporal, maximum period. Lower it by 1 degree,
prision mayor. Range depends on the sound
discretion of the court. That is the minimum term
of sentence.
Both mitigating and aggravating
circumstances:
Maximum term: Reclusion Temporal in its
medium period. [Art. 64: if AC and MC are
present: offset. If any of them remain, apply proper
rule above].
Minimum term: Prision mayor. The range depends
on the sound discretion of the court.
*The commission of the crime of homicide was
attended by both mitigating and aggravating
circumstances. There is one mitigating
circumstance of voluntary surrender and one
aggravating circumstance of nighttime. Offset the
two, no more aggravating, no more mitigating,
therefore, reclusion temporal in its medium period.
This is the maximum term of the sentence. Again
to get the minimum term of sentence, you lower it
by one degree, prision mayor, the range depends on
the sound discretion of the court. That is the
minimum term of the sentence.
2 mitigating circumstances with no
aggravating circumstances:
Art. 64(5): lower the penalty by 1 degree.
Maximum term: Prision Mayor in its medium period
[medium because, after considering the 2 MCs, you
lowered the penalty by 1 degree; no MC will be left
to be considered; thus the penalty shall be in the
medium period].
Minimum term: Prision Correccional. The range
depends on the sound discretion of the court.
*In the commission of the crime of homicide, it is
attended by 2 mitigating circumstances with no
aggravating circumstances. Two mitigating
circumstance of sufficient provocation and then
we have voluntary surrender. No aggravating
circumstance.
Art 64 provides if there are 2 or more
mitigating with no aggravating circumstance,
lower the penalty by 1 degree in its proper
period. Therefore, by reclusion temporal, you lower it
by 1 degree, it will become prision mayor. We have
already considered these, so prision mayor in its
medium period – this is the maximum term of the
sentence. To get the minimum term of sentence,
lower it by 1 degree, it will become prision
correccional. The range depends on the sound
discretion of the court/judge.
If there are 3 MC’s, the law already provides that 2
MC’s are needed to lower the penalty by 1 degree.
1 MC remains-then, you impose the minimum
period of the penalty. This will be the maximum.
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What if there are 4MCs, no AC? You cannot lower
the penalty by 2 degrees. Just by 1 degree. After
lowering, there will be 2MCs. The result will be that
the max penalty will be imposed in the min period.
In order that the penalty will be lowered by 1
degree, it is necessary that totally, there is no
aggravating circumstance.
Even if there are many MCs, for as long as
there is 1 AC, you will not lower the penalty by
degrees, it is only by periods.
If there is a PMC, the penalty can be lowered
by 1 degree despite the fact that the penalty is
single and indivisible.
Eg: Rape (reclusion perpetua) but the offender is a
minor: PMC=lower it to reclusion temporal. In its
maximum period, because the original penalty is
only lowered by one degree next lower.
Note that the max penalty now is divisible. Now,
apply Art. 64. The min will be prison mayor.
PROBATION LAW as Amended
PROBATION- disposition by which a convict after
conviction and sentence is released subject to the
conditions imposed by the court under the
supervision of a probation officer.
OBJECTIVES:
1. to promote the correction and rehabilitation
of the offender because he is placed under a
personalized treatment
2. to provide an opportunity for the reformation
of penitent offender
3. to prevent further commission of crimes
because the offender is placed under an
individualized treatment
4. to decongest cases
5. to save the Government from spending much-
needed funds when the offender will be placed
behind bars
IS PROBATION A RIGHT OR A PRIVILEGE?
Privilege. Thus, even if a convict is not among
those disqualified of probation, the judge can still
deny the application. This denial is not appealable.
The grant or denial of application is
dependent solely on the sound discretion of
the judge.
GRANT OF PROBATION (Sec. 4, As
amended by RA 10707):
Subject to the provisions of this Decree, the trial court
may, after it shall have convicted and sentenced a
defendant for a probationable penalty and upon
application by said defendant within the period for
perfecting an appeal, suspend the execution of the
sentence and place the defendant on probation for
such period and upon such terms and conditions as it
may deem best. No application for probation shall
be entertained or granted if the defendant has
perfected the appeal from the judgment of
conviction: Provided, That when a judgment of
conviction imposing a non-probationable penalty
is appealed or reviewed, and such judgment is
modified through the imposition of a
probationable penalty, the defendant shall be
allowed to apply for probation based on the
modified decision before such decision becomes
final. The application for probation based on the
modified decision shall be filed in the trial court
where the judgment of conviction imposing a non-
probationable penalty was rendered, or in the trial
court where such case has since been re-raffled. In a
case involving several defendants where some have
taken further appeal, the other defendants may apply
for probation by submitting a written application and
attaching thereto a certified true copy of the judgment
of conviction.
The trial court shall, upon receipt of the
application filed, suspend the execution of the
sentence imposed in the judgment.
This notwithstanding, the accused shall
lose the benefit of probation should he seek a
review of the modified decision which already
imposes a probationable penalty.
Probation may be granted whether the
sentence imposes a term of imprisonment or a fine
only. The filing of the application shall be deemed
a waiver of the right to appeal.
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An order granting or denying probation shall
not be appealable.
DISQUALIFIED TO AVAIL OF PROBATION (Sec.
9, as amended by RA 10707, and other laws):
1. Those whose maximum term of imprisonment
is more than 6 years,
2. those who have been convicted of any crime
against national security,
3. Those who have previously been convicted by
final judgment of an offense punished by
imprisonment of more than six (6) months
and one (1) day and/or a fine of more than
one thousand pesos (P1,000.00)
4. those who have already availed the benefit of
probation
5. those who have perfected an appeal from
judgment of conviction [which imposes a
probationable penalty. If the conviction was
for a non-probationable penalty, and the
convict appeals, resulting to the modification
of judgment imposing a probationable
penalty, the convict may now apply for
probation. SEE RA 10707]
6. those convicted of an election offense under
the Omnibus Election Code
7. Those convicted of drug trafficking or drug
pushing,
8. Those who filed a malicious report that a
person is committing a violation of Anti-
money laundering law and was convicted
because of such malicious filing.
NOTE: Re: disqualification no. 1: “Those whose
maximum term of imprisonment is more than 6
years.”
Prosec: consider the actual penalty imposed by
the court, NOT THE TOTALITY. Such that, if there
are several penalties imposed, and some are more
than 6 years, and some are not more than 6 years,
the latter may be probationable. The convict may
separately apply for probation for the
probationable penalties, but the non-
probationable penalties must be served.
APPLICATION FOR PROBATION (See also Sec. 4
as amended by RA 10707):
Filed before the Trial Court which heard the case
within the period of perfecting an appeal or
within 15 days from promulgation of judgment.
No application for probation shall be entertained
when the offender has already perfected an
appeal. Likewise, the filing of an application for
probation shall be a waiver of the right to file an
appeal. [NOTE: See RA 10707]
Thus, appeal and probation are mutually
exclusive remedies. This is because the reason
behind appeal and the reason behind probation
are diametrically opposed. If a person appeals, it
means that he is questioning the decision of the
court. He is insisting on his innocence. On the
other hand, if a person applies for probation, it
means that he is accepting the judgment of the
court. He, however, does not want to serve his
sentence behind bars.
EXCEPTIONS TO RULE THAT APPEAL
PREVENTS PROBATION:
1. If the appeal is only for the purpose of
reducing the penalty to a probationable
penalty. That the only reason for appealing is
to question the high penalty imposed.
However, if in the said appeal, the offender
questions the merits of the case, he can no
longer apply for probation. [NOTE: this is in
Sec. 4, RA 10707]
Ex: Tarzan was charged with a violation of the
Forrest code. The penalty imposed is 8 years
maximum. Because of this, Tarzan filed an
appeal. He questioned the merits of the case
and likewise questioned the penalty imposed.
The Appellate Court affirmed the decision but
lowered the penalty to a maximum of 4 years.
Tarzan then went back to the trial court to
apply for probation, considering that the
penalty imposed by the Appellate Court is a
probationable one. The trial court denied the
application. Tarzan elevated the matter to the
Supreme Court via Certiorari contending that
one of the exceptions to the rule that appeal
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excludes probation is when the issue raised on
appeal is to question the high penalty
imposed. Is Tarzan correct?
SC: No, because the appeal first and foremost
questioned the merits of the case. The accused
questioned his culpability. That being so, he
can no longer avail for probation. If the sole
question on appeal pertains to the penalty, the
accused can still apply for probation before
the trial court.
2. Under the Juvenile Justice and Welfare Act,
if the offender is a minor he can file an
application for probation at any time even
if after appeal. It is only necessary that the
penalty imposed upon him is a probationable
penalty.
CONDITIONS IMPOSED UPON OFFENDER
UNDER PROBATION:
1. MANDATORY
a. Appear before the probationary officer
within 72 hours from the receipt of the
order.
b. Report once a month
2. DISCRETIONARY/ SPECIAL
Dependent upon the sound discretion of the court.
Usually involves engaging in a vocation, not
drinking alcohol, not going to house of ill-repute,
and planting of trees.
The only limitation on the discretionary
conditions is that they must not be so restrictive
to the rights of the accused such that they will no
longer be in consonance with his freedom.
EX: condition pertained to the prohibition of the
offender to teach during the period of probation.
This is a restrictive condition. It deprives the
offender his means of livelihood.
PERIOD OF PROBATION (Sec. 14):
Sentence Period of probation
Imprisonment of not Not exceed 2 years
more than 1 year
In all other cases [of Not exceed 6 years
imprisonment]
Fine only and Not less than nor be
subsidiary more than 2x than the
imprisonment in case total number of days
of insolvency of subsidiary
imprisonment, taking
into account the
highest minimum
wage rate at the time
of the rendition of the
judgment.
LEGAL EFFECT OF PROBATION: Its only legal
effect is to suspend the execution of the sentence.
It has nothing to do, and has no effect, on civil
liability.
In the case of Moreno v. COMELEC, the SC said
that probation is not equivalent to service of
sentence. If the convict was granted probation, it
does not mean that he already serve his sentence
because the effect of probation is to suspend the
execution of the sentence.
Ex: Lindsay Lohan, after conviction, applied for
probation and was granted the same. Thereafter,
she filed an appeal questioning the civil indemnity
imposed upon her. The judge denied the appeal on
the ground that Lindsay already applied for
probation. Therefore, the appeal cannot be
granted. Is the judge correct?
No, because the only effect of probation is to
suspend the execution of the sentence. It has
nothing to do with the civil aspect of the case.
Insofar as the civil aspect is concerned, the convict
can still appeal it.
Ex. D, under the probation for two years, was
imposed the condition that he could not change
his residence. For two years, he complied with
this condition. After the lapse of two years, D now
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changed his residence. The probation officer
learned about this and filed for a Motion to
Revoke the probation. D contended that the
period of probation (2 years) has already been
completed, so he is already allowed to change
residence. The trial court granted the revocation.
Is the trial court correct?
Yes, the expiration of the period of probation does
not ipso facto mean the termination of probation.
Probation is only terminated upon the issuance of
the court of an order of final discharge of
probation.
This happens when after the lapse of the period of
probation, the probation officer will file a Motion
before the court with a recommendation stating
that the convict has complied with the conditions
imposed and therefore, he should be discharged.
The court will then issue a final discharge of
probation. Only then will probation be
terminated.
EFFECT OF AN ORDER OF FINAL DISCHARGE
OF PROBATION (Sec. 16, as amended):
1. Restore the civil rights lost or suspended by
reason of conviction, including the penalty of
fine, and
2. Totally extinguish the criminal liability for the
crime he committed (RA 10707).
But, the offender should still pay the civil
indemnity to the offended party.
Other examples:
The RTC rendered a decision with a non-
probationable penalty. CA affirmed the decision
but modified the penalty which is already
probationable. The convict must be allowed to go
back to the court of origin and he can avail the
benefits of probation.
Let’s say in the appellate court, the AC rendered a
decision with a probationable penalty. However,
instead of applying for probation, he appealed
before the SC and the SC affirmed the decision in
toto. Can he still go back to the trial court and apply
for probation?
A: No. The moment the appellate court rendered a
probationable penalty, he must immediately go
back to the trial court and apply for probation. He
is now deprived of his right to apply for probation.
So what we have now is a law enforcing the
decision in Colinares.
IMPOSITION OF FINES (see also page 176)
Art. 66. Imposition of fines. — In imposing fines
the courts may fix any amount within the limits
established by law; in fixing the amount in each
case attention shall be given, not only to the
mitigating and aggravating circumstances, but
more particularly to the wealth or means of the
culprit.
1. Facts such as necessary such as aggravating
and mitigating circumstance.
2. Wealth and means of the offender
A Fine is a pecuniary penalty imposed by court in
case of judgement of conviction.
Scale of penalty Amount of fine
Afflictive Exceeds P6,000
Correctional Not exceed P6,000 but
not less than P 200
Light Less than P 200
If the offender is an accomplice, accessory or
frustrated? Answer is Art. 75.
Art. 75. Increasing or reducing the penalty of fine
by one or more degrees. — Whenever it may be
necessary to increase or reduce the penalty of fine
by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-
fourth of the maximum amount prescribed by
law, without however, changing the minimum.
If A prevented the meetings of congress by means
of fraud, the penalty is [prision correctional or] a
fine ranging from P 200 - P2000. If he was an
accomplice, one degree lower. 1/4th of the
maximum: P500. Thus, his maximum penalty is
P1500.
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Q: What if the crime committed by the offender is
punishable by fine. So let us say, impossible crime
and the penalty prescribed by law is P200-P500.
Let us say that the offender is mere accomplice or
an accessory. As provided for under Arts. 50-57, if
the offender is an accomplice, you go 1 degree
lower. If the offender is an accessory, you go 2
degrees lower. How could you lower the fine?
A: Under Art. 75, you take ¼ of the maximum
amount of fine and deduct it therefrom. If you
have to lower it, again, take ¼ of the maximum
amount of fine and deduct it therefrom. So the
maximum amount of fine is P500. ¼ of P500 is
125. Deduct this. This will now be P375.
If the offender is an accomplice, the penalty
prescribed by law would be P200-P375.
Let us say the offender is mere accessory, deduct
¼ of the maximum fine, so this will become now,
P200-P250.
SUCCESSIVE SERVICE OF SENTENCE
and the THREE-FOLD RULE
Art. 70. Successive service of sentences. — When
the culprit has to serve two or more penalties, he
shall serve them simultaneously if the nature of
the penalties will so permit; otherwise, the
following rules shall be observed:
In the imposition of the penalties, the order
of their respective severity shall be followed so
that they may be executed successively or as
nearly as may be possible, should a pardon have
been granted as to the penalty or penalties first
imposed, or should they have been served out.
For the purpose of applying the provisions
of the next preceding paragraph the respective
severity of the penalties shall be determined in
accordance with the following scale:
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Arresto menor,
8. Destierro,
9. Perpetual absolute disqualification
10. Temporal absolute disqualification.
11. Suspension from public office, the right to vote
and be voted for, the right to follow a
profession or calling, and
12. Public censure.
Notwithstanding the provisions of the rule
next preceding, the maximum duration of the
convict's sentence shall not be more than three-
fold the length of time corresponding to the most
severe of the penalties imposed upon him. No
other penalty to which he may be liable shall be
inflicted after the sum total of those imposed
equals the same maximum period.
Such maximum period shall in no case
exceed forty years.
In applying the provisions of this rule the
duration of perpetual penalties shall be computed
at thirty years.
What if the offender is given multiple
sentence?
The father raped the daughter 5 times. 5 counts of
rape. The said father was convicted on all counts
of rape. The penalty for 1 count of rape is reclusion
perpetua. What penalty shall the court impose on
him?
A: 5 reclusion perpetua.
If the convict is given multiple sentence (each
reclusion perpetua), how shall the convict serve the
said sentence?
Under Art. 70, the convict shall serve a sentence,
as rule, simultaneously. If the nature of the
penalty allows simultaneous service of sentence.
And what penalties allows simultaneous sentence?
 Improvement and fine
 Imprisonment and suspension
 Imprisonment and public censure
What penalties cannot be served at the same time?
All penalties of imprisonment
If the penalties cannot be served at the same time,
how shall the convict serve the penalties?
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He shall serve them successively as provided for
under Art. 70.
THREE-FOLD RULE – limitation on the
successive term of sentence. Art. 70 provides that
the maximum duration of sentence shall not
exceed three times the length of the most severe
penalty and that in no case shall exceed 40 years.
Here we have reclusion perpetua. The duration
for reclusion perpetua under Art. 27 is 20 years and 1
day to 40 years. The maximum penalty is 40 years.
So we have here, 40 years, 40 years, 40 years, 40
years and 40 years (because 5 reclusion perpetua),
these will be 200 years. That cannot be served,
right?! So you apply the three fold rule. The
maximum duration of sentence shall not exceed
three times the length of the most severe penalty.
So 40 years times 3 = 120 years. Still it cannot be
served.
Art. 70 says, provided it shall not exceed 40
years. So having been convicted of 5 counts of
rape and imposed of the penalty of reclusion perpetua,
he shall only serve 40 years imprisonment in
accordance to the three-fold rule. That is the
limitation provided for in Art. 70.
Q: So the judge said, the convict shall serve only 40
years imprisonment and civil liability of P50,000. Is
the judge right?
A: The judge is wrong. Because the 40 years
imprisonment as provided for in the three-fold rule
is not for the judge to impose. The 40 years
imprisonment in accordance to three-fold rule
refers to service of sentence, not to the imposition
of penalties. It is for the Director of Prisons to
apply the three-fold rule and compute, and not
for the judge to impose.
Therefore, for having been convicted of 5 counts
of rape, the judge shall impose upon him a penalty
of reclusion perpetua for each count of rape, the
penalty prescribed by law for the crime of rape.
Likewise, the judge shall impose upon the convict
the civil liability of P50, 000 for each count of rape.
Each count of rape is a violation of the person of
the victim therefore, civil indemnity is separate and
distinct from the criminal offense of rape. The civil
indemnity shall be the number of times the victim
was raped.
Conclusion: So, a penalty of reclusion perpetua for 5
counts of rape and a P50,000 civil indemnity for
each count of rape shall be imposed. The 40 years
is not for the judge to impose because the 40 years
refers to the service of sentence and not to the
imposition of the penalties. Courts are mandated
to impose the penalties as prescribed by law.
[Old] Examples:
5 counts of rape. Each is 40 years. He cannot serve
120 years. The Director of Prisons shall compute,
not the judge. Not to exceed 40 years. Also, 5 civil
liabilities of P50,000 each; each count is a violation
of the person of the victim.
20 counts of estafa - 6 months and 200 fine.
Without applying three fold rule, 10 years and
4000 as fine. Applying it only 18 months. But still
has to pay 4,000 as fine [see similar example in
Art. 39.]
In answering questions regarding penalties,
you need not state the equivalent duration. It
suffices that you state the designation: prision
mayor, prision correcional, etc.
Art. 71. Graduated scales. — In the case in which
the law prescribed a penalty lower or higher by
one or more degrees than another given penalty,
the rules prescribed in Article 61 shall be
observed in graduating such penalty.
The lower or higher penalty shall be taken
from the graduated scale in which is comprised
the given penalty.
The courts, in applying such lower or
higher penalty, shall observe the following
graduated scales:
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SCALE NO. 1
1. Death,
2. Reclusion perpetua,
3. Reclusion temporal,
4. Prision mayor,
5. Prision correccional,
6. Arresto mayor,
7. Destierro,
8. Arresto menor,
9. Public censure,
10. Fine.
SCALE NO. 2
1. Perpetual absolute disqualification,
2. Temporal absolute disqualification
1. Suspension from public office, the right to vote
and be voted for, the right to follow a
profession or calling,
3. Public censure,
4. Fine.
What is the importance of 1 day in the duration of
the period? For instance, in prision mayor (6 yrs
and 1 DAY -12 years)?
The 1 day separates the different degrees of the
penalty. It also separates a divisible penalty from
an indivisible penalty. It also determines whether
subsidiary imprisonment may be imposed on the
offender.
Art. 72. Preference in the payment of the civil
liabilities. — The civil liabilities of a person found
guilty of two or more offenses shall be satisfied by
following the chronological order of the dates of
the judgments rendered against him, beginning
with the first in order of time.
The penalties shall be satisfied according to the
scale of Art 70.
Art. 73. Presumption in regard to the imposition of
accessory penalties. — Whenever the courts shall
impose a penalty which, by provision of law,
carries with it other penalties, according to the
provisions of Articles 40, 41, 42, 43 and 44 of this
Code, it must be understood that the accessory
penalties are also imposed upon the convict.
Subsidiary penalties are deemed imposed.
However, the subsidiary imprisonment must
be expressly stated in the decision.
The rule that the principal penalty imposed
carries with it the accessory penalties does not
mean that the accused would serve subsidiary
imprisonment in case he is not able to pay the
pecuniary liabilities imposed in the judgment.
Subsidiary imprisonment must be expressly
ordered.
Art. 74. Penalty higher than reclusion perpetua in
certain cases. — In cases in which the law
prescribes a penalty higher than another given
penalty, without specially designating the name of
the former, if such higher penalty should be that
of death, the same penalty and the accessory
penalties of Article 40, shall be considered as the
next higher penalty.
If the decision or law says higher than RP or 2
degrees than RT, then the penalty imposed is RP
or RT as the case may be. Death must be
designated by name. However, for the other
penalties, this does not apply.
Example: the penalty for crime X is 2 degrees
lower than RP. The penalty imposed is prision
mayor.
Art. 75. Increasing or reducing the penalty of fine
by one or more degrees. — Whenever it may be
necessary to increase or reduce the penalty of fine
by one or more degrees, it shall be increased or
reduced, respectively, for each degree, by one-
fourth of the maximum amount prescribed by
law, without however, changing the minimum.
The same rules shall be observed with
regard of fines that do not consist of a fixed
amount, but are made proportional.
Art. 76. Legal period of duration of divisible
penalties. — The legal period of duration of
divisible penalties shall be considered as divided
into three parts, forming three periods, the
minimum, the medium, and the maximum in the
manner shown in the following tab:
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Art. 77. When the penalty is a complex one
composed of three distinct penalties. — In cases in
which the law prescribes a penalty composed of
three distinct penalties, each one shall form a
period; the lightest of them shall be the minimum
the next the medium, and the most severe the
maximum period.
Whenever the penalty prescribed does not
have one of the forms specially provided for in this
Code, the periods shall be distributed, applying by
analogy the prescribed rules.
EXECUTION AND SERVICE OF PENALTIES
Art. 78. When and how a penalty is to be executed.
— No penalty shall be executed except by virtue
of a final judgment.
A penalty shall not be executed in any
other form than that prescribed by law, nor with
any other circumstances or incidents than those
expressly authorized thereby.
In addition to the provisions of the law, the
special regulations prescribed for the government
of the institutions in which the penalties are to be
suffered shall be observed with regard to the
character of the work to be performed, the time of
its performance, and other incidents connected
therewith, the relations of the convicts among
themselves and other persons, the relief which
they may receive, and their diet.
The regulations shall make provision for
the separation of the sexes in different institutions,
or at least into different departments and also for
the correction and reform of the convicts.
Art. 79. Suspension of the execution and service of
the penalties in case of insanity. — When a convict
shall become insane or an imbecile after final
sentence has been pronounced, the execution of
said sentence shall be suspended only with regard
to the personal penalty, the provisions of the
second paragraph of circumstance Number 1 of
Article 12 being observed in the corresponding
cases.
If at any time the convict shall recover his
reason, his sentence shall be executed, unless the
penalty shall have prescribed in accordance with
the provisions of this Code.
The respective provisions of this section
shall also be observed if the insanity or imbecility
occurs while the convict is serving his sentence.
INSANITY AT THE TIME OF TRIAL OR AFTER
THE CONVICTION OF THE ACCUSED BY FINAL
JUDGMENT
There will be a suspension of sentence. The
accused cannot be made to suffer the sentence.
However, the moment he regains his sanity he is
required to serve his sentence. Provided, that the
period of penalty has not yet prescribed.
Art 80 (as amended by PD 603: Child and
Youth Welfare Code)
Note: refer to R.A. 9344 (Minority)
EXECUTION OF PRINCIPAL
PENALTIES
[NOTE: The following codal provisions relating to
death penalty were removed in these notes:
Art. 81. When and how the death penalty is to be
executed,
Art. 82. Notification and execution of the sentence
and assistance to the culprit,
Art. 83. Suspension of the execution of the death
sentence,
Art. 84. Place of execution and persons who may
witness the same,
Art. 85. Provisions relative to the corpse of the
person executed and its burial.
Reason: RA 9346 prohibits death penalty.
Please consult the codal (Pages 48-50) for these
Articles]
Under RA 9346, the prohibition pertains only to
the imposition of death penalty. But for heinous
crimes, the penalty shall still be death. Only that it
cannot be imposed.
Art. 86. Reclusion perpetua, reclusion temporal,
prision mayor, prision correccional and arresto
mayor. — The penalties of reclusion perpetua,
reclusion temporal, prision mayor, prision
correccional and arresto mayor, shall be executed
and served in the places and penal establishments
provided by the Administrative Code in force or
which may be provided by law in the future.
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Art. 87. Destierro. — Any person sentenced to
destierro shall not be permitted to enter the place
or places designated in the sentence, nor within
the radius therein specified, which shall be not
more than 250 and not less than 25 kilometers
from the place designated.
Destierro is considered as a principal,
correctional and divisible penalty. Therefore,
jurisdiction over crimes punishable by destierro
lies with the MTC.
Destierro shall be imposed in the following
cases:
1. Death or serious physical injuries is caused or
are inflicted under exceptional circumstance
(Art. 247),
2. Person fails to give bond for good behavior in
grave and light threats
3. Concubine's penalty for the crime of
concubinage,
4. When after reducing the penalty by 1 or more
degrees, destierro is the proper penalty.
Execution of Destierro
a) Convict shall not be permitted to enter the
place designated in the sentence nor within
the radius specified: not more than 250KM
and not less than 25KM from the place
designated.
b) If the convict enters the prohibited area, he
commits evasion of sentence.
Art. 88. Arresto menor. — The penalty of arresto
menor shall be served in the municipal jail, or in
the house of the defendant himself under the
surveillance of an officer of the law, when the
court so provides in its decision, taking into
consideration the health of the offender and other
reasons which may seem satisfactory to it.
EXTINGUISHMENT OF CRIMINAL LIABILITY
Art. 89. How criminal liability is totally
extinguished. — Criminal liability is totally
extinguished:
1) By the death of the convict, as to the personal
penalties and as to pecuniary penalties,
liability therefor is extinguished only when the
death of the offender occurs before final
judgment.
2) By service of the sentence
3) By amnesty, which completely extinguishes
the penalty and all its effects
4) By absolute pardon
5) By prescription of the crime
6) By prescription of the penalty
7) By the marriage of the offended woman, as
provided in Art 344 of this Code
MODES FOR EXTINGUISHING CRIMINAL
LIABILITY
1) Death
2) Service of Sentence
3) Amnesty
4) Absolute pardon
5) Prescription of crime
6) Prescription of penalty
7) Valid marriage of the offended with the
offender.
DEATH of the accused extinguishes criminal
liability at any stage of the proceedings. The
moment the offender dies, there is nobody to serve
the personal penalty.
Death extinguishes civil liability (arising from bad
based solely on the crime) if the offender dies
before conviction by final judgment. If the
offender dies after conviction by final judgment,
his civil liability will survive. The private
complainant can go after the executor or
administrator of the estate of the said offender. It
survives because judgment has already become
final and executory. Guilt has already been proven
beyond reasonable doubt.
Even if the offender dies before conviction by final
judgment, his civil liability survives if the said civil
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liability did not arise from or was not based solely
from the crime committed but based from other
sources of obligation such as law, contract, quasi-
contracts or quasi-delicts.
People v. Bayot, G.R No. 200030, 18 April 2012
Facts: Accused-appellant Nelson Bayot was
charged with rape in the RTC of Kabanlakan City,
Negros Occidental. He was convicted by the RTC,
and the conviction was affirmed by the CA in 2006.
However, Bayot died in the Bilibid in 2004.
Nonetheless, the PAO still appealed on his behalf
to the SC.
Issue: What is the effect of Bayot’s death on his
appeal.
Ruling:
Bayot’s death on 4 December 2004, during the
pendency of his appeal before the Court of
Appeals, extinguished not only his criminal liability
for the crime of rape committed against AAA, but
also his civil liability solely arising from or based on
said crime.
Article 89(1) of the Revised Penal Code, as
amended, specifically provides the effect of death
of the accused on his criminal, as well as civil,
liability.
Applying the foregoing provision, this Court, in
People v. Bayotas, which was cited in a catena of
cases, had laid down the following guidelines:
1. Death of the accused pending appeal of his
conviction extinguishes his criminal
liability as well as the civil liability based
solely thereon. As opined by Justice Regalado,
in this regard, “the death of the accused prior
to final judgment terminates his criminal
liability and only the civil liability directly arising
from and based solely on the offense
3
Art. 1155. The prescription of actions is interrupted when
they are filed before the court, when there is a written
extrajudicial demand by the creditors, and when there is
committed, i.e., civil liability ex delicto in senso
strictiore.”
2. Corollarily, the claim for civil liability survives
notwithstanding the death of [the] accused, if
the same may also be predicated on a source of
obligation other than delict. Article 1157 of the
Civil Code enumerates these other sources of
obligation from which the civil liability may
arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x x x x x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained in
Number 2 above, an action for recovery
therefor may be pursued but only by way of
filing a separate civil action and subject to
Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate
civil action may be enforced either against the
executor/administrator or the estate of the
accused, depending on the source of obligation
upon which the same is based as explained
above.
4. Finally, the private offended party need not fear
a forfeiture of his right to file this separate civil
action by prescription, in cases where during
the prosecution of the criminal action and prior
to its extinction, the private-offended party
instituted together therewith the civil action. In
such case, the statute of limitations on the civil
liability is deemed interrupted during the
pendency of the criminal case, conformably
with [the] provisions of Article 1155 of the
Civil Code3 that should thereby avoid any
apprehension on a possible privation of right
by prescription.
any written acknowledgment of the debt by the
debtor. (1973a)
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From the foregoing, it is clear that the death of
Bayot pending appeal of his conviction
extinguishes his criminal liability, as well as the civil
liability ex delicto. The rationale, therefore, is that the
criminal action is extinguished inasmuch as there is
no longer a defendant to stand as the accused, the
civil action instituted therein for recovery of civil
liability ex delicto is ipso facto extinguished, grounded
as it is on the criminal case [end].
People v. Amistoso, G.R. No. 201447, 28
August 2013
Facts: Accused-Appellant Anastacio Amistoso
was charged with statutory rape of his 12-year old
daughter in the RTC of Masbate City. He was
convicted of qualified rape. The CA affirmed the
conviction in 2011, and the SC did the same in
2013. However, Amistoso died in the Bilibid on
December 2012. Yet, unaware of Amistoso’s
demise, the PAO filed a Motion for
Reconsideration before the SC.
Ruling: SC conviction SET ASIDE, case
DISMISSED.
It is clear that the death of the accused pending
appeal of his conviction extinguishes his criminal
liability, as well as his civil liability ex delicto. Since
the criminal action is extinguished inasmuch as
there is no longer a defendant to stand as the
accused, the civil action instituted therein for
recovery of civil liability ex delicto is ipso facto
extinguished, grounded as it is on the criminal case.
Undeniably, Amistoso’s death on December 11,
2012 preceded the promulgation by the Court of
its Decision on January 9, 2013. When Amistoso
died, his appeal before the Court was still pending
and unresolved. The Court ruled upon Amistoso’s
appeal only because it was not immediately
informed of his death.
Amistoso’s death on December 11, 2012 renders
the Court’s Decision dated January 9, 2013, even
though affirming Amistoso’s conviction, irrelevant
and ineffectual. Moreover, said Decision has not
yet become final, and the Court still has the
jurisdiction to set it aside [end].
People v. Consorte, G.R. No. 194068, 26
November 2014
Facts: Benjie Consorte was convicted for the
murder of Elizabeth Palmar, and the conviction
was affirmed by the SC. Consorte filed a MR, but
died in the New Bilibid Prison afterwards.
Issue: What is the effect of Consorte’s death
pending his appeal with regard to his criminal and
civil liabilities?
Ruling: His civil and criminal liability are
extinguished.
Death of the accused pending appeal of his
conviction extinguishes his criminal liability as well
as the civil liability based solely thereon. As opined
by Justice Regalado, in this regard, "the death of
the accused prior to final judgment terminates his
criminal liability and only the civil liability directly
arising from and based solely on the offense
committed, i.e., civil liability ex delicto in senso
strictiore.
In the case at bar, accused-appellant died before
final judgment, as in fact, his motion for
reconsideration is still pending resolution by the
Court. As such, it therefore becomes necessary for
us to declare his criminal liability as well as his civil
liability ex delicto to have been extinguished by his
death prior to final judgment [end].
SERVICE OF SENTENCE is the satisfaction of the
penalty imposed. If it is imprisonment, it means
that he has served his sentence behind bars. If it is
fine, it means that he has paid the amount.
AMNESTY is an act of grace from the power
entrusted with the execution of the law which
does not only exempt the offender from the
service of penalty for the crime committed, but
also obliterates the effects of the crime. It does not
only suspend the execution of the sentence. It also
obliterates the effects of the crime.
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ABSOLUTE PARDON- act of grace received from
the power entrusted with the execution of the law
which exempts the offender from the penalty
prescribed by law for the crime committed.
Both amnesty and pardon are acts of grace by the
Chief Executive, and they both exempt the accused
from the penalty.
Oral defamation & slander by 6 months
deed
Light offenses 2 months
When the penalty fixed by law is a compound one,
the highest penalty shall be made the basis of the
application of the rules contained in the first,
second and third paragraphs of this article. (As
amended by RA 4661, approved June 19,1966.)

Pardon Amnesty Art. 91. Computation of prescription of offenses. —

Merely suspends the Obliterates all effects Art. 91
execution of sentence, of crime as if no crime Commences to  [If crime known: from the
erases the penalty to was committed. run time of its commission.
be imposed.
 If unknown:] Day when
Granted only after Granted at any stage of
crime is discovered by:
conviction by final proceedings, before
o Offended party,
judgment. during or after final
o The authorities, or
judgment.
their agents
Private act of Public act of President.
President. As such, the Granted with the Interrupted by Filing of the complaint or
person pardoned must concurrence of information
plead and prove it Congress. Courts take Commences to  When such proceedings
before the courts. No judicial notice of it. run again terminate without the
judicial notice of accused being convicted
pardon. or acquitted,
May be given to all Generally granted to a  Or are unjustifiably
kinds of offenders. class or group of stopped for any reason not
persons who have imputable to him.
committed political Term of When the offender is absent
offenses. prescription from the Philippine
EX: P- Erap; A- Senator Trillanes. shall not run Archipelago
Prosec G: In the exams, do not write “amnesty
looks backward while pardon looks forward”. NOTE: Situations which do not follow Art. 91
(GN 2016):
Art. 90. Prescription of crime. —
1. Continuing crimes-prescriptive period will start
Crimes punishable by… Prescriptive
to run only at the termination of the intended
period
result,
Death, reclusion perpetua or 20 years 2. Crimes against false testimony-prescriptive
reclusion temporal
period is reckoned from the day a final
Other afflictive penalties [prision 15 years
judgment is rendered and not at the time when
mayor?]
the false testimony is made,
Correctional penalties, except 10 years
3. Election offenses-
arresto mayor
a. If discovery of the offense is incidental to
Arresto mayor 5 years judicial proceedings, prescription begins
Libel or other similar offenses 1 year when such proceedings terminate; or

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b. From the date of the commission of the period will commence to run from the time the
offense. offended party, the authorities or their agents
discovered the crime.
Art. 92. When and how penalties prescribe. — The
The said running of the prescriptive period is
penalties imposed by final sentence prescribe as
interrupted upon the filing of the case before the
follows:
Final sentence Prescriptive office of the public prosecutor even if for the
periods purpose of preliminary investigation. So the
moment the private complainant files the
Death and reclusion perpetua 20 years
complaint with the public prosecutor, the running
Other afflictive penalties 15 years
of the prescriptive period is interrupted.
Correctional penalties, 10 years
except arresto mayor XPN: when the crime committed is involves
Arresto mayor 5 years the registration of title in real properties. It is
Light penalties 1 year the registration of the sale, conveyance or
mortgage of the real property which constitutes a
Art. 93. Computation of the prescription of notice to the whole world, which must be
penalties. — considered as the start of the commencement of
Art. 93 the prescriptive period. Even if the offended
Commences to Date when the convict should party, in reality, did not know that a crime has been
run evade the service of his committed, from the moment there has been
sentence. registration, by virtue of constructive notice, the
Interrupted if  Should give himself up, running of the prescriptive period has commenced.
the defendant  Be captured, In the case of People v. Pangilinan, the Supreme
 Should go to some foreign Court said whether it is a violation of a special
country which the Phil. penal law like the BP 22 or a violation of the RPC,
Government has no the filing of a complaint before the office of the
extradition treaty, or public prosecutor suspends or interrupts the
 Should commit another running of the prescriptive period. It remains
crime before the suspended until the case has been decided the
expiration of the period of accused being acquitted or convicted or the case
prescription. has been dismissed for any reason not imputable
to him.
PRESCRIPTION OF CRIME is the loss or forfeiture
of the right of the State to prosecute an offender Here the checks were issued, and the notice of
who has committed a violation of the law. dishonor was received by the maker in 1995. The
cases were filed before the prosecutors in 1997,
The accused need not file a motion; the moment and they filed the information in the MTC in 2000.
the crime prescribes the judge motu propio must The MTC and RTC ruled that the crime did not
dismiss the case. The court loses jurisdiction over prescribe. The CA held that the crime had
the case, as there is no crime to try. prescribed, and that the filing of the complaint
before the prosecutors did not suspend the
GR: The period of prescription of crime running of the prescriptive period.
commences to run from the time of the
commission of the crime, if it is known. If the time The CA cited the case of Zaldivia v. Reyes and ruled
of the commission of the crime is not known, the that the violation of BP 22 has already prescribed

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because according to the CA, in case of violation
of special penal laws, the running of the
prescriptive period is only interrupted upon the
filing of the case before the appropriate court
because the Supreme Court interpreted the word
“proceedings” as judicial proceedings in Zaldivia v.
Reyes.
The SC said that the interpretation of the CA is
erroneous. SC said it is now settled in
jurisprudence that whether it is a violation of a
special penal law or a violation of the RPC, the
filing of the complaint with the public prosecutor
interrupts the running of the prescriptive period.
In Zaldivia v. Reyes, what is involved is a
violation of a municipal ordinance. It is only in
case of violation of municipal ordinance
wherein the running of the prescriptive period
is interrupted upon the filing of the complaint
before the proper court. The filing of the
information in 1997 suspended the prescriptive
period and the same remains suspended; tus the
crime has not yet prescribed.
Ex: Husband and Wife are quarreling. In the
course of the quarrel, H killed W. H buried the wife
in the backyard. Unknown to H, neighbor saw the
incidents of killing and burial. This neighbor,
because of fear of H, remained silent. After 25
years from the commission of the crime, the
neighbor became old and sickly. He then told the
police what he witnessed 25 years ago. The police
then went to the backyard, dug the ground and
saw the bones of W. Can the State still prosecute
H for parricide?
- Yes, the crime has not yet prescribed. The
authorities and their agents only came to know
the crime 25 years from its commission. This is
the only time when the prescriptive period for the
crime shall commence to run. Also, the neighbor
who knew the commission of the crime is not the
person required by law to discover the crime in
order to start the running of the prescriptive
period. Therefore, the State can still file the case of
parricide.
The husband chopped the deceased body of
his wife and placed it in different parts of the
house. No one knew of the incident except one
of the children who saw the incident but he
preferred to keep silent about it. 25 years
thereafter, he divulged the said incident to the
authorities. Can the state still prosecute the
said offender?
Not anymore. Because the son witnessed the
commission of the crime. The son is an offended
party because he is an heir of the victim. The time
for the prescription of the crime has commenced
to run from the time he witnessed its commission
and has prescribed 20 years thereafter.
But what if it is the neighbor who witnessed
the crime?
Yes. The neighbor is not an offended party nor an
authority or an agent of the authorities. So even if
she learns the commission of the crime, the period
has not yet commenced to run.
Ex. Niki and Mariah were friends. Niki, before
going to Mindanao, left the titles of her properties
to Mariah for safekeeping. Mariah became
interested in one of the properties. While Niki was
in Mindanao, Mariah falsified a Deed of Absolute
Sale forging the signature of Niki, making it
appear that Niki sold the property to her. Mariah
then registered the Deed before the Registry of
Deeds. The title was thereafter transferred to the
name of Mariah. 20 years thereafter, Niki came
back to Manila and acquired the titles she left to
Mariah. Niki noticed that one title was missing.
She eventually discovered that the property
covered by such missing title was already
transferred to the name of Mariah. Can Niki file
case of falsification of public doc (punished by
Prision Mayor) against Mariah?
- No, because the crime has already prescribed. If
a document or transaction involves real
properties (sale, lease, attachment), the moment
the document is registered before the Registry of
Deeds, such registration constitutes constructive
notice. As such, the law presumes that the whole
world, including Niki, knows about the
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registration. The period of prescription
commences to run from that time. Since 20 years
have already lapsed in this case, the crime has
already prescribed. This concerns only criminal
liability. But Niki can still file a civil case for
damages or any civil action to recover the
property.
Ex: Gerald and Kim were spouses. Gerald, as a
medical representative, was assigned in Visayas
leaving his wife, Kim, in Manila. 20 years
thereafter, Kim while watching TV saw Gerald
presenting another woman, Maja, as his wife.
Furious, Kim went to Visayas and therein
discovered that there was a registered marriage
certificate between Gerald and Maja, the woman
she saw on TV. Can Kim file a case of bigamy?
Yes, the crime has not yet prescribed. The rule on
constructive notice by registration is applicable
only if the transaction involves real properties.
Registration as to other documents or
transactions with the Office of the Civil Registry
does not constitute constructive notice to the
whole world. Since the wife herein discovered the
bigamous marriage only 20 years thereafter, this
shall be the starting point for the running of the
prescriptive period of the crime.
PRESCRIPTIVE PERIOD SUSPENDED: Upon
filing of complaint or information before the
fiscal's office or before the court/public
prosecutor for purposes of preliminary
investigation. It remains suspended until the
accused is convicted or acquitted or the case is
terminated without the fault of accused.
NOTE: Under the Local Government Code, the
[initiation of] Barangay Conciliation should also
bar the running of the prescriptive period. BUT
SEE Pangilinan, it did not bar the running of the
period. NOTE ALSO: if this is asked in the BAR,
follow Pangilinan: filing of the criminal case
before the prosecutor bars the prescriptive
period.
PRESCRIPTION OF PENALTY- loss of the right of
the State to execute the final sentence. The
moment the penalty has prescribed, the convict
becomes a free man. The state can no longer arrest
him and make him suffer the penalty imposed.
Final sentence Prescriptive
periods
Death and reclusion perpetua 20 years
Other afflictive penalties 15 years
Correctional penalties, 10 years
except arresto mayor
Arresto mayor 5 years
Light penalties 1 year
The running of the period shall commence from
the time the convict evaded the service of his
sentence. It is necessary therefore that the
convict is serving his sentence and while serving,
he escaped. It is from the time of escape that the
prescriptive period runs. Thus if the accused has
not yet began the service of his sentence, the
prescriptive period of the penalty will not run.
EX: Garcia was convicted of homicide. The
judgment became final and executory. He was
brought to serve sentence in Muntinlupa. While
serving sentence, he escaped. Police failed to
capture and find him. It was only after 20 years
that Garcia was located and brought behind bars.
Garcia's counsel filed a Petition for Habeas Corpus
contending that the penalty prescribed and
therefore, Garcia could not be imprisoned. Is the
counsel correct?
Yes the penalty has prescribed. Homicide
prescribes in 15 years. Here, Garcia was captured
20 years from escape.
EX. Cuenca was charged with homicide. Being a
bailable offense, Cuenca posted bail. During the
arraignment and pre-trial, Cuenca appeared
before the court. However, during the trial proper,
he did not appear. Trial in absentia ensued.
Judgment was for conviction. Warrant of arrest
was issued against Cuenca. It was only 20 years
thereafter that the police were able to arrest
Cuenca and bring him behind bars. Cuenca's
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counsel filed a petition for habeas corpus Prescription of Prescription of
contending that the penalty has prescribed. Is the crimes penalties
counsel correct? Loss or forfeiture of Loss or forfeiture of
No, the penalty has not prescribed. In fact, the right of the State to the right of the State to
prescription has not even commenced to run. For prosecute. enforce final judgment.
the period to run, it is necessary that the offender Starts counting upon Starts counting upon
is serving sentence and while serving sentence, he the discovery of the the escape or evasion
escaped. The running of prescriptive period only commission of the of service of sentence.
starts from the escape of offender. In this case, the crime.
offender has not even served his sentence.
Mere absence from the Absence from the
Philippines interrupts Philippines interrupts
SUSPENSION OF PRESCRIPTIVE PERIOD OF
PENALTY:
the running of the the period only when
1. When offender surrenders prescription. the convict goes to a
2. When offender went to a country which has foreign country
no extradition treaty with the Philippines without an extradition
3. When convict commits a crime before the treaty with the
expiration of period of prescription Philippines.
4. When the offender is captured Commission of Commission of
another crime before another crime before
SUBSEQUENT VALID MARRIAGE the expiration of the the expiration of the
BETWEEN THE OFFENDER AND THE prescriptive period period interrupts the
OFFENDED PARTY only applies to private does not interrupt prescription.
crimes- seduction, abduction, acts of prescription.
lasciviousness and one public crime which is rape. (GN 2016)

Under Art. 266-C [rape] and Art. 344 [seduction,
abduction & acts of lasciviousness], the subsequent
valid marriage between the offender and the
offended party extinguishes criminal liability and
even the penalty imposed by the court. So the
subsequent valid marriage would remit even the
penalty already imposed by the court.
Ex. Jack raped Rose. Rose filed a case of rape
against Jack. Trial on the merits ensued. During
trial, Jack and Rose would often see each other
and because of this, they fell in love with each
other. Later on, they got married. This valid
marriage will extinguish the criminal liability of
Jack.
Even if there is already a final and executory
judgment, such as when the offender is already
behind bars, a valid marriage between the
offender and the offended will still extinguish
criminal liability and the penalty imposed.
PARTIAL EXTINCTION OF CRIMINAL
LIABILITY
Art. 94. Partial Extinction of criminal liability. —
Criminal liability is extinguished partially:
1. By conditional pardon;
2. By commutation of the sentence; and
3. For good conduct allowances which the culprit
may earn while he is undergoing preventive
imprisonment or serving his sentence. (As
amended by RA 10592)
4. By parole (not in codal)
5. By probation (not codal)
MODES FOR PARTIALLY EXTINGUISHING
CRIMINAL LIABILITY
1. Conditional Pardon
2. Commutation of sentence
3. Good conduct of allowance
CONDITIONAL PARDON- An act of grace granted
by the Chief Executive. However, unlike an

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absolute pardon, a conditional pardon is subject to Following years until 25 days for each month
strict conditions that the offender must comply the 10th year, inclusive, of good behavior during
with. Because of this strict conditions, there must of his imprisonment detention
be acceptance on the part of the offender. The 11th and successive 30 days for each month
moment he accepts, it becomes incumbent upon years of his of good behavior during
him to comply with the strict terms and imprisonment detention
conditions of the pardon. Failure to comply with At any time during the another deduction of 15
any of the strict conditions, the State can file a period of imprisonment days, in addition to
criminal case under Art 159- evasion of service of numbers one to four
sentence. In addition, the Chief Executive can hereof [above], for
order the immediate incarceration of the offender each month of study,
under the Administrative Code. teaching or mentoring
service time rendered
It only partially extinguishes criminal liability
because it is subject to strict terms and conditions. An appeal by the accused shall not deprive him of
entitlement to the above allowances for good
COMMUTATION OF SENTENCE- a new penalty is conduct (as amended by RA 10592).
imposed shall be in lieu of the original sentence.
Ex: death penalty commuted to Reclusion SPECIAL ALLOWANCE FOR LOYALTY (ART 98,
Perpetua. Reclusion Perpetua should now be as amended by RA 10592):
served instead of death. Deduction [Requisites for allowance]
1/5 of the Granted to any prisoner who,
th

GOOD CONDUCT ALLOWANCE (ART 97 [& 99], period of his  having evaded his preventive
as amended by RA 10592)- if the offender has sentence imprisonment or the service
been behaving properly in prison, the Director of of his sentence under the
the BuCor, the Chief of BJMP and/or the Jail circumstances mentioned in
Warden shall compute the good conduct Article 158 of this Code [i.e.,
allowance in favor of the offender so that he will on the occasion of disorder,
be immediately released. resulting from a
conflagration, earthquake,
ART. 97. Allowance for good conduct. – The good explosion, or similar
conduct of any offender qualified for credit for catastrophe, or during a
preventive imprisonment pursuant to Article 29 mutiny in which he has not
of this Code [added by RA 10592], or of any participated],
convicted prisoner in any penal institution,
rehabilitation or detention center or any other  gives himself up to the
local jail shall entitle him to the following authorities
deductions from the period of his sentence:  within 48 hours following the
Period of Deduction issuance by the Chief
imprisonment Executive of a proclamation
1st two years 20 days for each month announcing the passing away
of good behavior during of the calamity or catastrophe
detention referred to in said article
rd th
3 to 5 yr, inclusive, 23 days for each month 2/5 of his In case said prisoner chose to
th
of his imprisonment of good behavior during sentence stay in the place of his
detention confinement notwithstanding
the existence of a calamity or

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 CRIMINAL LAW REVIEW 2017
catastrophe enumerated in
Article 158 of this Code.
If the offender escaped and returned to the
government, he shall be given a credit or
deduction in his sentence of 1/5 of his term.
EX: During the time Bin Laden was serving his
sentence behind bars, an 8.9 magnitude
earthquake suddenly occurred prompting Bin
Laden to escape. He then went to the house of his
mother.
While Bin Laden was watching TV in the house of
his mother, he saw the President announcing that
the earthquake subsided. Within 48 hours from
announcement, Bin Laden surrendered. Because
of this surrender, Bin Laden is entitled to the
special allowance for loyalty for being so loyal to
the government.
If Bin Laden merely remained in prison, he is
entitled to a deduction of 2/5th of his sentence. He
is more loyal; for such loyalty there is a greater
reward.
However, if Bin Laden did not return, he violates
Art. 158-Evasion of Service of Sentence: there will
be an additional 1/5 to the term of his sentence.
CIVIL LIABILITY
Art. 100. Civil liability of a person guilty of felony.
— Every person criminally liable for a felony is
also civilly liable.
Art. 101. Rules regarding civil liability in certain
cases. — The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of article
12 and in subdivision 4 of article 11 of this Code
does not include exemption from civil liability,
which shall be enforced subject to the following
rules:
First. In cases of subdivisions 1, 2, and 3 of
Article 12, the civil liability for acts committed by
an imbecile or insane person, and by a person
under nine years of age, or by one over nine but
under fifteen years of age, who has acted without
discernment, shall devolve upon those having such
person under their legal authority or control,
unless it appears that there was no fault or
negligence on their part.
Should there be no person having such
insane, imbecile or minor under his authority,
legal guardianship or control, or if such person be
insolvent, said insane, imbecile, or minor shall
respond with their own property, excepting
property exempt from execution, in accordance
with the civil law.
Second. In cases falling within subdivision
4 of Article 11, the persons for whose benefit the
harm has been prevented shall be civilly liable in
proportion to the benefit which they may have
received.
The courts shall determine, in sound
discretion, the proportionate amount for which
each one shall be liable.
When the respective shares cannot be
equitably determined, even approximately, or
when the liability also attaches to the
Government, or to the majority of the inhabitants
of the town, and, in all events, whenever the
damages have been caused with the consent of the
authorities or their agents, indemnification shall
be made in the manner prescribed by special laws
or regulations.
Third. In cases falling within subdivisions 5
and 6 of Article 12, the persons using violence or
causing the fears shall be primarily liable and
secondarily, or, if there be no such persons, those
doing the act shall be liable, saving always to the
latter that part of their property exempt from
execution.
GR: Civil action impliedly instituted in
criminal action.
Art. 100: Every person criminally liable is also
civilly liable. For every criminal action filed in
court, the civil action for the recovery of civil
liability is deemed impliedly instituted. This is
because in the commission of a crime, 2 injuries
are inflicted:
1. Social injury against the State for the
disturbance of social order and
2. Personal Injury against the offended party and
his heirs.
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The social injury against the state will be
answered by reparation. The personal injury will
be answered by the civil indemnity.
Exceptions to Implied Institution of Civil
Action [WRP]:
1. When offended party WAIVES the civil action,
2. When the offended party RESERVES the right
to file a separate civil action, which must be
made prior to the presentation of evidence of
the prosecution, or
3. When the offended party files the civil action
PRIOR to the criminal action.
ACQUITTAL, EFFECT ON CIVIL LIABILITY:
Acquittal in criminal action bars recovery in
civil action in the following instances:
1. If the judgment of acquittal states that the
alleged criminal acts of the offender were not
committed by him [the judgment states that he
is not the author of the crime],
2. If the judgment of acquittal states that the
accused is not guilty of criminal or civil
damages
Acquittal does not bar recovery in civil action:
1. When judgment of acquittal is based on
reasonable doubt.
 Because civil actions require mere
preponderance of evidence,
2. When judgment of acquittal states that the
liability of accused is not criminal but civil in
nature.
This usually happens when the case is
estafa and there is a contract between the
accused and complainant, upon which the
accused failed to comply with the terms of the
contract. There is breach of contract,
3. When the judgment of acquittal states the civil
liability does not arise from the crime but from
other sources of obligations,
In the case of Lumantas v. Calapiz, there was still
recovery of civil indemnity despite acquittal due to
reasonable doubt. There may still be recovery
because civil actions require only preponderance of
evidence. Moreover, the evidence shows that the
boy suffered as a result from the surgery done by
Dr. Lumantas.
In Daluraya v. Olivia, the charge was reckless
imprudence resulting in homicide. The SC said that
based on the evidence, the prosecution failed to
prove that the accused was the author of the crime.
This acquittal bars recovery of civil indemnity
because Daluraya was not the author of the
criminal act; thus there is no basis for the
imposition of civil liability.
Art. 102. Subsidiary civil liability of innkeepers,
tavernkeepers and proprietors of establishments. —
In default of the persons criminally liable,
innkeepers, tavernkeepers, and any other persons
or corporations shall be civilly liable for crimes
committed in their establishments, in all cases
where a violation of municipal ordinances or some
general or special police regulation shall have
been committed by them or their employees.
Innkeepers are also subsidiarily liable for
the restitution of goods taken by robbery or theft
within their houses from guests lodging therein, or
for the payment of the value thereof, provided
that such guests shall have notified in advance the
innkeeper himself, or the person representing
him, of the deposit of such goods within the inn;
and shall furthermore have followed the
directions which such innkeeper or his
representative may have given them with respect
to the care and vigilance over such goods. No
liability shall attach in case of robbery with
violence against or intimidation of persons unless
committed by the innkeeper's employees.
Art. 103. Subsidiary civil liability of other persons.
— The subsidiary liability established in the next
preceding article shall also apply to employers,
teachers, persons, and corporations engaged in
any kind of industry for felonies committed by
their servants, pupils, workmen, apprentices, or
employees in the discharge of their duties.
WHO SHALL SHOULDER THE CIVIL LIABILITY?
If the offender is insane, imbecile, minor:
It shall be shouldered by the persons who have
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custody of the insane, imbecile or minor.
Secondary liability falls on the property of the
insane, imbecile or minor, except those
properties which are prohibited from being
attached.
In case of state of necessity:
All persons who have been benefitted during the
state of necessity shall bear the civil liability. If
there are many persons benefitted, the liability
shall be divided by the court proportionately.
In irresistible force or uncontrollable fear:
Borne by the person who enforced the threats to
the offender. Secondary liability falls upon the
principal by direct participation, who is the one
who acted under the compulsion of irresistible
force or uncontrollable fear.
SUBSIDIARY CIVIL LIABILITY
Requisites to hold Employers subsidiarily
liable for crimes of employees:
1. Employer must be engaged in some kind of
industry
2. Employer and employee relationship
3. Employee committed a crime in the
exercise of his duties as employee
4. There must be conviction of the crime and
the employee was found insolvent to pay
civil indemnity. The moment the employee
was found insolvent, the liability of the
employer now becomes absolute. A motion
for the issuance of a subsidiary writ of
execution must then be filed by the
complainant.
Parents, teacher, employers, proprietors shall be
subsidiarily liable for the crimes committed by
their children, students, employees, servants.
In the case of Solidum v. People, the RTC
convicted Solidum but acquitted the two other
doctors. However, the CA held that it is not only
Dr. Solidum who is civilly liable. The Court of
Appeals held that Ospital ng Maynila (OM) is
subsidiarily liable.
The SC held that this decision of the CA is wrong
in two points: First, OM was not impleaded in the
information filed against the accused. OM is a
juridical entity. How can the CA impose civil
liability on OM when it was not even included in
the case filed against Dr. Solidum?
Second, granting for the sake of argument that OM
was impleaded, still it cannot be subsidiarily liable
because the requisites for the subsidiary liability of
the employers are not present.
First, there is no employer-employee relationship
because based on the evidence, Dr. Solidum is a
consultant and not an employee of OM. Second,
OM is not engaged in some kind of industry, it is a
charitable institution that caters hospital services to
poor patients; there is no profit. Also, Dr. Solidum
was not criminally liable. Lastly, granting that Dr.
Solidum was held liable for civil liability, there was
no proof that Dr. Solidum was insolvent such that
OM will be subsidiarily liable.
EX: Paris Hilton, a guest in a hotel, told the
representative of the hotel that she carries
valuables. The representative of the hotel told
Paris about the rules regarding the care and
vigilance of the valuables. However, during
nighttime, a robbery occurred inside the hotel.
Among those taken were the valuables of Paris.
The offender was arrested, convicted and civil
liability was imposed upon him. In case of
insolvency of the offender, who shall shoulder
subsidiary civil liability?
The proprietor of the hotel or establishment. It is
because the guest complied with the rules and
regulations as to the care and vigilance of the
goods. He also informed the representative of the
hotel of the presence of his valuables.
EX: Same situation as above. But the guard of the
hotel tried to fight the robbers. One of the robbers
shot the guard. Prosecuted for robbery with
homicide and was convicted. In case of insolvency,
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is the proprietor of the hotel subsidiarily liable?
No, because the crime committed is robbery with
homicide, which is a crime under robbery with
violence against or intimidation of persons. If the
crime committed is robbery with violence against
or intimidation of persons, the proprietor is not
liable, except if the offender is the employee of the
hotel or establishment.
EX: A municipal ordinance provides that
Establishment XYZ should only be open during
weekdays. However, this establishment violated
the ordinance as it opened on a Sunday. A crime
was committed during the Sunday it opened. Is
the proprietor of the establishment liable?
Yes, because there was a violation of the
ordinance. Any crimes committed in the
establishment will make the proprietor
subsidiarily liable for civil liability only, not for
criminal liability.
EX: Vin Diesel was a driver of XYZ Corporation
engaged in the business of distributing goods to
supermarkets. Vin Diesel was driving recklessly
as he was headed to one supermarket. In the
course thereof, Vin Diesel hit a car. The car was
damaged. Because of this, a crime for reckless
imprudence resulting to damage to property was
filed against Vin Diesel. Court found him guilty.
The penalties imposed were fine and payment of
damage caused. When the judgment became final
and executory, a writ of execution was issued but
was returned unsatisfied due to the insolvency of
Vin Diesel. If you were the complainant, what
would you do to recover? Is there need to file a
separate civil action?
No need to file a separate civil action. In the very
same action for reckless imprudence resulting to
damage to property, the moment the employee is
found to be insolvent, the liability of the employer
becomes absolute. However, even if it is absolute,
it is not automatic. The complainant has to file a
Motion for the Issuance of a Subsidiary Writ of
Execution. This is not an ex parte motion, but a
litigated one. Thus, the other party (XYZ Corpo)
must be informed for due process. The requisites
of holding an employer subsidiariliy civilly liable
must be proven.
Art. 104. What is included in civil liability. — The
civil liability established in Articles 100, 101, 102,
and 103 of this Code includes:
1. Restitution;
2. Reparation of the damage caused;
3. Indemnification for consequential damages.
WHAT DOES CIVIL LIABILITY CONSIST:
1. Restitution
2. Reparation of damages
3. Indemnification of consequential damages
Art. 105. Restitution. — How made. — The
restitution of the thing itself must be made
whenever possible, with allowance for any
deterioration, or diminution of value as
determined by the court. The thing itself shall be
restored, even though it be found in the possession
of a third person who has acquired it by lawful
means, saving to the latter his action against the
proper person, who may be liable to him.
This provision is not applicable in cases in
which the thing has been acquired by the third
person in the manner and under the requirements
which, by law, bar an action for its recovery.
RESTITUTION- Return of the thing itself, if it can
be returned. Even if the thing is in possession of
an innocent purchaser for value without prejudice
to the action that the said innocent purchaser may
have against the other person.
Exception: if the innocent purchaser acquired the
said property in a public sale. Then, it can no
longer be taken away from him.
Art. 106. Reparation. — How made. — The court
shall determine the amount of damage, taking into
consideration the price of the thing, whenever
possible, and its special sentimental value to the
injured party, and reparation shall be made
accordingly.
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REPARATION- If restitution is not possible, we
have reparation of damages. The judge shall
impose against the accused payment for the value
of the thing together with the special sentimental
value to the owner thereof.
Art. 107. Indemnification — What is included. —
Indemnification for consequential damages shall
include not only those caused the injured party,
but also those suffered by his family or by a third
person by reason of the crime.
INDEMNIFICATION OF CONSEQUENTIAL
DAMAGES - Consists of moral damages,
exemplary damages, and actual damages for the
damages incurred by the offended party and/or
his heirs.
Moral damages in case of rape or murder need
not be proved. It suffices that the crime has been
committed. The law presumes that the victim
suffered moral indemnity because of the crime
committed.
Exemplary damages can only be granted if there
are aggravating circumstances in the commission
of the crime.
In People v. Gambao, the SC held that if the
crime committed is heinous, the moral damage
must be P100,000; the exemplary damages must
also be P100,000.
Art. 108. Obligation to make restoration, reparation
for damages, or indemnification for consequential
damages and actions to demand the same — Upon
whom it devolves. — The obligation to make
restoration or reparation for damages and
indemnification for consequential damages
devolves upon the heirs of the person liable.
The action to demand restoration,
reparation, and indemnification likewise descends
to the heirs of the person injured.
Art. 109. Share of each person civilly liable. — If
there are two or more persons civilly liable for a
felony, the courts shall determine the amount for
which each must respond.
If there were 2 accused convicted, insofar as
the civil liability is concerned, it is the court
which shall determine the civil liability of the 2
accused.
Art. 110. Several and subsidiary liability of
principals, accomplices and accessories of a felony
— Preference in payment. — Notwithstanding the
provisions of the next preceding article, the
principals, accomplices, and accessories, each
within their respective class, shall be liable
severally (in solidum) among themselves for their
quotas, and subsidiaries for those of the other
persons liable.
The subsidiary liability shall be enforced,
first against the property of the principals; next,
against that of the accomplices, and, lastly, against
that of the accessories.
Whenever the liability in solidum or the
subsidiary liability has been enforced, the person
by whom payment has been made shall have a
right of action against the others for the amount
of their respective shares.
X, Y and Z were charged in the case of robbery.
They were all charged as principals. But the
judge ruled that X is a principal, Y is an
accomplice and Z is a mere accessory. The
judge divided the civil liability proportionately.
Their liabilities among themselves are in
solidum. Against whom can the private
complainant recover said civil liability?
The private complainant can recover the entire
civil liability from X, the principal but X now has a
right of action against Y and Z insofar as their
respective civil liabilities are concerned. If X
cannot pay, the private complainant can go against
Y. Y can now go against X and Z because their
liabilities are in solidum but subsidiary insofar as
the private complainant is concerned.
Art. 111. Obligation to make restitution in certain
cases. — Any person who has participated
gratuitously in the proceeds of a felony shall be
bound to make restitution in an amount
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 CRIMINAL LAW REVIEW 2017
equivalent to the extent of such participation.

Art. 112. Extinction of civil liability. — Civil

liability established in Articles 100, 101, 102, and
103 of this Code shall be extinguished in the same
manner as obligations, in accordance with the
provisions of the Civil Law.

EXTINGUISHMENT OF CIVIL LIABILITY:

 By pardon of the offended party
 Other modes for extinguishing civil liability
under Civil Code (payment, Condonation, etc)

Civil liability is personal and cannot be

extinguished by pardon, amnesty, probation,
commutation of sentence, etc. Civil liability can
only be extinguished in the same manner as in Civil
Law, by the extinguishment of obligations, i.e.,
payment, loss of the thing, remuneration,
compensation*, etc.

*mentioned by Prosec pero diba cannot be

compromised if arising from penal offense except if
there was unjust refusal to accept.

Art. 113. Obligation to satisfy civil liability. —

Except in case of extinction of his civil liability as
provided in the next preceding article the offender
shall continue to be obliged to satisfy the civil
liability resulting from the crime committed by
him, notwithstanding the fact that he has served
his sentence consisting of deprivation of liberty or
other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation
of sentence or any other reason.

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CRIMINAL LAW REVIEW
BOOK 2 NOTES
(Prosec. Victoria Garcia)

By: Dizon | Manalo | Navarez | Shyu | Tubio

Faculty of Civil Law – University of Santo Tomas
Updated: 2016
 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

TITLE ONE cannot be considered as enemies

CRIMES AGAINST NATIONAL SECURITY AND THE because they are still considered as
LAW OF NATIONS (Articles 114 – 122) Filipino citizens. So the aliens refer to
the citizens of the enemy state which
ARTICLE 114 – TREASON is at war with the Philippines.
- is committed by a Filipino citizen or an alien residing in
the Philippines who levies war against the Philippine 3. That the offender either—
Government or adheres to her enemies by giving them a) Levies war against the Philippine
aid and comfort government, or
ELEMENTS: b) Adheres to the enemies by
1. The offender is by birth, a Filipino Citizen or an giving them aid or comfort.
alien residing in the Philippines, even if The third element refers to the
temporary allegiance mode of committing treason.
The offender may either be a Filipino treason may be committed by
citizen, because a Filipino citizen either:
owes permanent allegiance to the a. Levies war against the
Philippine Government; or another Philippine government ,requires
offender is a foreigner, an alien the concurrence of two
temporarily residing in the elements:
Philippines. During his temporary 1) there must be an
stay in the Philippines, he is given actual of assembly of men
protection by the Philippine 2) it is for the purpose of
Government under its laws therefore executing or effecting a
it is but incumbent upon him to have treasonable design by
temporary allegiance to the Philippine force.
Government. That is why even an This means that the said
alien, a foreigner temporarily residing offenders, Filipino citizens who
in the Philippines can also commit are said to be in collaboration
treason in times of war. with the enemy troops in order to
hand over the Philippine
2. That there is a war in which the Philippines is Government to the enemy
involved troops. Absent of that
The second element is that there is a collaboration, it cannot be
war in which the Philippines is considered as treason
involved. In the case of Laura vs.
Misa, treason is a war time offense. It b. Adheres to the enemies by
can be committed only in times of giving them aid or comfort.
war. In times of peace, Treason Adherence to the enemies—
remains to be dormant crime, mean that the Filipino citizen or
however, the moment when an the offender intentionally,
emergency arises, the moment a war intellectually and emotionally
arises, it is immediately put into effect favors the enemy.
as an act self-defense and self- Therefore,adherence to the
preservation of the Philippine enemies is an internal state of
Government. Treason cannot be mind, it is mental state, you
committed in times of peace, cannot see adherence to the
because in times of peace, there are enemies
no traitors.
How now would you know
Who are these traitors? that a person is adhering to
These enemies are troops of the the enemy state?
enemy state which is in war with the It is manifested by his
Philippines. Filipino men like the acts of giving aid or
MILF, NPAs, even if they are at war comfort to the enemy.
with the Philippine government, they

Dizon | Manalo | Navarez | Shyu | Tubio Page 1

 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
That is why these two
must concur:
1. Adherence to the
enemies
2. Giving them aid or
comfort
Mere adherence to
the enemies, without
any act of giving aid or
comfort to the enemy
will not bring along
treason, it is the act of
giving aid or comfort
which is the
manifestation of the
adherence to the
enemies.
EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES
BY GIVING AID OR COMFORT:
o By giving the enemies information, transportation,
arms, supplies, all of these will weaken the defense
of the Philippines and strengthen the enemy state.
o People vs. Perez:The court said, "the act of
commandeering women or giving women to the
enemy troops in times of war, to satisfy the lust of
the enemy troops is not considered as a
treasonable act." Because according the Court,
whatever benefit is given to the enemy is merely
trivial in nature,imperceptible and it was not the
intent of the offender (unintentionally).
There are two ways of proving treason under Article
114:
1. TESTIMONY OF TWO WITNESSES, AT
LEAST, TO THE SAME OVERT ACT,
OTHERWISE KNOWN AS THE "TWO-WITNESS
RULE"
There must be two witnesses who will prove
only on the commission by the offender of an
overt act showing that he adheres to the
enemy. Therefore, treason cannot be proven
by mere substantial evidence. There must be
direct evidence, a witness to this act of giving
aid or comfort to the enemy.
2. CONFESSION OF THE OFFENDER OR THE
ACCUSED MADE IN AN OPEN COURT
Confession of guilt must be made before a
court. Extra-judicial confession will not give
rise to conviction in case of the crime of
treason.
Dizon | Manalo | Navarez | Shyu | Tubio
ILLUSTRATION:
Q: What if there is war which the Philippines is involved? X
was among those who committed treason against the
government. now X in committing treason killed a public
officer of the government of the Philippines, in furtherance of
his act of treason. Will such act amounting to murder give
rise to a separate and distinct crime? Will you charge him for
two crimes based on treason and murder?
A: There is only one crime committed by him
and the crime committed is treason. Common
crimes such as Murder, physical injuries, homicide,
arson, if they are committed in furtherance to, in
connection with or incidentally to treason shall be
absorbed in the crime of treason because they are
atrocities for war and therefore, they are
considered as absorbed in the crime of treason. It
cannot even be complex, they are considered
absorbed in the crime of treason.
Q: What if A, B and C, conspired and agreed to commit
treason against the Philippine Government. After their
conspiracy and agreement, A went to X. A told his friend X
that he was in conspiracy with B and C to commit treason
against the Philippine Government. After A told him such
conspiracy with X, A left. X, despite knowledge of the
conspiracy to commit treason among A, B, and C, did not
disclose such information to the proper authorities. What
crime/crimes is/are committed by A, B, C, and X?
A: A, B, and C are liable for the conspiracy to
commit treason. There is a meeting of two or more
persons come to an agreement to commit the crime
of treason and decide to commit it.There is
proposal to commit treason when a person has
decided to commit the crime of treason and
proposes its execution to some other person or
persons. The moment that other person whom the
proposal was given, raise to the commission of
crime, we no longer have proposal, but we have
Conspiracy to commit treason. In the problem, A,
B, and C, conspired, agreed to commit the crime of
treason against the Philippine government,
therefore they are all liable for conspiracy to commit
treason.
Q: X, who had knowledge of the conspiracy to commit
treason among A, B, and C, however, despite that
knowledge, he did not disclose it to the proper authorities.
What is the liability of X?
A: X is liable for misprision of treason – is
committed by any person who owes permanent
allegiance to the Philippine Government who fails
to disclose of knowledge to commit treason as soon
as possible to the proper authorities.In the problem,
C, despite having knowledge of the conspiracy to
commit treason among A, B, and C did not divulge
Page 2
 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
it, did not disclose it to the proper authorities,
therefore, X is liable for misprision of treason.
TREASON can be committed both by Filipino citizens
and a foreigner temporarily residing in the Philippines,
but MISPRISION OF TREASON can only be committed
by a Filipino citizen who owes permanent allegiance to
the Philippine government, it cannot be committed by a
foreigner residing in the Philippines.
ARTICLE 117 – ESPIONAGE
There are two ways of committing espionage under Article
117:
I. By entering, without authority therefor, a
warship, fort, or naval or military establishment
or reservation to obtain any information, plans,
photographs or other data of a confidential
nature, relative to the defense of the Philippines
The offender can be any person. He can be a
Filipino citizen, or a foreigner, or he can be a
public officer or employee, or he can be a
private individual.
When will the crime of espionage arise?
Under the first mode, the crime of espionage
will arise moment the offender enters the
warship, fort or naval or military establishment
or reservation, without authority if his intention
is to obtain any information, plans,
photographs or other data of a confidential
nature, relative to the defense of the
Philippines.
It is not necessary that for the crime to arise
that he is successful in obtaining the data. It is
not necessary that he indeed obtained the
data. The mere act of entering without
authority is sufficient if his intention is to obtain
the data of confidential manner relative to the
defense of the Philippines.
II. By disclosing to the representative of a foreign
nation the contents of the articles, data or
information referred to in paragraph No. 1 of art.
117, which he had in his possession by reason
of the public office he holds.
This mode of committing espionage can only
be committed by a public officer who has been
trusted, by reason of his public position, of
articles, data of confidential nature relative to
the defense of the Philippines.
The crime of espionage will arise the moment
the offender divulges or discloses the data and
information to a representative of a foreign
nation.
Dizon | Manalo | Navarez | Shyu | Tubio
So even if he is in possession of the same, but
he does not divulge it to any representative of
a foreign nation, the crime will not arise.
Espionage can be committed in BOTH, in times of
peace and in times of war.
ARTICLE 118 –INCITING TO WAR OR GIVING MOTIVES
FOR REPRISALS
ELEMENTS:
1. That the offender performs unlawful or
unauthorized acts by the Philippine government.
2. That the said act provoke or give occasion for a war
involving or liable to involve the Philippines or
expose Filipino citizens to reprisals on their
persons and property while they are in a foreign
country.
3. He is not legally authorized to do so.
Inciting to war connotes that there is yet no war. It is
committed in times of peace.
Case of CAPTAIN MENDOZA
Hostage drama in Luneta. There were Hongkong
citizens boarded the bus and here comes captain
mendoza who was no longer a member of the
military, he entered the bus, with different weapons
and grenades and even killed some hongkong
citizens. Captain mendoza performed unlawful,
unauthorized acts which expose overseas Filipino
workers in Hongkong and china to reprisals on their
person or property. In fact, there were news at that
time that Hongkong or China would be engaging in
war with the Philippines. Head captain Mendoza,
one of the crimes that may be held against him is
inciting to war or giving motives for reprisals.
ARTICLE119 – VIOLATION OF NEUTRALITY
ELEMENTS:
1. The crime is committed when there is a war but the
Philippines is not involved in the said war and;
2. The competent authority issued a regulation for the
purpose of enforcing neutrality among Filipino
citizens and ;
3. The offender violates such regulation imposed.
Here, there is war but the Philippines is not involved in
the said war.
Q: There is a war between country X and country Y. Here
comes Pedro, a Filipino citizen, he was siding with country
X. Is he liable?
A: No, he is not liable of violation of neutrality
because in the problem, it did not say that the
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
competent authority (the President) issued a
proclamation or regulation imposing neutrality.
The violation will only arise if there is a proclamation or
regulation imposing neutrality and a Filipino citizen
violates such declaration or regulation issued by a
competent authority. Therefore, absence of such
declaration of neutrality, the crime of violation of
neutrality does not arise.
ARTICLE120 – CORRESPONDENCE WITH HOSTILE
COUNTRY
ELEMENTS:
1. That it is in time of war in which the Philippines is
involved.
2. That the offender makes correspondence with an
enemy country or any territory occupied by enemy
troops.
3. That the correspondence is either —
a.) Prohibited by the Philippine Government
b.) Carried on in ciphers or conventional signs
c.) Containing notice or information which might
be useful to the enemy
Here, there is a war in which the Philippines is involved.
Q: The Philippines is at war with the another country. Here
comes X, a Filipino citizen, he has a pen pal who is a citizen
of the country which is at war with the Philippines. The
competent authority or the President issued a declaration of
proclamation saying that there should be no correspondence
to the enemy state. But X missed his penpal, and so, he
wrote in a small piece of paper, "i love you, i miss you,
muamua!" Is X liable of the crime of correspondence with the
enemy?
A:X is liable because there was a declaration issued by
a competent authority that correspondence with the
hostile country is prohibited and if there is no
declaration, proclamation coming from the competent
authority prohibiting correspondence, the crime will only
arise if the said crime is carried on in ciphers or
conventional signs or Containing notice or information
which might be useful to the enemy.
ARTICLE 121 – FLIGHT TO ENEMY'S COUNTRY
ELEMENTS:
1. That there is s war in which the Philippines is
involved.
2. That the offender must be owing allegiance to the
Philippine Government
3. That the offender attempts to flee or go to enemy's
country
4. That going to the enemy country is prohibited by a
competent authority
Dizon | Manalo | Navarez | Shyu | Tubio
There must be a declaration or a proclamation issued
by a competent authority, that no Filipino shall flee to
the enemy's country and the offender violates such
proclamation.
Mere attempt will readily rise to the crime. It is not
necessary that the offender has actually gone to the
country.
There must be declaration or proclamation prohibiting
flight to enemy state.
ARTICLE 122 – PIRACY
ELEMENTS:
1. The first element is where the vessel is
located. The vessel can either be on the high
seas or on Philippine waters (this was brought
about by the amendment of RA 7659). Before
the amendment of RA 7659, Piracy under
Article 122 can only be committed when the
vessel is on the high seas. But because of this
amendment brought about by RA 7659, Piracy
now under Article 122 can be committed when
the vessel is on Philippine waters.
2. The second element provides for the
offenders. The offenders must NOT be
members of the complement or passengers of
the vessel. Therefore, the offenders must be
STRANGERS to the vessel. They must be
coming from the outside, not from the inside.
3. The third element refers to the mode of
committing piracy.
a. The offenders either ATTACK or
SEIZE the vessel.
b. The offenders either SEIZE IN
WHOLE or IN PART the cargo, the
equipment or the personal
belongings of the passengers or
members of the complement.
Based on these elements, you will notice that piracy is
akin to robbery. It is in effect robbery. It is just called
piracy because the object of the thing is either the
vessel or the cargo or equipment of the said vessel.
There is also the use of force or intimidation. There is
also the use of violence against persons. There is also
intent to gain.So it is akin, similar to robbery.
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

ARTICLE122 –MUTINY A: They are liable of PIRACY UNDER ARTICLE

COMMITTED WHEN:
1. The vessel is either on the high seas or on
Philippine waters
2. The OFFENDERS are MEMBERS OF THE
COMPLEMENT or PASSENGERS OF THE
VESSEL
3. The offenders raise a commotion or
disturbance on the board the ship against the
lawful command of the captain or the
commander of the ship.
In mutiny, there is no taking because in mutiny there is no
intent to gain. Mutiny is the rising of commotion, a resistance
against the lawful command, against the lawful authority of
the commander or captain of the ship.
Since in mutiny, there is no intent to gain, mutiny is akin to
sedition. The rising of commotion, an uprising, an act of
dissent against lawful authority.
SO HOW DO YOU DISTINGUISH PIRACY VS. MUTINY?
1. In piracy, the offenders are strangers to the vessel,
whereas, in mutiny, the offenders are necessarily
inside the vessel, they are either members of the
complement or passengers of the vessel
2. In Piracy, there is intent to gain because it is similar
to robbery, whereas, in mutiny, there is no intent to
gain because the essence of the crime is to go
against the lawful authority of the commander of
the ship.
122. The vessel is on Philippine waters, the
offenders are not members of the complement or
passengers of the ship. They seize the cargo and
equipment of the vessel. Therefore, it is piracy
under Article 122.
Q: The vessel is on Philippine waters. While the vessel is on
Philippine waters, the members of the complement and
passengers of the said vessel in conspiracy with one another
took the cargo and equipment of the said vessel, and then
they boarded a second vessel and off they went. What crime
is committed by the members of the complement and
passengers of the said vessel?
A: The members of the complement and
passengers of the vessel committed ACTS OF
PIRACY because they seize in whole or in part the
cargo or equipment of the vessel but NOT PIRACY
UNDER ARTICLE 122 because in Article 122, it is
a requisite that the offenders must be strangers to
the vessel. Here, the offenders are members of the
complement and passengers of the vessel. So the
crime committed is PIRACY BUT UNDER PD 532.

ILLUSTRATION:
Q: The vessel is on the sea going to Mindoro. So while the
ship is on its way to Mindoro, suddenly there comes a big
storm. The commander or the captain of the ship said that
they should first move towards the shore and let the storm
comes calm in order to ensure the safety of the passengers
of the vessel. The passengers of the vessel and members of
the complement didn’t want the decision of the said captain
of the ship and so they seize the captain of the ship and
manned the vessel until they reach Mindoro. What crime, if
any, is committed by these members of the complement and
passengers of the vessel?
A: They are liable of MUTINY. The vessel is on
Philippine waters. The offenders are members of
the complement and they go against the lawful
authority of the captain of the ship. Therefore they
are liable of mutiny.

Q: While a vessel is on Philippine waters, here comes a

second vessel. Four men from the second vessel boarded
the first vessel and at gunpoint, took the cargo and
equipment of the said vessel. Placed them in the second
vessel and off they went. What crime is committed by these
four men?

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 (PD
532)
Under PD 532, piracy is committed by attacking or seizing
the vessel or seizing in whole or in part the cargo, equipment
or personal belongings of the members of the complement
or passengers of the vessel IRRESPECTIVE of the value
thereof, committed by means of force and violence and
committed by any person whether he may a member of the
complement or passenger of the vessel or strangers to the
vessel BUT the vessel is on Philippine waters. Therefore, for
PIRACY UNDER PD 532 to arise, it necessary that the
vessel is on Philippine waters.If the vessel is on the high
seas, immediately rule out PD 532.
HOW COULD YOU KNOW IF IT IS PIRACY UNDER PD
532 OR PIRACY UNDER ARTICLE 122 OF RPC?
If the vessel is on Philippine waters, your choice is
either Piracy under PD 532 or Piracy Article 122.
Where lies the difference?
Since Article 122 of RPC is the
main law, we have to reconcile it
with PD 532. Or PD 532 must be
reconciled with Article 122.
Piracy under PD 532, the
offenders can be any person.
He can be a stranger. He can
be members of the
complement.
Therefore, where does PD 532 apply?
It will apply when the offenders
are members of the
complement or passengers of
the vessel and the vessel is on
the Philippine waters.
Q: The vessel is on Philippine waters, suddenly men from
the outside committed acts of piracy. What crime is
committed?
A: Piracy under Article 122
Q: The vessel is on Philippine waters. Acts of piracy were
committed by the members of the complement or
passengers of the vessel. What crime is committed?
A: Piracy under PD 532
Q: What if the vessel is on the high seas? While the vessel
is on the high seas, there comes a second vessel. Four men
from the second vessel boarded the first vessel and at
gunpoint took the cargo and equipment of the first vessel.
What crime is committed by these four men?
A: Piracy under Article 122. The vessel is on the
high seas. The offenders are not members of the
complement or the passengers of the vessel. They
seize in whole or in part the cargo and equipment
of the said vessel.
Dizon | Manalo | Navarez | Shyu | Tubio
Q: While the vessel is on the high seas,members of the
complement or passengers of the vessel in conspiracy with
one anothertook away the cargo and equipment of the
vessel. What crime is committed?
NOTE: It is not piracy under Article 122
because here, the offenders are members
of the complement or passengers of the
vessel. In Article 122, it is required that the
offenders must be strangers to the vessel.
It cannot be piracy under PD 532 because
the vessel must be on Philippine waters.
In our problem, the vessel is on the high
seas. So, what crime is committed?
A: Again, piracy is akin to robbery. Since Piracy
under Article 122 and Piracy under PD 532 do not
apply, the crime committed is ROBBERY IN AN
UNINHABITED PLACE.
ARTICLE 123 – QUALIFIED PIRACY
What are the circumstances which will qualify piracy?
Under Article 122, the following
circumstances will qualify piracy:
1. Whenever the offender have seized
a vessel by boarding or firing
upon; or
2. Whenever the offenders have
aband0ned their victims without
means of saving themselves; or
There is intent to kill.
3. Whenever the crime is accompanied
by murder, homicide, physical
injuries or rape
Whenever these four crimes
accompanied the act of
piracy, it will not bring about
a separate and distinct
crime or a separate and
distinct charge of murder,
homicide, physical injuries
or rape. These crimes are
absorbed because they are
circumstances which will
qualify the penalty to death.
NOTE: These circumstances are
separate and distinct from each other. It is
not necessary that all of themmust be
present. The presence of one will qualify
piracy. Notice the conjunction OR. These
are qualifying circumstances which are
prejudicial to the accused therefore they
must be strictly construed.
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
ILLUSTRATION:
Q: What if the vessel is on Philippine waters, and there
comes a second vessel. Four men from the second vessel
boarded the first vessel and at gunpoint, they asked the
passengers to give to them all their valuables. One woman
didn’t want to give her wedding ring because it was so
precious to her and so one of the men forcibly took the
wedding ring from the finger such that the finger was severed
from it. What crime is committed?
A: QUALIFIED PIRACY because piracy was
accompanied by physical injuries.
Q: What if in the same problem, the woman didn’t want to
give the ring, one of the men slapped the woman on the face
three times and the face of the woman became reddish. She
suffered slight physical injuries. What about the fact that the
injury suffered was only slight?
A: It will not make a difference although the injury
suffered was only slight. In the third circumstance
which will qualify piracy, the word “physical injuries”
is used in its generic sense. Therefore, whatever be
of kind of physical injuries, whether serious or slight
for as long as it was accompanied by piracy, it will
be considered as qualified piracy.
Q: What if in the same problem, the woman didn’t want to
give the ring and one of the men touched the private parts of
the said woman and after touching the private parts of the
said woman with lust, he forcibly took the ring. What crime is
committed by the said men?
A: All of them will be liable for piracy. However, the
man who touched the private part of the woman will
be liable for two crimes: piracy and acts of
lasciviousness. Acts of lasciviousness is not
mentioned in Article 123. Therefore, its presence
will not qualify piracy. It will bring about a separate
and distinct charge of acts of lasciviousness.
So, only these four crimes (murder, homicide,
physical injuries and rape) will qualify piracy. If other
crime is committed and accompanied by piracy and
is not among these four crimes mentioned in Article
123, it will bring about a separate and distinct
charge.
QUALIFIED MUTINY
Insofar as mutiny is concerned, what are the
circumstances which will qualify mutiny?
In Article 123, there is no specific mention of
qualified mutiny, however according to Reyes
and other legal luminaries, of the three
circumstances stated in Article 123,
paragraphs 2 and 3 are considered as
circumstances which will qualify mutiny. That
is:
Dizon | Manalo | Navarez | Shyu | Tubio
1. whenever the offenders have
abandoned their victims without
means of saving themselves; or
2. whenever the crime is
accompanied with murder,
homicide, physical injuries or
rape
According to Reyes and
other legal luminaries, only
these two are considered
qualified in mutiny because
in mutiny, the offenders are
necessarily, ordinarily inside
the vessel because they are
members of the
complement or passengers
of the vessel.
ANTI-HIJACKING LAW (R.A. No. 6235 otherwise known
as An Act Prohibiting Certain Acts inimical to Civil
Aviation)
Under RA 6235, there are four prohibited acts.
1. By compelling the pilot of an aircraft of Philippine
registry to change its course or destination OR by
seizing or usurping control thereof while it is in flight
2. By compelling an aircraft of foreign registry to land
in Philippine territory OR by seizing or usurping
control thereof while the same is in Philippine
territory
These are the first two prohibited acts. How could
you distinguish the first act from the second act?
If the aircraft is of Philippine registry, the
seizure or usurpation to amount in
violation of RA 6235, requires that the
aircraft must be in flight. An aircraft is in
flight the moment all its external doors
had been closed, following embarkation
until any of it external doors had been
opened for purposes of disembarkation.
On the other hand, if the aircraft is of
foreign registry, the seizure or usurpation
did not need while it is in flight. For as
long as the aircraft of foreign registry is
within the Philippine territory, seizure or
usurpation thereof will bring about
violation of RA 6235 even if all its doors
are opened; even if it is not in flight.
Insofar as these two prohibited acts are
concerned, what are the circumstances which will
qualify the penalty?
Under RA 6235, the following
circumstances will qualify the first two
acts:
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
a. By firing upon the pilot or the
member of the crew or passenger of
the aircraft; or
b. By exploding or attempting to
explode by mean of a bomb or
explosive for purposes of destroying
the aircraft; or
c. Whenever the crime is accompanied
by murder, homicide, serious
physical injuries or rape
NOTE: In case of piracy, the law
uses the word “physical injuries” in
its generic sense. Whatever be the
kind of physical injury that will
accompany piracy, the crime
committed is qualified piracy. But
in case of hijacking under RA
6235, the law is specific; it must
be serious physical injuries.
Therefore, if the physical injuries
that would accompany the act of
usurpation and seizure of the
aircraft would only be less serious
physical injuries or slight physical
injuries, the penalty is not qualified.
The penalty is qualified because
from the penalty of 12 to 20 years,
it would become 15 years to death.
3. By carrying or loading on board a PASSENGER
AIRCRAFT operating as a public utility in the
Philippines materials or substances which are
explosive, flammable, corrosive or poisonous
4. By shipping, carrying or loading on board a
CARGO AIRCRAFT operating as a public utility in
the Philippines materials or substances which are
explosive, flammable, corrosive or poisonous in a
manner not in accordance with the rules and
regulations of the Air Transportation Office
HOW WOULD YOU DISTINGUISH THE 3RD FROM THE
4TH ACT?
If the aircraft is a PASSENGER AIRCRAFT,
the mere act of carrying or loading explosive,
flammable, corrosive or poisonous substances
will immediately constitute a violation of RA
6235.
If however the aircraft is a CARGO
AIRCRAFT, the loading of these poisonous
substances, flammable substances, is allowed
because it is a cargo aircraft. The crime will
only arise if such act of loading is not in
accordance with the rules and regulations of
the Air Transportation Office.
Dizon | Manalo | Navarez | Shyu | Tubio
HUMAN SECURITY ACT OF 2007 (R.A. No. 9372)
Q: What if there is a bus and the bus is parked at Lunetapark
and it was full of children. And here comes X, X had different
kinds of explosive all over his body. And at gunpoint, entered
the said bus and told the children to keep quiet. Thereafter,
there is a cartolina on the glass window of the said bus.
Written on the cartolina were his demands to the
government. His demands were first, that his brother, a
member of NPA and who is being incarcerated by the
military be released and his second demand, was that funds
be transferred to his account. So these were the demands
made by X against the government. Because of this, the
parents of the children arrived, the media arrived, all the
cabinet secretaries arrived. Only the president did not arrive.
So everybody was there. They were afraid that the children
might die so there was chaos in the entire Philippines. It took
the members of the military and police 12 hours to subdue
X. So after 12 hours, they were able to arrest X. What crime,
if any, may be filed against X?
A: X will be charged of the crime of terrorism
under RA 9372, the Human Security Act of 2007.
Under Section 3 of Ra 9372, terrorism is committed
when the offender commits any of the following
acts punishable under the RPC:
a. Piracy
b. Rebellion
c. Coup d’Etat
d. Murder
e. Kidnapping and Serious Illegal
Detention
f. Crimes involving Destruction
If the offender commits any of these acts
punishable under the RPC or any of the following
acts punishable under special penal laws:
1. Article 122 (Piracy in General and Mutiny in the High
Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d’Etat), including acts committed by
private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,
or under
1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and
Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and
Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree
Codifying the Laws on Illegal and Unlawful Possession,
Manufacture, Dealing in, Acquisition or Disposition of
Firearms, Ammunitions or Explosives)
of the predicated crimes in terrorism. Or any of
these predicated crimes, he can no longer be
charged because they are necessarily included in
terrorism. This is known as the ABSORPTION
PRINCIPLE in terrorism.

Q: But what if in the same problem, while X was waiting for

If the offender commits any of these crimes under his demands to be given by the government, he saw a girl
the RPC and any of the crimes under special penal and with lewd design, he touched the private parts of the
laws, thereby sowing and creating a condition seven-year old girl. Therefore he committed a violation of RA
widespread and extraordinary fear and panic 7610 the Anti-Child Abuse Law. He was acquitted of
among the populace in order to coerce the terrorism. Can the state prosecute him for violation of RA
government to give in to an unlawful demand, he is 7610?
liable of terrorism and the penalty is 40 years A: Yes, because it is not among the predicate
imprisonment without the benefit of parole under crimes. It is not a crime necessarily included in the
the Indeterminate Sentence Law. So it is the crime of terrorism.
maximum penalty of 40 years. He has to serve it
totally. Even if he has already served the minimum,
he cannot be given the benefit of parole under the
Indeterminate Sentence Law. So it is necessary
that he must commit any of these predicate crimes
and after committing these predicate crimes, where
lies the difference? Because his act that sowed and
created fear and panic among the populace
coupled with an unlawful demand against the
government.

Q: So let us say that X was charged with terrorism based on

a valid complaint or information a case of terrorism was filed
against him before the RTC. However, after trial on the
merits, the judge acquitted him. According to the judge, the
prosecution failed to prove the guilt of the accused beyond
reasonable doubt therefore acquittal for reasonable doubt.
Since he is acquitted of terrorism under RA 9372, can he still
be prosecuted for his predicate crime of kidnapping and
illegal detention because he detained the children for more
than 12 hours? Can he still be prosecuted for Illegal and
Unlawful Possession of Firearms, Ammunitions or
Explosives because he was full of firearms and ammunitions
and explosives?
A: No more. Because of Section 49 of RA 9372.
Under Section 49 of RA 9372, whenever a person
has been charged of terrorism, or any act
punishable under RA 9372, based on the valid
complaint or information, sufficient information and
substance to bring about and thereafter he is
acquitted or the case is dismissed, he can no longer
be subsequently prosecuted for any other felony or
offense necessarily included in the crime charged.
The crime of kidnapping and serious illegal
detention is necessarily included in terrorism
because it is one of the predicate crimes. Likewise,
violation of PD 1866, as amended Illegal and
Unlawful Possession of Firearms is also
necessarily included in terrorism because it is one

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE
STATE (Articles 124 – 133)
The acts under TITLE TWO are made criminal because they
both appease the Bill of Rights. The rights stated under the
Constitution and the first of these is under ARTICLE 124,
125 and 126 – Arbitrary Detention.
3 KINDS OF ARBITRARY DETENTION:
1. Arbitrary Detention by detaining a person without
legal ground under Article 124
2. Arbitrary Detention by failing to deliver the detained
person to the proper judicial authorities within 12,
18 or 36 hours under Article 125
3. Arbitrary Detention by delaying the release of
prisoners despite the judicial or executive order to
do so under Article 126
ARTICLE124 – ARBITRARY DETENTION BY DETAINING
A PERSON WITHOUT LEGAL GROUND
ELEMENTS:
1. That the offender is a public officer or employee
Who is the offender in Article 124?
The offender is a public officer or
employee. BUT NOT ALL PUBLIC
OFFICERS OR EMPLOYEES can
commit arbitrary detention. The
public officer of employee can commit
arbitrary detention are only those
who have been vested with
authority to effect arrest and
detain a person or at least to cause
the detention of a person.
Public officers who have been vested with
authority to effects arrest and detain a
person are POLICE OFFICERS. On the
other hand, public officers vested with
authority to cause the detention of a
person are MEMBERS OF CONGRESS.
They can order the detention of a person
who has been cited of contempt for failing
to accurate their proof, or we have
JUDGES they can order the summary
detention of persons cited in contempt of
court.
2. That he detains a person
The second element requires that the offender
detains a person.
So when is there detention?
There is detention when the offended
party is placed in incarceration. When
the offended party is placed behind
bars or when the offended party is
restrained of his person or liberty.
Dizon | Manalo | Navarez | Shyu | Tubio
In order to amount arbitrary detention
there must be an act of restraint on
the person or liberty of the
offended party. Absent that intent,
absent the actual restraint on the
person or liberty of the offended party
– It can be any other crime BUT
NOT ARBITRARY DETENTION.
Therefore, Supreme Court said that
intent to detain must be manifest, it
must be evident. Absent that, it can
be any other crime but not arbitrary
detention.
3. That the detention is without legal grounds
The third element requires that the detention
must be without legal ground.
So when is detention without legal
grounds under Article 124?
1. When the said offended party was
arrested without a warrant of arrest.
2. When the said offended party was
arrested and his arrest and detention
does not fall under any of the
circumstances or a valid warrantless
arrest.
3. When he is not suffering from
violent insanity or any other ailment
which requires compulsory
confinement.
All of these are not
considered valid grounds for
detention.
So to reverse, what are the valid
grounds for detention?
The following are valid grounds for
detention:
a.) If the person does not receive
and detained by virtue of a
warrant of arrest.
b.) If a person was arrested and
detained under any of the
circumstances for a valid
warrantless arrest
c.) If a person was suffering violent
insanity or any illness which
requires compulsory
confinement.
These are the valid ground
for the arrest and detention
of a person.
ILLUSTRATION:
Q: So if a person, driving his vehicle entered a one way
street and in violation of the LTO rules and regulation, was
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

stopped by police officer, his license was taken and gave him They committed GRAVE THREATS because
a ticket and was bought to the nearest PNP station and was they threatened to kill X if he would not come
placed behind bars. He was detained. That was 8 o’clock in back. It is the grave threats that made X come
the morning then the arresting officer left. And on the back in the police station.
afternoon, the police officer returned to the police station.
Upon his arrival, he immediately released the incarcerated ARTICLE125 – ARBITRARY DETENTION BY FAILING TO
person whom he detained for entering a one way street. Is DELIVER THE DETAINED PERSON TO THE PROPER
the said police officer liable for arbitrary detention under JUDICIAL AUTHORITIES WITHIN 12, 18 OR 36 HOURS
Article 124? ELEMENTS:
A: YES, he is liable ofARBITRARY DETENTION. 1. The offender here is a public officer or
He is a public officer vested with authority to effect employee vested with authority to effect arrest
arrest and detain a person. If he detained the and detain a person
person, the detention was without legal ground. It 2. That offender has detained a person for some
is without legal ground because entering a one way legal ground
street and violating the traffic rules and regulation The second element requires that the offender
is not a ground for incarceration. It is not a ground arrests and detains a person for some
for a person to be placed behind bars. If a person legal ground.
committed a violation of traffic rules and regulation What are these legal grounds referred to
like entering a one way street or beating the red under Article 125?
light, he should only be given a ticket. There should The legal ground being referred to in
not even be a confiscation of license. After that, he Article 125 is not the fact that the said
should be allowed to leave but that is not a ground arrest was made by virtue of a
for him to be placed under detention. Since the warrant of arrest because if the
officer detained the person without any legal offended party was arrested by the
ground HE IS LIABLE FOR ARBITRARY public officer by virtue of a valid
DETENTION. warrant of arrest he does not have
the obligation to deliver him to the
Q: What if X is suspected to be a snatcher and many proper judicial authorities.
complaints was filed against him. One time, when the police So what are these valid instances in
officers were conducting a patrol they saw X who was arresting a person?
perhaps waiting for a ride. When the police officers saw X These refer to circumstances of valid
they immediately arrested X and brought him to the nearest warrantless arrests under Section 5
police station. They told X that he is to be investigated for he Rule 112 of the Rules of Court. It
is said to be a cellphone snatcher. So he was brought to the requires that a peace officer or a
investigation room however, the investigation officer was not private individual may even without a
around so the arresting officer told him that he needs to be warrant arrest a person under the
investigated and that he can leave but he must make sure to following circumstances:
come back for purposes of investigation otherwise if he does a.) That in his presence the
not come back the next time they see him they will kill him. person to be arrested has
So because of that, X would get out of the precinct but would committed, is actually
immediately return. Are the police officers liable for arbitrary committing, or is attempting
detention? to commit a crime. This is
A: NO, the police officers are not liable for otherwise known as
arbitrary detention. There is no intent to restrain INFLAGRANTE DELICTO
or detain the person or liberty of X, the offended ARREST
party. In order to amount to arbitrary detention it is b.) When a crime has in fact
necessary that the intent of the public officer to just been committed, and
restrain the person or liberty of the offended party the police officer has
must be manifest and it must be evident. In this probable cause to believe
case however, it is not. based on personal
knowledge of facts and
Even if there is a threat on the part of the police circumstances that the
officer there is however no intent to detain X. What person to be arrested is the
are the crimes if any are the police officer liable for? one who committed the
crime. This is otherwise

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
known as HOT PURSUIT
ARREST.
c.) When the person to be
arrested is a prisoner who
has escaped from a penal
establishment or a place
where he is serving final
sentence or temporarily
detained while his case is
pending, or has escaped
while being transferred from
one penal institution to
another.
These are the
circumstances for a
valid warrantless
arrest. These are the
circumstances referred
to in the second
element of Article 125.
3. That the offender fails to deliver the person
arrested to the proper judicial authorities within
12, 18 or 36 hours.
The third element requires that that the
offender fails to deliver the person arrested to
the proper judicial authorities within 12, 18 or
36 hours.
What do you mean by delivery?
Delivery does not mean that you
really have to deliver the physical
body of the person arrested to the
court. It means constructive delivery
or legal delivery, meaning, the filing of
the appropriate case before the
proper court. That is delivery to
proper judicial authorities - filing of
the case before the proper court.
The law says that a public officer must
deliver to the proper judicial authorities.
So judicial authority, what does it mean?
The proper judicial authorities refers
to COURTS OF JUSTICES OR
JUDGES OF THE COURTS THAT
HAS THE POWER TO ORDER THE
INCARCERATION OR DETENTION
OF A PERSON OR HIS
TEMPORARY RESTRAIN UPON
POSTING OF APPROPRIATE
COMPLAIN.
The FISCAL does not belong to the
proper judicial authority because he
belongs to the executive branch. The
Fiscal is under the Department of
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Justice and not under the Supreme
Court. The head of the Fiscal is
Secretary De Lima and the President
and not Chief Justice Sereno. That’s
why a Fiscal is not within the meaning
of a judicial authority. Second, fiscal
may recommend the bail but he does
not have the power to fix the bail and
allow the accused to go on temporary
liberty. Only the judges are allowed
to fix the bail and order the temporary
liberty of the accused until upon the
posting of the said bail.
The law says that a public officer must deliver the person
arrested to proper judicial authority within:
a) 12 hours, for crimes punishable by light penalties,
or their equivalent
b) 18 hours, for crimes punishable by correctional
penalties, or their equivalent
c) 36 hours, for crimes punishable by afflictive or
capital penalties, or their equivalent
ILLUSTRATION:
Q: What if a person has been arrested Inflagrante Delicto in
possession of an unlicensed firearm. Possession of
unlicensed firearm is punished by a special penal law (P.D.
1866 as amended). Is the arresting officer required to deliver
the accused to the proper judicial authorities? Does Article
125 apply even to violation of special penal laws?
A: Yes, because the law says “or their
equivalent”. 12 hours, for crimes punishable by
light penalties, or their equivalent. That means all
their equivalent refers to their equivalent even in
cases of violation of special penal laws. Therefore,
even if the crime committed or the crime for which
the offender is being arrested is based on violation
of special penal laws, the arresting police officer
has the obligation to deliver the person arrested to
the proper judicial authorities in consonance with
Article 125 of the Revised Penal Code.
Q: What if the police officers caught X in the actual act of
killing Y. So they saw X and Y fighting and they saw X
stabbed Y to death. Therefore, X is liable of homicide. They
arrested X and that was Saturday, 3 o’clock in the afternoon.
Sunday, there is no office. The following day, Monday,
happens to be declared a special non-working holiday.
Therefore, the police officers were able to deliver X to the
proper judicial officer only on Tuesday, 8 o’clock in the
morning. They were able to file the case in the Fiscal’s office
for purposes of proceedings Tuesday, 8 o’clock in the
morning, beyond 36 hours which was required by law. Are
the police officers liable for arbitrary detention?
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
A: NO, the police officers are not liable for
arbitrary detention. The Secretary of the
Department of Justice has made a legal opinion
that the said 12, 18 and 36 hours refers to
WORKING HOURS. These refer to the time when
the courts are open in order to receive the cases to
be filed against them. This does not include the
crime wherein the courts are closed and they did
not receive the complaint or information to be filed
against the accused.
ARTICLE126 – ARBITRARY DETENTION BY DELAYING
THE RELEASE OF PRISONERS DESPITE THE JUDICIAL
OR EXECUTIVE ORDER TO DO SO
ELEMENTS:
1. The offender is a public officer or employee
2. That there is a judicial or executive order for
the release of the prisoner or detention
prisoner, or that there is a proceeding upon a
petition for the liberation of such person.
3. That the offender without good/valid reason
delays: (1) the service of the notice of such
order to the prisoner; or (2) the performance of
such judicial or executive order for the release
of the prisoner; or (3) the proceeding upon a
petition for the release of such person.
NOTE: What is punishable is the delay without valid reason,
the delay of the release of the prisoner despite the judicial or
executive order to do so.
Example of judicial order for the release of a
prisoner let’s say that a person has been charged
in court and the public prosecutor failed to present
any evidence for consecutive times and no
witnesses has ever been presented since the
beginning. The judge will dismiss the case and
order the release of the accused from jail. This is
an example of a judicial order for the release of a
prisoner. Or let’s say the judge acquitted the
accused then he will order the release of the said
accused from jail.
How about an example of an executive order for a
release of a prisoner? A person was arrested and
placed behind bars and proceeding was filed
before the fiscal’s office. The fiscal ordered the
release of the prisoner. This is an example of
executive order for the release the prisoner.
Q: What if X has been charged of two crimes - Illegal sale of
dangerous drugs and illegal possession of dangerous
drugs? So, two crimes were filed against him. The illegal
possession of dangerous drugs was filed before the RTC
Branch 6 on the other hand; the illegal sale was filed before
RTC Branch 87. Two different courts were filed with. In the
illegal possession of dangerous drugs which was filed in
RTC Branch 6, no witnesses were ever presented and so
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the judge immediately declared the dismissal of the case and
he ordered that X should already be released from jail.
However, the case for illegal sale of dangerous drugs under
RTC Branch 87 is still ongoing. The jail warden receives the
order coming from the judge RTC Branch 6 that X should be
released. The jail warden did not comply. Is the jail warden
liable for arbitrary detention under Article 126 - Arbitrary
Detention by delaying the release of prisoners despite the
judicial or executive order to do so?
A: NO, the jail warden is not liable for arbitrary
detention under Article 126 because there is still
another pending case against the said prisoner
before another court. Therefore, it is incumbent
upon him not to compel with the judge of Branch 6
since there is another case in Branch 87 which is
still ongoing. What the law punishes is delay
without valid reason for the release of the prisoner.
ARTICLE127 – EXPULSION
Expulsion is committed by public officers or employees who
shall expel any person from the Philippines or who compels
him to change his residence without any lawful authority to
do so.Again, the offender is a public officer or employee who
acts either:
a.) By expelling a person from the Philippines
b.) By compelling a person to change his
residence
What the law prohibits is that if this public officer or
employee expels him from the Philippines or
compels him to change his residence without lawful
authority to do so because there are persons who
have been authorized by law to deport a person
from the Philippines or to compel a person to
change his residence.
For example, the President has the power to deport
or expel a person from the Philippines. Another
example is a foreigner who is known to be a
persona non grata; the President may order his
deportation to his home.
The courts on the other hand, have the power to
compel a person to change his place of residence.
Let’s say the offender is a concubine and the
penalty to be imposed to a concubine is destierro.
Therefore, the concubine is prohibited from
entering a particular place based on the judgment
of the court. Now, theprohibited place from which
she is prohibited from entering is the place where
she lives. She cannot enter the said place
therefore; the court is empowered to compel her to
change her place of residence because she cannot
enter the place wherein her house is situated.
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
VIOLATION OF DOMICILE (ARTICLE 128, 129, 130)
a public officer or employee entered into a dwelling
of another which is not armed with a search warrant
different prohibited acts constituting violation of
domicile:
I. By entering any dwelling against the will of
the owner thereof; or
II. By searching papers or other effects
found therein without the previous
consent of such owner; or
III. By refusing to leave the premises, after
having surreptitiously entered
ARTICLE128 – VIOLATION OF DOMICILE
ELEMENTS:
1. The offender is a public officer or employee
Who is the offender in the violation of domicile?
He must be a public officer or employee acting
under color of authority
A public officer or employee is said to be acting
under color of authority if he has been vested
with the authority to implement a search
warrant, but when he entered in the said
dwelling, he is not armed with a search
warrant. Therefore, he was acting under color
of authority.
Even if he is a public officer or employee, but
he did not act under color of authority, is liable
only, not for violation of domicile, but is either
liable for qualified trespass to dwelling or
trespass to property because the public officer
or employee is acting under his private
capacity.
2. He was not authorized by a judicial order to enter
the dwelling and/or make a search therein for
papers or other effects
The second element requires that
entering upon the dwelling of another
which is not authorized by a judicial order.
The judicial order refers to a search
warrant
3. He either enters the dwelling of another against the
will of the latter or searching for papers or other
effects found therein without the consent of the
owner, or after having surreptitiously entered the
dwelling, being discovered and asked to leave, he
refuses to leave.
The third elements provides for the different modes of
violation of domicile
(These three modes are separate and distinct from each
other – do not look for all the three modes in a problem,
violation of one of them will bring about violation of domicile)
1. By entering any dwelling against the will of the
owner thereof; or
- There must a prohibition, an opposition from entering. It
can either be an implied or expressed opposition from
Dizon | Manalo | Navarez | Shyu | Tubio
entering.
Example:
implied opposition – the door is closed. It can be
said that the owner is saying that “No one can
enter my house”
expressed prohibition – when the owner is
inside the house and the officer knocks upon the
door and upon seeing the officer, the owner
closes the door.
if there are sayings – “Do not enter”, “No entry”
- It does not mean entering without the consent. An entry
without the consent is not an entry against the will.
- When you say entry against the will, there must be an
opposition or a prohibition from entering the dwelling.
2. By searching papers or other effects found therein
without the previous consent of the owner; or
- The consent of the owner matters. Even if the public
officer or employee is allowed inside, the fact that he is
allowed inside does not mean that he is allowed to
conduct the search.
- He must ask first for the previous consent of the owner
before proceeding with the search. Without the previous
consent of the owner to conduct the search, any search
would be a violation of domicile.
3. By refusing to leave the premises, after having
surreptitiously entered the dwelling
- it is his refusal to leave the premises that will bring about
the violation of domicile, NOT the surreptitiously
entering. But it is required that entering must be done
surreptitiously.
- Surreptitious entering means entering the dwelling
secretly, candidly.
- Therefore, it is important that he mus-t refuse to leave
after being discovered and asked to leave in order to
amount to violation of domicile.
- Mere surreptitious entering will not bring about violation
of domicile.
ILLUSTRATION:
Q:What if the door of the house was opened, a police officer
without being armed with a search warrant, entered the door
of the house and went up to the sala. The owner of the house
saw him and asked him to leave, and he left. Is he liable for
violation of domicile?
A: He is not liable for violation of domicile.
When the door of the house is open, there is no
prohibition; there is no opposition from entering.
Anybody may enter even without a search warrant;
therefore, since there is no prohibition or opposition
from entering, violation of domicile cannot be
committed under the first act. Under the second act,
it cannot be committed because he did not conduct
the search. The third act also not done because the
entering of the house is not done surreptitiously.
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
Q: What if in the same problem, the door of the house was
opened, a public officer with the intent to conduct a search
warrant entered the house, when he was in the sala, the
owner of the house saw him and told him to leave. He did
not leave; he just stayed there and sat on the sofa. Is he
liable for violation of domicile?
A: He is not liable for violation of domicile. Under
the first act, is entry against the will? – NO, the door
was opened. Therefore, there was no opposition or
prohibition from entering. Under the second act, he
did not conduct a search. Under the third act, is the
entering done surreptitiously? – NO, because the
door of the house was opened; therefore, he did not
violate any of the following acts amounting to
violation of domicile.
But he did not leave the house, although the owner
of the house asked him to leave. Is he liable?
Yes. He is liable for unjust vexation.
(Nangiinislangsiya)
Although he did not the house, he
cannot be liable for violation of domicile
because his act does not constitute the
acts prohibited by Article 128.
Q: The door of the house was closed, but it was not locked.
A police officer without a search warrant opened the door,
realizing it was not locked, entered the house and went up
to the sala intending to conduct the search. Before he could
conduct the search, the owner of the house saw him, and
told him to leave and he left. Is he liable for violation of
domicile?
A: Yes. He is laible for violation of domicile.
Even if he left the said place upon being told to do
it, he is already liable because his entry was against
the will of the owner. The door was closed although
it was not locked. Therefore, there was an implied
opposition, an implied prohibition from
entering.When he entered without a search warrant
intending to conduct a search is already a violation
of domicile
Q: What if the police officer knocked on the door of the house
of X. X opened the door, upon seeing the public officers, X
allowed them to enter. The police officer told X that they were
looking for a stolen car stereo in the neighborhood; we are
going to conduct a search in your house. X said, "No, you
cannot conduct a search inside my house”. The police
officers agreed and left the house. Are they liable for
violation of domicile?
A: They are not liable. It is not entry against the
will. They did not conduct a search. The entry was
not done surreptitiously. It does not fall any of the
acts, therefore, they are not liable for violation of
domicile.
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Q: In the same problem, when they told the owner that they
were conducting a search for the stolen car stereo, the
owner of the house said, “No, you cannot conduct a search.
There is nothing stolen inside my house” but the police
officers proceeded with the search.
A: This time, they are liable for violation of
domicile because they made a search without the
previous consent of the owner – under the second
act of Art. 128
Q: What if in the same problem, the owner of the house told
the police officers, “No you cannot conduct a search, there
is nothing stolen inside my house” The police officers
obliged, they were going to leave the house, obeying the
order of the owner. However, on their way out, before they
could go out, they saw near the door, a table and on top of
it, there were drug paraphernalia, contraband. And so, they
seized and confiscated the contraband and then thereafter
they leave the house. Are they liable for violation of
domicile? Are the evidences confiscated admissible against
the owner?
A: They are not liable of violation of domicile.
When they were told not to conduct the search,
they did not conduct the search and they were
about to leave, therefore, not liable for violation of
domicile. But they confiscated the drug
paraphernalia that they saw. Yes, the confiscated
drug paraphernalia were admissible against the
owner because they were contraband. They are
illegal per se. And the police officers saw them
without conducting the search, they saw them
inadvertently. Even without conducting the search,
the police officers would see contraband, narcotics,
in their presence, in their plain view, they are
mandated by law to seize and confiscate the same
under the plain view doctrine. So in this case, these
drug paraphernalia where under the plain view and
therefore under the obligation to seize and
confiscate them and these are admissible as
evidence against the owner of the house.
Q: What if a police officer was conducting a surveillance of
X, a well-known drug pusher, so he was always within the
vicinity of the house of X. One time, it was the birthday of X,
the gate of the house was open, and the door of the house
was opened. The police officer disguised himself as one of
the guests and he entered the house together with the flow
of the guests. His intention was to conduct a search. He was
already about to conduct the search when the owner of the
house recognized him. The owner of the house came up to
him. “I know you, you are a police officer. Get out of my
house right now” and he left. Is he liable for violation of
domicile?
A: No, he is not liable for violation of domicile.
The entry was done surreptitiously, secretly,
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
candidly, he was in disguise. It was not against the
will of the owner because the gates and the door
were open. He did not conduct the search because
the owner saw him before he could do so. The entry
was done surreptitiously. He was discovered and
ordered to leave, and he left. Therefore, he is not
liable for violation of domicile
However, upon being discovered and ordered to
leave and stayed in the house.
Here, he is liable for violation of
domicile.
Under Articles 129 and 130, there is still violation of
domicile despite the public officer or employee is armed
with a search warrant.
ARTICLE129 – SEARCH WARRANTS MALICIOUSLY
OBTAINED AND ABUSE IN THE SERVICE OF THOSE
LEGALLY OBTAINED
Prohibited acts – violation of domicile (search
warrants maliciously obtained and abuse in the
service of those legally obtained) is committed
through:
I. By procuring a search warrant without just
cause
When a public officer or employee
conducts a search and the search
warrant was an illegally procured
search warrant. It was procured
without just cause.
SEARCH WARRANT – is an order in writing, issued in the
name of the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to search for
personal property described therein and to bring to court the
particular things to be seized.
Before a search warrant may be issue, the following are
the requisites to a valid search warrant:
1.) It is required that it is for one specific offense.
2.) There must be probable cause
3.) The said probable cause was determined by the issuing
judge personally through searching questions and
answers in writing, under oath or affirmation as the
testimony given by applicant of the said search warrant
or any witnesses he may produce.
4.) The applicant of the search warrant and his witnesses
must testify only as to facts personally known to them
5.) The said search warrant must specifically state the
place to be searched and the place to be seized.
- If any of these requisites is wanting, then the said
search warrant is illegally procured. It is procured
without just cause
- A search conducted by virtue of a search warrant
illegally procured without just cause is a kin to a search
without a search warrant.
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Q: What if the police officer was armed with a search
warrant, he procured the search warrant illegally without just
cause. The police had an enemy, B, then proceeded to a
judge to issue a search warrant testifying under oath, the he
is positive under his surveillance that B was in possession of
an unlicensed firearm inside his house. The judge believed
the police and issued a search warrant against B. The police
officer is now armed with a search warrant, and went to the
house of B and showed it to B. B, upon reading the search
warrant, knew it was maliciously procured, it was procured
without just cause. Should B allow the police officer to
conduct the search?
A: Yes. Even if the said search warrant was
procured without just cause, the police officer must
be allowed to enter and conduct the search,
because of the so-called, REGULARITY OF
PERFORMANCE OF DUTY on the part of the
judge in issuing the said search warrant. He is
armed with a search warrant issued by the judge
and therefore, he must allow him to enter his house
and to conduct his search.
What now would be the remedy of the owner of
the house?
The owner of the house has the
following remedies:
1.) He can file a motion to quash the said
warrant
2.) He can file a motion to suppress the
evidence that have been confiscated
inside the house.
In addition to these motions, he can file
a case of violation of domicile against
the said public officer who conducted
the search. Violation of domicile under
Art. 129 because he procured the said
search warrant without just cause.
So in other words, the said police
officers must be allowed to enter and
allowed to conduct the search and the
owner of the house shall have the
abovementioned remedies thereafter.
II. By exceeding his authority or by using
unnecessary severity in executing a search
warrant legally procured
A search warrant is valid only for a period of 10
days from the date of its issuance appearing on
the search warrant.
ILLUSTRATION:
A search warrant was dated Dec. 1, a police officer received
it on Dec 3. The search was conducted Dec. 13. The said
search warrant is already invalid.
When they conducted the said search on Dec.
13, they already exceeded the authority in the
said search warrant. Therefore, they are liable
of violation of domicile under Article 129.
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
Q: What if the said search warrant says that they could
conduct the search, anytime of the day. They conducted the
search at night time.
A: They are liable of violation of domicile under
Article 129 because they exceeded the authority in
the said search warrant.
A search warrant may only be conducted at day time. It may
only be implemented at day time, EXCEPTIONS:
When there is a specific order in the
search warrant stating that if can be
conducted at anytime of the day or night.
Absence of such order in the said search
warrant, a search warrant can only be
implemented at day time.
Q: What if a search warrant was issued against X, the place
to be search is located at 123 valentiono St. They police
went there. The house was owned not by X, but by Y. So
they look for the house of X, the house of X was 321
valentino St. They presented a search warrant to X. X said,
“you cannot conduct a search inside my house. The address
in the search warrant is 123 valentinost. and my address is
321 valentinost. Nevertheless, the officers conducted the
search and they found the illegal items inside the house. Are
the police officers liable of violation of domicile? Are the
confiscated admissible evidence against the owner?
A: The officers are liable for the violation of
domicile. When they conducted the said search, on
a house that has a different address from that said
search warrant, they exceeded their authority in the
said search warrant. The search warrant is so
worded, expressly, as to the thing or place to be
searched. The police officer cannot exercise
discretion. They have to follow what is stated in the
search warrant. The moment they did not follow
what is stated in the search warrant, then they
exceeded the authority.
In that case, when there is variance between what
is stated in the search warrant and the actual facts
of the case to be searched, the have to go back to
the judge that issued the said search warrant and
they have to ask or move for the amendment of the
said search warrant.
Q: What if the third punishable act under Art. 129 amounting
to the violation of domicile, when the public officer or
employee exercised excessive severity in the
implementation of the said search warrant.
What if a search warrant is issued against X, the police
officers went to the house of X, upon reaching the house of
X, they showed the warrant to X and he allowed them to
enter. The search warrant said that they could search for
dangerous drugs, particularly, shabu. In searching for
shabu, they turned upside down and deliberately destroyed
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each and every furniture and appliance inside the house of
X. When the wife of X saw this, she told the police officers to
stop, but she was slapped twice. she then suffered less
serious physical injuries. In deliberately destroying the
furniture and appliances of X, the public officers committed
malicious mischief. In slapping the wife, they committed less
serious physical injuries. What crime/crimes would you file
against the police officers?
A: You have to file 3 cases:
1. Violation of domicile – because they
exercised excessive severity in the
implementation of the said search warrant.
They need not destroy the property. They
need not slap the wife. All of these are
excess of the search warrant.
Therefore they should be filed in
violation of Art. 129, violation of
domicile, for exercising excessive
severity.
2. Malicious mischief – for destroying the
furniture and appliances
3. less serious physical injuries – for slapping
the wife
Are you going to file all 3 cases or is it absorbed and
must be file within the court?
Violation of domicile cannot absorb malicious
mischief nor less serious physical injuries.
Although in reality, these two are merely the
manifestations of the excess in the
implementation of the said search warrant, they
cannot be absorbed, they cannot be complex.
Under Art. 129, he expressly prohibits such
absorption and such complexity of crimes
Under Article 129, the liability for violation of
domicile shall be in addition to the liability
attaching to the offender for commission of any
other crime. Therefore, if aside from violation of
domicile, Another crime is committed by the
police officers, they had to be charged with all
these cases. Art. 129 prohibits the complexing
of a crime. It also prohibits the absorption of this
crime, therefore all 3 cases must be filed against
the said police officers.
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ARTICLE130 – SEARCHING DOMICILE WITHOUT
WITNESSES
Prohibited act:
I. By conducting a search in the absence of the
owner of the house, or any member of his
family, or two witnesses residing in the same
locality
ILLUSTRATION:
Q: What if under Article 130, violation of domicile is
committed when the search was conducted in the absence
of the owner of the house, or any member of his family or
two witnesses residing from the same locality.
A search warrant was issued against X and the police
officers went to the house of X. They showed the search
warrant to X and they were allowed inside to conduct the
search. In conducting the search, the search was witnessed
by 2 barangay tanods who came with them, who arrived with
them in the house of X. in the conduct of the search, they
told the owner of the house, X, that his wife and his two
children to remain in the sala while they conduct the search
inside the bedroom of X. In conducting the search in the
bedroom of X, the search was witnessed by 2 barangay
tanods and they found 2 plastic sachets of shabu underneath
the pillow inside the bedroom of X. Are the police officers
liable of violation of domicile under Article 130? Are the
evidence seized admissible against the owner?
A: The police officers are liable of violation of
domicile under Article 130.
Article 130 provides for an hierarchy of witnesses
who must be present in the conduct of the search.
The law says it must witnessed by the owner of the
house, it is only in the absence of the owner of the
house that it must be witnessed by any member of
his family. It is only in the absence of the owner of
the house or any member of his family that there
must be 2 witnesses residing from the same
locality.
In the problem, the owner of the house was
there, the members of his family were there but,
they were not allowed to witness the said
search. Therefore, the said search was
conducted in violation of Article 130 and any
evidence confiscated will be inadmissible
against the owner of the house for being fruits of
poisonous tree under the exclusionary rule in
Political Law
GALVANTE VS. CASIMIRO
The Supreme Court says,
“There is no such crime as illegal search. So, what
is prohibited only the searching of the dwelling under Article
129. But, in case of search under vehicle or any other places,
there is no such thing as illegal search. The remedy is to file
an action for damages, a civil action for damages.”
Dizon | Manalo | Navarez | Shyu | Tubio
ARTICLE131 – PROHIBITION, INTERRUPTION AND
DISSOLUTION OF PEACEFUL MEETINGS
This is committed by a public officer or employee
who commits any of the following acts:
I. By prohibiting or by interrupting,
dissolving, without legal ground, the
holding of a peaceful meeting, or by
dissolving the same. (any peaceful
meeting)
II. By hindering any person from joining any
lawful association or from attending any of
its meetings.
III. By 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.
For the crime to arise, it is necessary that the meeting
that was prevented, interrupted or dissolved must be a
peaceful meeting and it must be for any lawful purpose.
If the meeting is not a peaceful meeting or if the meeting
is not for lawful purpose, a public officer or employee
has all the rights to prevent, interrupt or dissolve the said
meeting.
This is in the exercise of the freedom of speech,
freedom of expression and freedom of assembly. However,
these 3 freedoms are not absolute. The Supreme Court has
enjoined the power of the State to regulate these meetings
through permits.
Before any of these peaceful meetings for a lawful purpose
may be held in a public place, there must be a permit coming
from the local authority of the place. The permit is only to
regulate the said meeting and not to prohibit it. Regulate as
to the time, place and to the date, so that the public would
not be in inconvenience.
ARTICLE132 – INTERRUPTION OF RELIGIOUS
WORSHIP
ELEMENTS:
1. This is committed by an offender who is again
a public officer or employee.
2. Then there is a religious ceremony or
manifestations of any religion are about to take
place or are going on.
3. That the offender prevents or disturbs the said
religious worship or religious ceremony.
If the offender makes us of violence or threats in
committing the crime, such use of violence or
threats would not constitute a separate and distinct
charge. Rather it is considered as an aggravating
or qualifying circumstance which would mean an
imposition of a higher penalty.
ILLUSTRATION:
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
Q: So what if there is a barrio fiesta and the priest is about
to celebrate the mass. Here comes X and he went to the
priest and point the gun to the priest. Then the priest was
about to celebrate the mass. At first the priest did not mind
him. But X intentionally pointed the gun to the head of the
priest and said, “I will kill you if you will celebrate the mass!”
So the priest did not celebrate the mass and all the faithful
went out of the church. What crime if any is committed by
X?
A: X is liable for interruption of religious
worship under Article 132. What about the fact
that he pointed a gun at the head of the priest?
Would it constitute a separate and distinct crime of
grave threats? It will not. The fact that threats were
employed in the commission of the crime would
only mean the penalty will be imposed in its
maximum period. It would be considered an
aggravating circumstance in committing the crime
of interruption of religious worship. BUT, IT WILL
NOT BRING ABOUT A SEPARATE AND
DISTINCT CHARGE FOR GRAVE THREATS OR
EVEN UNDER LIGHT THREATS.
ARTICLE133 – OFFENDING THE RELIGIOUS FEELINGS
ELEMENTS:
1. Committed by a public officer or employee or a
private individual.
The first element provides for the
offender. The offender may be a
public officer or employee or a private
individual. This is the only crime
under Title Two where the offender
can be a private individual. From
Article 124 to Article 132 under Title
Two, the offender can ONLY be a
public officer or employee. The only
exception is Article 133, offending the
religious feelings wherein the
offender can either be a public officer
or employee or a private individual.
The reason is, whoever may be the
offender, a public officer or employee
or a private individual, there will be
the same offense made on the
feelings of the faithful.
2. The said offender performs acts (1) in a place
devoted to religious worship, or (2) during the
celebration of any religious ceremony.
The second element requires that the
offender performs acts notoriously
offensive to the feelings of the faithful.
Acts notoriously offensive to the
feelings of the faithful are those acts
directed against their religious
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dogma, ritual, faith of the religion, or
mocks, ridicule, or scoffs of the said
dogma, ritual, faith or he attempts to
damage the object of veneration of a
certain religion. The law says
“notoriously offensive”, according to
Reyes, it means that it is offensive
to all kinds of religion. If the same
thing would be done to any religion
they will also be offended.
3. That the acts must be notoriously offensive to
the feelings of the faithful.
The third element requires that the
said acts notoriously offensive to the
feelings of the faithful can be
committed only (1) in a place devoted
to religious worship, or (2) during the
celebration of any religious
ceremony. The law uses the word “or”
therefore, if the act is done in a place
devoted to religious worship, it is not
necessary that there be a religious
ceremony ongoing. Because it can
either be with or without a religious
ceremony for as long as the place is
devoted for religious worship.
ILLUSTRATION:
Q: So what if X (A private individual) entered a catholic
church after that the tabernacle was opened and he took out
the chalice and inside the chalice was the host which was
being received by Catholics during communion. He poured
the host in the floor then he destroyed them, spit on them
and stepped on them. Is he liable under Article 133?
A: YES. The act he performed is notoriously
offensive to the feelings of the Catholics. If the
same act is done to the object of veneration of the
Buddhists or if the same act is done to the object of
veneration of the Muslims, they will also be
offended. Therefore, it is notoriously offensive to
the feelings of the faithful because even if it is
applied to other religions they would be offended
too. And it was done in a place devoted to religious
worship because it is done inside the church even
if no religious ceremony is ongoing.
Q: What if inside the PICC there was this art exhibit ongoing
and one artist, this was a controversy before right? There
was this picture of Jesus Christ and on the picture of Jesus
Christ he put a representation of a penis on his face. Is the
said artist liable under Article 133 offending the religious
feelings?
A: NO. He cannot be liable for offending
religious feelings under Article 133. Because
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
the PICC is not a place devoted for religious
worship and the art exhibit is not a celebration of a
religious ceremony. Therefore, since the last
element is not present even if it offends religious
feelings, he cannot be held liable under Article 133
for the absence of the 3rd element.
Dizon | Manalo | Navarez | Shyu | Tubio
TITLE THREE
CRIMES AGAINST PUBLIC ORDER (Articles
134 – 160)
ARTICLE134 - REBELLION OR INSURRECTION
ELEMENTS:
1. That there must be (a) public uprising, and (b)
taking arms against the Government
2. That the purpose of the uprising or movement
is either –
a. to remove from the allegiance to said
Government or its laws:
(1) the territory of the Philippines or
any part thereof; or
(2) any body of land, naval or other
armed forces; or
b. to deprive the Chief Executive or
Congress, wholly or partially, of any their
powers or prerogatives.
The essence or the gravamen of REBELLION is :
- The armed uprising against the Philippine Government.
So it is a public uprising with the taking up of arms. AN
ARMED PUBLIC UPRISING.
In case of Rebellion, it can be committed by any
person, or with a participation of the public.
THE LEADERS - Any person who
(a) promotes
(b) maintains or
(c) heads a rebellion or insurrection
THE PARTICIPANTS – Any person who
(a) participates
(b) executes the commands of others in rebellion or
insurrection
ARTICLE134-A – COUP D’ETAT
ELEMENTS:
1. That the offender is a person or persons belonging
to the military or police or holding any public office
or employment;
2. That it is committed by means of a swift attack
accompanied by violence, intimidation, threat,
strategy or stealth;
3. That the attack is directed against duly constituted
authorities of the Republic of the Philippines, or any
military camp or installation, communication
networks, public utilities or other facilities needed
for the exercise and continued possession of
power;
4. That the purpose of the attack is to seize or
diminish state power.
Committed by any person or persons belonging to the
military or police or holding any public office or
employment, with or without civilian support, carried out
singly or simultaneously anywhere in the Philippines for
the purpose of seizing or diminishing state power.
The essence of COUP D’ETAT is a swift attack
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

directed against the duly constituted authorities, with or absorbed in the crime of Rebellion. Therefore, only
without civilians. one charge of Rebellion should be charged against
the said offender.
REBELLION COUP D’ETAT
Essence – an Armed Essence – swift attack ENRILE v SALAZAR
public Uprising against the against the duly constituted Senator Juan Ponce Enrile was charged with the Following
Government authorities crimes:
Crime of the Masses, it It can be committed with or 1. charged with Rebellion
involves a multitude of without the participation of 2. charged with multipleMurder
people the public because it says, 3. Multiple frustrated murder
with or without civilian 4. violation of PD 1829 – obstruction of Justice because
support, provided it has he harbored or concealed then Colonel Gregorio
been committed by any Honasan.
member of the military, the
police or those holding
What did the Supreme Court say?
public office or
The Supreme Court said:
employment.
“only one charge and it should be rebellion. The
Purpose – Overthrow the Purpose – only to diminish
violation of PD 1829, the multiple murder and
Government of the state power, to destabilize
Philippines and replace it the government, not multiple frustrated murder are absorbed in
with the Government of the entirely to overthrow the Rebellion under the theory of absorption in
Rebels government. Rebellion.”
Can only be committed by Can be committed not only The Supreme Court further said that although
means of force and by means of force and violation of PD 1829 is a violation of a special penal
violence violence but also by means law, still if it is committed in furtherance of
of intimidation, threat,
strategy or stealth Rebellion, it can still be absorbed in the crime of
Rebellion.
THE LEADERS - Any person who
(a) leads ILLUSTRATION:
(b) directs or Q: What if a police officer was on his way to the office,
(c) command others to undertake a coup d’etat suddenly here comes a member of the NPA, he saw the
police officer and shot him. What crime is committed? is it
THE PARTICIPANTS – Any member of the Government Rebellion or murder?
who Rebellion can only be absorbed common
crime such as murder, if the commission
(a) participates
of the crimes was done in furtherance of
(b) executes the commands of others in undertaking a coup Rebellion. Therefore, it is necessary that
d’etat there must be evidence shown in what
way the said killing has promoted,
Any person who is not in the Government service who fostered the idea of the Rebels. Absent
(a) Participates any connection with the commission of the
(b) Supports common crime and the furtherance of
rebellion, the appropriate charge is only
(c) Finances
murder, homicide, arson or physical
(d) abets or injuries as the case maybe.
(e) aids in the undertaking of a coup d’etat
A: In the case, the proper charged would be
What if common crimes are committed in the course murder. There was no evidence showing in what
of Rebellion? way the said NPA has promoted the ideas of the
Common crimes committed in furtherance of,
Rebels in killing of the said police officer. Absent of
incident to or in connection with Rebellion are
considered as ABSORBED in the crime of that evidence, it would be a charge of murder and
Rebellion – known as the THEORY OF not rebellion.
ABSORPTION IN REBELLION. Rebellion is a continuing crime. Therefore, these
NPA who rebelled against the Government, to
THEORY OF ABSORPTION IN REBELLION overthrow the Government, that one time uprising
Whenever in the course of committing rebellion, is sufficient, they are already considered as rebels
murder, homicide, arson, physical injuries, other because it is a continuing offense.
common crimes are committed, and these common
crimes are in furtherance to, incident to, in
connection with Rebellion is considered as

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
GONZALES v ABAYA
Senator Trillanes and company was charged with 2 crimes,
coup d’etat in the RTC of Makati and the violation of articles
of war, particularly acts of unbecoming of an officer and a
gentleman filed before the military court. While the case was
pending in the RTC of Makati, the lawyer filed a petition, a
motion, saying that the violation of the articles of war should
be absorbed by the case filed before the RTC of Makati. Can
Coup d’etat absorb the violations of article of war?
The Supreme Court ruled in the NEGATIVE.
According to the Supreme Court, for the theory
of absorption to apply, it is necessary that both
cases must be heard or may be heard before the
same civilian court.
In this case, the coup d’etat must be heard in a
civilian court, RTC of Makati, whereas the
violations of the articles of war can be heard only
before a military court. Therefore, one cannot
absorb the other.
Second reasoning given by the Supreme Court,
for the theory to absorption to apply, it is
necessary that both crimes are punished by the
same penal statute
Third reasoning, violation of the articles of war is
sui generis. It is a kind of its own. Nothing
compares to it. Therefore, it cannot be absorbed
by any other crime.
ARTICLE136 – CONSPIRACY AND PROPOSAL TO
COMMIT COUP D’ETAT, REBELLION OR
INSURRECTION
There is CONSPIRACY TO COMMIT
REBELLION when two or more persons come into
an agreement concerning the commission of
rebellion (to rise publicly and take arms against the
Government to any of the purposes of rebellion)
and decide to commit it.
There is PROPOSAL TO COMMIT REBELLION
when a person who decides to commit rebellion
proposes its execution to another person it is
necessary that the other person would not agree, if
that person agree, then it is already conspiracy to
commit rebellion
Conspiracy is a bilateral act which involves two or
more persons, whereas proposal is a unilateral act
only one person decides to commit the crime and
he proposes its execution to another person.
There is a conspiracy to commit coup d’etat the same
way of committing it. Also the proposal to commit coup
d’etat.
ARTICLE138 – INCITING TO REBELLION OR
INSURRECTION
Inciting to Rebellion is a crime under the Revised Penal
Code.
ELEMENTS:
1. It is committed by any person who does not take up
arms or is not in open hostility with the Government
2. he incites others to uprise for any of the purposes
of rebellion (incite others to the execution of any of
the acts of rebellion)
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3. by means of speeches, proclamations, writings,
emblems, banners or other representations tending
to the same end.
There is NO SUCH CRIME AS INCITING TO COUP
D’ETAT.
SEDITION (ARTICLE 139)
ELEMENTS:
1. That the offender rise (1) publicly, and (2)
tumultuously;
2. That they employ force, intimidation or other means
outside of legal methods;
3. That the offenders employ any of those means to
attain any of the following objectives:
a. To prevent the promulgation or execution
of any law or the holding of any popular
election
b. To prevent the National Government, or
any provincial or municipal government,
or any public officer thereof from freely
exercising its or his functions, or prevents
the execution of any administrative order;
c. To inflict any act of hate or revenge upon
the person or property of any public officer
or employee;
d. To commit, for any political or social end,
any act of hate or revenge against private
persons or any social class; and
e. 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
There is a public uprising again but no taking up of
arms but it is done tumultuously by means of force,
intimidation or any other means outside the legal
methods.
Therefore, based on the objects of sedition, the
purposes of sedition can either be political in nature or
social in nature.
The purpose of sedition is not to overthrow the
government but to go against what the government
wants to implement. To go against a new law, an
administrative order or public officer or employee.
It is a disturbance, a commotion against the lawful
command of the authority.
The rallies that you see everyday, the rallies
against a new law to be implemented, they are
considered as ordinary protest or rallies, but the
moment they are carried outside of legal methods,
by means of force and violence, they will become
to be a seditious act.
So, sedition is like any other rally, it only becomes
seditious because there is the public uprising, done
tumultuously, by means of force, violation or any other
means outside of the legal method.
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REBELLION SEDITION
Both have a public uprising
Objective – Political in Objective – can either be
nature Political or social in nature
To overthrow the
Government and to replace
the it with the Government
of the Rebels
ARTICLE141 – CONSPIRACY TO COMMIT SEDITION
There is a crime conspiracy to commit sedition but
not proposal to commit sedition. A proposal to
commit sedition is not a punishable act under the
RPC.
ARTICLE142 – INCITING TO SEDITION
ELEMENTS:
1. The offender is not a participant (does not take
direct part) in the crime of sedition
2. He incites others to uprise for any of the purposes
of sedition
3. By means of speeches, proclamations, writings,
emblems, cartoon, banners, or other
representation tending to the same end.
Inciting to Rebellion or Inciting to Sedition can only
be committed by a person who is not a participant
in the Rebellion or the Sedition, because if he is a
participant in the Rebellion or Sedition, the
appropriate charge is Rebellion or Sedition as the
case may be. Not merely inciting to Rebellion or
Sedition.
Inciting to Sedition is committed not only by inciting
others for any of the purposes of sedition. Different
acts of inciting to sedition:
I. Inciting others to the accomplishment of any of
the acts which constitute sedition by means of
speeches, proclamations, writings, emblems,
etc.
II. Uttering seditious words or speeches which
tend to disturb the public peace
III. Writing, publishing or circulating scurrilous
libels against the Government, or any of the
duly constituted authorities thereof, which tend
to disturb the public peace.
USE OF UNLICENSED FIREARM (PD 1866 as amended
by RA 8294 otherwise known as the laws on
illegal/unlawful possession, manufacture, dealing in,
acquisition or disposition of firearms, ammunition or
explosives or instruments used in the manufacture of
firearms, ammunition or explosives)
See: People vs. Ladjaalam and Celino Sr. vs. People
Under Section 1 – If the use of an unlicensed
firearm is in furtherance of, incident to, or in
connection with the crime of rebellion or sedition, or
attempted coup d’état, such use of unlicensed
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firearm shall be absorbed in the crime of rebellion,
sedition or attempted coup d’état.
Therefore, the use of unlicensed firearm in case of
rebellion or sedition, or attempted coup d’état will
not bring about a separate or distinct charge. There
is only one crime that is rebellion or sedition, or
attempted coup d’état. The use of unlicensed
firearm is not even an aggravating circumstance. It
is absorbed in the crime of rebellion or sedition, or
attempted coup d’état.
Under the same Section 1 of PD 1866 as amended
by RA 8294, if the use of an unlicensed firearm is
in the crime of homicide or murder, as the case may
be, the use of unlicensed firearm shall be
considered as an aggravating circumstance. So in
the law, it is an AGGRAVATING
CIRCUMSTANCE.
WHAT KIND OF AGGRAVATING
CIRCUMSTANCE?
As decided by the Supreme Court in number
of cases, it is a SPECIAL AGGRAVATING
CIRCUMSTANCE which cannot be offset by
any mitigating circumstance. The Supreme
Court also held that the use of the word
“homicide or murder” under Section 1 is in its
generic sense, therefore, whatever be the
kind of killing for as long as the unlicensed
firearm is used, such use of unlicensed
firearm is considered as a SPECIAL
AGGRAVATING CIRCUMSTANCE.
ILLUSTRATION:
Q: So if a son had an argument with his father, in the course
of the argument with his father, the son killed the father, the
firearm was recovered. What crime or crimes would you file
against the son?
A: The son is liable of the crime ofPARRICIDE,
for having killed his own father. The use of
unlicensed firearm shall be considered as a
SPECIAL AGGRAVATING CIRCUMSTANCE.
Because as held by the Supreme Court, the use of
the word “murder” is in its generic sense, therefore
it includes any kind wherein the imposable penalty
is RECLUSION PERPETUA TO DEATH such as
Parricide.
Under Section 1 of PD 1866 as amended, it also provided
that a person can only be held liable of illegal possession of
unlicensed firearm provided that no other crime was
committed by the person arrested. It is necessary that no
other crime was committed by the person arrested.
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PEOPLE VS. LADJAALAM
The police officers armed with a warrant of arrest
went to the house of WalpanLadjaalam to effect the
warrant of arrest. WalpanLadjaalam, upon seeing
the police officers, fired shots at the officers. Hence,
he was charged with direct assault with multiple
attempted homicide. Aside from that, he was also
charged with illegal possession of unlicensed
firearms. He was convicted of both crimes before
the Regional Trial Court. On appeal before the
Supreme Court, SC said the illegal possession of
firearms case should be dismissed. He should be
acquitted in the said case because he committed
another crime, and that is, DIRECT ASSAULT
WITH MULTIPLE ATTEMPTED HOMICIDE.
What about in the case of CELINO, SR. VS. PEOPLE?
In this case, it was election time, there was a
COMELEC gun ban. A person was found in
possession of an unlicensed firearm. Arrested, he
was charged of 2 crimes: (1) violation of the
COMELEC gun ban, and (2) illegal possession of
unlicensed firearms. During the arraignment for the
violation of the COMELEC gun ban, he pleaded not
guilty. However, during the arraignment for illegal
possession of an unlicensed firearm, he filed a
motion to quash the information. According to him,
he cannot be charged of illegal possession of an
unlicensed firearm because the law says that you
can only be charged of illegal possession of an
unlicensed firearm provided that no other crime is
committed by the person arrested. He said here, he
committed violation of COMELEC gun ban,
therefore, he can no longer be liable for violation of
PD 1866 that is Illegal Possession of Unlicensed
Firearm.
IS HIS CONTENTION CORRECT?
His contention is wrong because according
to the Supreme Court, when the law says
“provided that no other crime is committed by
the person arrested”, the word “committed”
means that there is already a final
determination of guilt – a final conviction of
guilt based on a successful prosecution or a
judicial admission. Therefore, the word
“committed” means he has already been held
guilty beyond reasonable doubt a final
judgment.
In the case of CELINO SR., he was not yet convicted. He
was only being prosecuted. He was only being charged of
illegal possession of unlicensed firearm. Therefore, both
cases can proceed. He can be charged both of illegal
possession of unlicensed firearms and violation of
COMELEC gun ban. However, the moment he is convicted
Dizon | Manalo | Navarez | Shyu | Tubio
of violation of COMELEC gun ban, he should be acquitted of
illegal possession of unlicensed firearm, because this time,
the law says provided that no other crime is committed by
the person arrested. Therefore, a final conviction is
necessary before the illegal possession of unlicensed
firearm may be dismissed or he may be acquitted of the
same. So that is the relation of PD 1866 to sedition, rebellion
and coup d’état.
ARTICLE143 – ACTS TENDING TO PREVENT THE
MEETING OF THE ASSEMBLY AND SIMILAR BODIES
Punishes acts preventing the meeting of Congress
The crime is committed if there is a projected or
actual meeting of the Congress and the offender,
by means of force or fraud, prevents such meeting
The offender here is any person: he may be a
private individual, public officer or employee
It is necessary that the offender prevents the
meeting of the Congress or any of its committees,
or constitutional committees or any provincial city
or municipal board.
ILLUSTRATION:
Q: So what if there is a meeting of the Sangguniang
Panlungsod. It was being presided by the Vice Mayor as the
presiding officer of the city council. During the session of the
SangguniangPanlungsod, here comes the mayor together
with some police officers. They entered the session of and
disturbed and prevented the said meeting by force. What
crime, if any, was committed?
A: It is the violation of Article 143 – ACTS
TENDING TO PREVENT THE MEETING OF
CONGRESS AND SIMILAR BODIES.
ARTICLE144 – DISTURBANCE OF PROCEEDINGS
Punishes disturbance of proceedings
In disturbance of proceedings, there is a meeting of
Congress or of any of its committees or
subcommittees, constitutional commissions or
committees or divisions thereof, or of any provincial
board or city or municipal council or board
The offender either disturbs any of such
proceedings or he behaves while in the presence
of such proceedings in such a manner as to
interrupt the proceedings or impair the respect due
it.
So here, it is necessary that the offender, who was
present in the meeting, either he disturbs the said
proceeding, or while being there, he performed an
act which impair the respect due to them or which
interrupted the said proceeding
ILLUSTRATION:
Q: The FREEDOM OF INFORMATION BILLwas on the
committee level. It was votation time. On the right side of the
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
said place or meeting, there were some observers or people
who were coming from the media. On the left side, there
were ordinary people who do not agree on the freedom of
information bill. It was time to vote for the passage of
Freedom of Information bill, the members of the committee
were voting when suddenly some members of the media
immediately pulled out a placard and shouted: “YES TO
FREEDOM TO INFORMATION BILL!”Are they liable of any
crime?
A: YES. They are liable of disturbance of
proceedings under Article 144. Because while in
the presence of the said meeting, they behaved in
such a manner as to interrupt the proceedings, or
impair the respect due it.
ARTICLE145 – VIOLATION OF PARLIAMENTARY
IMMUNITY
Punishes violation of parliamentary immunity
There are TWO (2) ACTS PUNISHED IN
VIOLATION OF PARLIAMENTARY IMMUNITY:
1. Penalty: Prision Mayor – committed
by any person who by means of
force, intimidation, fraud or threat, or
any other means and by said means,
he tried to prevent any member of the
Congress either from attending any
meeting of the Congress or its
committees or subcommittees,
constitutional commissions or
committees or divisions thereof , from
expressing his opinions or casting his
vote
can be committed by
anyone (private
individual, public officer
or employee)
2. Penalty: PrisionCorreccional – can
only be committed by a public officer
or employee who shall, while the
Congress is in regular or special
session, arrest or search any
member thereof, except in case such
member has committed a crime
punishable under this Code by a
penalty higher than prision mayor.
Offender should be
only a public officer or
employee and not any
individual because any
individual cannot make
a search or arrest a
member of the
Congress
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It is necessary that at
the time of the arrest,
the member of
Congress, the
Congress must be in its
regular or special
session.
Likewise, it is
necessary that the said
member of Congress
has committed a crime
which is not higher than
Prision Mayor.
ILLUSTRATION:
Q: How about in the case of Panfilo Lacson?
A: The case against Sen. Lacson was fortunately
dismissed by the Court of Appeals. But let us say,
it is not dismissed by the Court of Appeals, he was
being charged of double murder – Dacer-Corbito
double murder slay. He went into hiding. Let us say
that he made his appearance. Can he be arrested
even if the Congress is in regular or special
session? YES. Because the crime committed by
him is punishable by a crime committer higher than
prision mayor. It is punishable by reclusion
perpetua. Therefore, had it not been dismissed by
Congress and he apparently appeared and the
Congress is in regular or special session, he could
be arrested.
Q: What if a Congressman is charged with the crime of libel
before the RTC. The RTC issued a warrant of arrest against
the Congressman. The police officers armed with a warrant
of arrest went inside the walls of Congress and they arrested
the said Congressman. Are the police officers liable under
this Article?
A:YES, they are liable for violation of
parliamentary immunity under the second.
Because at the time the Congress is in its regular
session and they arrested the said Congressman,
Libel under Article 355 is punishable only by Prision
Correcional in its minimum and medium period,
therefore it is below Prision Mayor, hence, the
Congressman cannot be arrested while the
Congress is in its regular or special session.
Q: What if Congressman A is charged with the crime of
attempted homicide. The fiscal found probable cause, the
case was filed in court. The court agrees with the fiscal and
a warrant of arrest was issued against Congressman A. The
warrant of arrest was issued by the judge on December 24,
the police officers had possession of the said warrant of
arrest on December 25, on Christmas Day. While
Congressman was inside his house, the police officers
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arrived and arrested the said Congressman for having been
charged of the crime of Attempted Homicide. The penalty for
Attempted Homicide is Prision Correcional because under
Article 249, the penalty for Homicide is Reclusion Temporal
and the attempted is two degrees lower, one degree is
Prision Mayor, two degrees lower is Prision Correcional,
therefore, the penalty to be imposed in this Attempted
Homicide is Prision Correcional. So the police officers armed
with a warrant of arrest went inside the house of the
Congressman and arrested him on Christmas Day,
December 25, are the police officers liable for violating
parliamentary immunity under Article 145?
A:YES, they are liable for violation of
Parliamentary Immunity.Because during
Christmas break or during Holy week break or any
other kind of break, Congress is still in its regular
session. Because as stated in Political Law, in
Constitution, when does Congress start? 4th
Monday of July, that is when the President states
his SONA. When does Congress ends? 30 days
before the start of Congress. Therefore, during
Christmas break or during Holy week break or any
other break, the Congress is still in its regular
session. Any arrest of a member of Congress
during this time, if the said member of Congress
has not committed a crime where a penalty is
higher than Prision Mayor, shall be punished as
violation parliamentary immunity under Article 145.
ARTICLE146 – ILLEGAL ASSEMBLY
There are 2 KINDS OF ILLEGAL ASSEMBLY:
I. Any meeting attended by armed persons for
the purpose of committing any of the crimes
punishable under this Code
ELEMENTS:
1. That there be a meeting, a
gathering or group of
persons, whether in fixed
place or moving
2. The meeting is attended by
armed persons
3. The purpose of the meeting
is to9 commit any of the
crimes punishable under the
Code
II. Any meeting in which the audience, whether
armed or not, is incited to the commission of
the crime of treason, rebellion or insurrection,
sedition or assault upon a person in authority
or his agents
ELEMENTS:
1. There is a meeting, a
gathering or group of
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persons, whether in fixed
place or moving
2. The audience, whether
armed or not, is incited to
the commission of the crime
of treason, rebellion, or
insurrection, sedition or
direct assault
The said gathering of
men or men, may or
may not be armed. It is
not required that they
be armed. Provided
that the audience
where incited to commit
treason, rebellion, or
insurrection, sedition or
assault upon a person
in authority or his
agents)
In case of illegal assembly, it is only necessary that
there be a meeting, the meeting must be attended by
armed persons, under the first mode. In here, when it
says “armed persons”, it is not required that all those
persons present in the meeting must be with arms. It
suffices that one, two or more, or some of them would
be with arms.
When we say “arms,” it does not only mean firearms,
it refers to any things, knives, stones, anything which
can cause violence or injury to another person.
It is necessary however, that the purpose of the
meeting is unlawful – that is to commit any of the
crimes punishable under the RPC.
Under the second mode of committing illegal
assembly, again there is a meeting, and there is no
requisite that those in attendance must be armed,
therefore, they may or may not be with arms. But it is
requires for the crime to arise that the audience must
be incited to commit treason, rebellion, or
insurrection, sedition or assault upon a person in
authority or his agents. Otherwise, the crime will not
arise.
In case of illegal assembly, the organizers or leader
of the meeting will be criminally liable, as well as the
persons merely present in the said meeting.
Under Article 146, first paragraph, last sentence –
it is provided that persons who are merely present at
the meeting shall be punished by Arresto Mayor,
unless they are armed, the penalty shall be Prision
Correcional, therefore, whether you are armed or not,
you can be held criminally liable for illegal assembly,
it will only differ in the penalty.
o If you are armed - Prision Correcional
o Not armed - Arresto Mayor (lower)
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necessary that they must at least perform an overt

ARTICLE147 – ILLEGAL ASSOCIATIONS act directly connected to bank robbery. So here,
WHAT ARE ILLEGAL ASSOCIATIONS? they just merely conspired to commit robbery
1. Associations totally or partially organized for the without the performance of any overt act directly
purpose of committing any of the crimes punishable connected to robbery. Hence, they are not
under the Code criminally liable. What they did is only a preparatory
2. Associations totally or partially organized for some act not directly connected to robbery.
purpose contrary to public morals Q: Why not illegal assembly?
In case of illegal associations, it is necessary that A: Because in the problem, it is not mentioned that
there be a formation of a group, not merely a meeting the persons were armed. Also, the crime of bank
and in the said association, not only the members of robbery is not among the crimes mentioned in the
the association should be penalized, but also the second act.
founders, directors and president of the said Q: Why not illegal association?
association or organization should be held criminally A: Because what they did was only a mere
liable. meeting, it was not an organization or association.
- Therefore, they are not liable of any crime.
ILLEGAL ASSEMBLY ILLEGAL ASSOCIATION
the purpose of the LET US ADD FACTS TO THE PROBLEM.
the purpose will always
association may be for Q: Let us say A, B, and C gathered 20 men – 10 were armed
be a violation under the
purpose of committing and the other 10 were not armed. Again, they conspired and
RPC. Even under the
crimes violating the RPC or agreed to commit simultaneous bank robbery all over Metro
second mode – inciting to
even in violation of special Manila. After their agreement here comes the police officers,
commit treason, rebellion,
penal laws, provided that it the police officers arrested them. Of what crime or crimes
or insurrection, sedition
is in violation of special may the police officer file against them?
or assault upon a person
penal law, it must be A:They should be charged of illegal assembly
in authority or his agents
against public morals under the first act. They have the gathering of
Necessary that there is men and their purpose is to commit a crime
Not necessary that there be
an actual meeting or punishable under the RPC which is robbery and it
an actual meeting
assembly is attended by armed persons, even if only 10 were
Meeting and the Act of forming or organizing with arms, still it is considered as illegal assembly.
attendance at such and membership in the Because the law does not require a number as to
meeting are the acts association are the acts the persons who should be armed. So, all of them
punished punished should be held criminally liable.
A, B and C, as leaders or organizers of the said
ILLUSTRATION: meeting, are liable for illegal assembly. Those
Q: So what if A, B and C gathered 20 persons and proposed persons who are armed, the penalty is higher than
to them the idea of committing simultaneous bank robbery those who are not armed. Prision Correcional – if
all over Metro Manila, so they will commit robbery in 4 banks they are armed
simultaneously. So these 20 men agreed to the said Arresto Mayor – if they are not armed
commission of bank robbery, and after they have come to
the agreement, here comes the police, the police got a tip Q: What if A, B and C gathered 1000 men and women. Their
from an informer, the police arrived and they were all intention was to incite the people to uprise against the
arrested. What crime or crimes if any should they be charged government to overthrow the present administration. These
of? 1000 men and women arrived in the said designated place.
A:They could not be charged of any crime. These 1000 men and women were arranging the chairs
There is no such thing as conspiracy to commit when suddenly here comes the police officers who got a tip
robbery. Because in robbery, robbery is only a about the said meeting. The police officers immediately
mode of committing the crime, it is not a crime by arrested A, B and C and the 1000 men and women. What
itself, unlike in case of treason, rebellion, there is crime or crimes if any may these 1000 men and women be
such a crime of conspiracy to commit treason, charged of?
conspiracy to commit rebellion, and they are A:They have not committed any crime. It cannot
punished by such acts. There is no such crime as be under the first act of illegal assembly because
conspiracy to commit robbery. So here, conspiracy the said 1000 men and women were not armed. It
is a mere preparatory act which is not yet cannot be under the second act of illegal assembly,
punishable by law. For them to be punished, it is because for one to be liable under this act, note that

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
even if not all of them need not to be armed, it is
required that the audience must be incited to
commit treason, rebellion, or insurrection, sedition
or assault upon a person in authority or his agents.
Here the intention of A, B and C is to incite them to
commit rebellion, BUT there was no statement in
the problem that they were indeed incited to commit
rebellion. In fact, they were just arranging the
chairs, the meeting was only about to begin.
Therefore, they have not yet committed any crime.
Q: What if the jueteng lords of Southern Tagalog gathered,
they gathered in Batangas. So their purpose was to define
ways and means to propagate jueteng considering that the
government would not want to legalize jueteng, their
decision was define ways and means to propagate jueteng
by using minors, those 15 years of age or below as kubrador
in the case of jueteng, so that was the purpose of their
meeting. In the said meeting, they elected their would-be
president, vice president, treasurer, etc. So they formed an
organization, an association and they said that at the end of
the month, they would meet and define ways and means to
propagate jueteng. The police officers arrived and they were
all arrested. But they are not with arms, it is not mentioned
that any of them were with arms.
A:The crime committed is illegal association
under Article 147. It is an association totally and
partially organized for some purpose contrary to
public morals. Jueteng is in violation of PD 1602,
illegal gambling as amended and it is against public
morals because it has not yet been legalized by
law.
ARTICLE148 – DIRECT ASSAULT
The two forms in committing the crime of direct assault
under Article 148 are:
I. Without public uprising, by employing FORCE or
INTIMIDATION for the attainment of any of the
purposes enumerated defining the crimes of
rebellion and sedition.
The intention of the offender is to commit any
of the purposes of rebellion or sedition.
PURPOSES OF REBELLION:
1. To remove from the allegiance to the
Government or its laws:
(a) the territory of the
Philippines or any part
thereof; or
(b) 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.
PURPOSES OF SEDITION:
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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
officer thereof from freely exercising
its or his functions, or PREVENT the
execution of any administrative order;
3. To INFLICT any act of 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;
5. To DESPOIL, for any political or
social end, any person, municipality,
province, or the National Government
of all its property or any part thereof
NOTE: The law says that there is no
public uprising, therefore whenever there
is actual commission of rebellion or
sedition, direct assault can never be
committed because the element of direct
assault in whatever form is that there be
no public uprising, on the other hand, a
necessary element in the crime of sedition
or rebellion is there be public uprising.
ELEMENTS:
1. The offender employs force or intimidation
2. AIM of the offender is to attain any of the
purposes of the crime of rebellion or any
of the objects of the crime of sedition
3. There is no public uprising
II. Without public uprising, by ATTACKING, by
EMPLOYING FORCE, or by SERIOUSLY
INTIMIDATING or SERIOUSLY RESISTING any
person in authority or any of his agents, while in the
performance of official duties, or on the occasion of
such performance.
Most popular form of direct assault
ELEMENTS:
1. The offender
a. Makes an attack,
b. Employs force,
c. Makes a serious intimidation, or
d. Makes a serious resistance
If the offended party is a
person in authority, the attack
or the employment of force
need not be serious because
under Article 148, the mere act
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
of laying of hands in the person
in authority is already qualified
direct assault. Therefore, the
mere act of pushing a person in
authority is already qualified
direct assault because the
offender already laid hands
upon a person in authority.
Hence, it need not be serious.
However, if the offended party
is a mere agent of a person in
authority, it is necessary that
the employment of force must
be serious. The reason is that in
order to show defiance of law
against a mere agent of person
in authority, it is necessary that
the attack or force employed
must be serious in nature.
If what has been done is
intimidation or resistance, to
amount to direct assault, it must
always be serious whether the
offended party is a person in
authority or a mere agent of a
person in authority.
2. The second element requires that the
assault is against a person in authority or
an agent of a person in authority
Who are these so-calledpersons in
authority? (Art 152)
1. Any person directly vested
with jurisdiction, whether as
an individual or as a
member of some court or
government-owned and
controlled corporation,
board or commission
2. A barangay captain and a
barangay chairman
3. Teachers, professors, or
persons charged with the
supervision of public or duly
recognized private schools,
colleges or institutions
4. Lawyers while engaged in
their professional duties or
while in the act of their
professional duties
Who is an agent of a person in
authority? (Art 152, par 2)
A person who, by direct
provision of law, by election
or by appointment by
competent authority, is
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charged with the
maintenance of public order
and the protection and
security of life and property
(e.g. police officer,
councilors). Likewise, it is
stated that any person who
comes to the aid of a person
in authority is deemed an
agent of person in authority.
3. The third element provides that at the time
of the assault, the person in authority is
engaged in the performance of his official
duties or the attack was on occasion of
such performance of official duty.
Direct assault can be
committed whether the public
officer or employee.
Direct assault can be
committed whether the public
officer or agent of a person in
authority is in the engaged in
the performance of his official
duties or on occasion of such
performance.
If a person in authority or his
agent is engaged in the
performance of his official
duty at the time of the
assault, regardless of the
motive of the offender, direct
assault will always arise.
Whether there is a personal
vendetta, whether it is a
public reason or whatever
reason, there is always direct
assault. There is defiance of
authority because the person
in authority or his agent is
actually engaged in the
performance of official duty
But if the person in authority
or his agent is not engaged in
the performance of his official
duty at the time of the
assault, motive on the part of
offender becomes material.
You have to determine the
motive on the part of the
offender. If the motive on the
part of the offender is a
personal vendetta, the crime
committed is murder,
homicide, serious physical
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
injuries or less serious
physical injuries, as the case
may be. But if the motive is by
reason of the authorities’ past
performance of his official
duty, the crime committed is
still direct assault.
The phrase “on occasion of
such performance” means
that the said assault was by
reason of the past
performance of official duty.
So “on occasion” means it is
by reason of the past
performance of official duty.
4. The fourth element provides that the
offender knows him to be a person in
authority or an agent of a person in
authority. So it is that the offender knows
him to be a person in authority because
otherwise, he cannot be said that he
defied the law, he defied the authority. In
the first place, he didn’t know that the
person he is attacking is a person in
authority or an agent of a person in
authority.
5. The fifth element requires that there be no
public uprising.
QUALIFIED DIRECT ASSAULT
There are three circumstances which will qualify direct
assault:
1. When the assault is committed by means of a
weapon;
WEAPON - firearms, knives or any other
items which will inflict injury.
2. When the offender is a public officer or employee;
So when a public officer or employee attacks
a person in authority, it is always qualified
direct assault.
3. When the offender lays hands upon a person in
authority
Will only lie if the laying of hands is upon a
person in authority.
Any of these three circumstances will qualify direct assault.
NOTE: The first two qualifying circumstance affects both a
person in authority or agent of a person in authority.
However, the third qualifying circumstance (laying hands
upon a person in authority) will only lie if the offended party
is a person in authority. Mere laying of hands to an agent of
person in authority is not qualified. It will only qualify if the
laying of hands is upon a person in authority.
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COMPLEX CRIME OF DIRECT ASSAULT:
Whenever the crime of direct assault is committed, and there
is a resulting felony (e.g. death, physical injuries), you
always complex it.
Under Article 48, you should always complex it because from
a single act, two or more grave or less grave felonies had
resulted. Under Article 48, Book I, you have to complex it.
So it could be:
o Direct assault with Murder
o Direct assault with Homicide
o Direct assault with Serious Physical
Injuries
o Direct assault with Less Serious Physical
Injuries
But if the resulting felony is only SLIGHT
PHYSICAL INJURIES, you cannot complex it. It is
prohibited under Article 48 because:
1. It is only a light felony. Under Article 48, you
can only complex two or more grave or less
grave felonies but not a light felony.
2. Slight physical injury or light felony is
already absorbed in direct assault because
whenever you assault somebody, definitely,
somehow, any injury would happen to him.
That is why it is already absorbed in direct
assault.
ILLUSTRATION:
Q: What if the city mayor attended the flag ceremony. It was
a mandate. So there was this flag ceremony attended by the
city mayor. After the flag ceremony, the mayor went to the
platform and was making an announcement to the city hall
employees. Suddenly here comes X. X went near the mayor
and shot the mayor on the head. The mayor died. What
crime is committed by X?
A: QUALIFIED DIRECT ASSAULT WITH
MURDER. The city mayor was engaged in the
performance of his official duty at the time of the
assault therefore it is direct assault. Because the
city mayor was engaged in the performance of his
official duty regardless of the motive of X, even if it
is by mayor’s past performance of official duty or by
reason of personal vendetta, regardless of the
motive of X, the offender, since the mayor is
engaged in the performance of his official duty, it is
direct assault.
Now, the mayor died. Therefore there is a resulting
felony of murder because obviously there was
treachery; therefore, it is direct assault with murder.
Now, the offender made use of a weapon, he made
use of a pistol gun, a firearm which is a qualifying
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circumstance, therefore, the crime committed is
QUALIFIED DIRECT ASSAULT WITH MURDER.
(EXAM TIP: the corresponding explanation must be
complete—what is the qualifying circumstance,
what is direct assault, what is a complex crime)
Q: What if the city mayor has just attended a Sunday mass.
He and his wife and children were getting out of the church
when suddenly here comes X. X, onboard the motorcycle
went straight to the city mayor and fired at the head of the
city mayor. The city mayor died. It was found that X was a
former employee of the city hall, who was dismissed by the
city mayor because he engaged in an anomalous
transaction. What crime is committed by X?
A:QUALIFIED DIRECT ASSAULT WITH
MURDER.The city mayor was not engaged in the
performance of his official duty. Since the city
mayor was not engaged in the performance of his
official duty, he is a person in authority, you have to
know the reason, the motive of the offender.
The offender was a city hall employee who was
dismissed by the city mayor, therefore the motive
was by reason of the past performance of the said
person in authority. So it is by reason of the past
performance of his official duty, the attack, the firing
was done on occasion of such performance of
official duty therefore the crime committed is direct
assault.
The mayor died. Obviously there was treachery
therefore it is direct assault with murder.
The offender made use of a firearm, which is a
qualifying circumstance in direct assault therefore it
is QUALIFIED DIRECT ASSAULT WITH
MURDER.
Q: What if in the same problem, here comes X, the mayor
was coming out of the church, X shot the city mayor. Now X
happened to be a former gardener who was dismissed from
the service of the household because he performed a
wrongful act while gardening. Therefore his reason was a
personal vendetta. What crime is committed by X?
A: X committed a crime ofMURDER. Obviously,
there was treachery on the part of X.
It is not direct assault because the mayor was not
engaged in the performance of his official duty and
the reason behind the assault was personal
vendetta. Therefore it cannot be said that the attack
was on occasion of such performance of official
duty.
Q: What if the judge has just rendered judgment. After
rendering the judgment, after finding the accused guilty
beyond reasonable doubt, the accused got mad. He jumped
on the judge and he boxed the judge several times. The
court interpreter, the person nearest to the judge, came to
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the aid of the judge. This angered the accused. The accused
got mad at the court interpreter and he boxed the court
interpreter as well. Thereafter the security guards arrived
and took away the said accused. The judge suffered serious
physical injuries whereas the court interpreter suffered slight
physical injuries. What crime or crimes is/are committed by
the accused, first against the judge, and second against the
court interpreter?
A: As against the judge, the accused is liable of
the crime of QUALIFIED DIRECT ASSAULT
WITH SERIOUS PHYSICAL INJURIES. The judge
is a person in authority under Article 152. He was
engaged in the performance of his official duty at
the time of the assault therefore the crime
committed is direct assault. It has a resulting felony,
serious physical injuries; therefore it should be
direct assault with serious physical injuries. The
accused in boxing the judge, laid hands upon a
person in authority therefore it is QUALIFIED
DIRECT ASSAULT WITH SERIOUS PHYSICAL
INJURIES.
As against the court interpreter, the accused is
liable of the crime of DIRECT ASSAULT. At the
time the court interpreter came to the aid of a
person in authority, who was the victim of direct
assault. Note under Article 152, any person who
comes to the aid of a person in authority is deemed
an agent of a person in authority therefore, when
the court interpreter came to the aid of the said
judge, who was a person in authority, he became
an agent of a person in authority. And under Article
148, any attack on an agent of a person in authority
is direct assault. Therefore the crime committed is
direct assault. The said interpreter suffered slight
physical injury. You cannot complex it because it is
only a light felony. Therefore it is only direct assault
not complex. The said accused laid hands upon the
court interpreter, would you qualify it? No, because
he is mere agent of person in authority. Therefore
the crime committed is only direct assault.
ARTICLE149 – INDIRECT ASSAULT
Indirect assault can be committed only when a direct
assault is also committed
ELEMENTS:
1. An AGENT of a person in authority is the victim
of any of the forms of direct assault defined in
Article 148.
2. A person comes to the aid of such agent
3. Offender makes use of force or intimidation
upon such person coming to the aid of the
agent.
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Q: What if a police officer was manning the traffic and it was
a heavy traffic so the vehicles were stuck. What if one of the
owners of the vehicles got mad at the police officer and he
went straight to the police officer, who at the time has no
pistol, and boxed the police officer. While he was boxing a
police officer a pedestrian saw the incident .the pedestrian
came to the aid of the police officer. This angered the owner
of the vehicle so he, too, boxed the said pedestrian. The said
pedestrian suffered slight physical injuries while the police
officer suffered less serious physical injuries. What crime or
crimes is/are committed by the said owner of the vehicle
against:
a. The police officer
b. The pedestrian?
A: a. DIRECT ASSAULT WITH LESS SERIOUS
PHYSICAL INJURIES. The said owner of the
vehicle boxed the said police officer. The police
officer is an agent of a person in authority under
Article 152 because he was charged with the
maintenance of public order. The police officer is in
the actual performance of his official duty at the
time of the assault therefore the crime committed is
direct assault. There is also a resulting felony which
is less serious physical injuries, a less grave felony;
therefore we have to complex it, direct assault with
less serious physical injuries. The offender laid
hands upon the police officer, however, laying of
hands will not qualify because he is a mere agent
of person in authority; therefore the crime
committed against the police officer is direct assault
with less serious physical injuries.
(NOTE: an MMDA officer is also an agent of a
person in authority because he is charged with the
maintenance of public order and the protection and
security of life and property)
b. INDIRECT ASSAULT under Art 149. An agent
of a person in authority was the victim of direct
assault. A person came to his aid who is the
pedestrian. When the pedestrian came to the aid of
this agent of person in authority, he did not become
an agent of a person in authority under Art 152
because under Art 152, a person would only
become an agent of a person in authority if he came
to the aid of a person in authority. Here, the
pedestrian merely came to the aid of an agent of a
person in authority who is the police officer.
Therefore, when the pedestrian came to the aid of
the police officer, he did not become also an agent
of a person in authority; as such, the crime
committed is INDIRECT ASSAULT. When the
pedestrian came to the aid of the police officer,
force and intimidation were employed against him
so the crime committed by the owner of the vehicle
against the pedestrian is indirect assault.
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Are you going to complex it to the crime of
slight physical injuries?
No, because it is absorbed and it is only
a light felony.
Under Article 149, INDIRECT ASSAULT is committed if a
person in authority or an agent of a person in authority
is the victim of direct assault. Any person who came to his
aid and that person was employed with force or intimidation
by the offender.
Why is it in the given problem, when the person under
attacked is a person in authority and when someone
came to his aid, and that someone was also attacked,
the crime committed is direct assault against that
someone. But when the victim of direct assault is a
mere agent of a person in authority, and someone
came to his aid, and that someone was also attacked,
the crime is indirect assault.
The reason is that the Congress amended
Article 152 without correspondingly
amending Article 149.
Based on the amendment made by
Congress in Article 152, it is stated that
any person who comes to the aid of a
person in authority is deemed an agent of
person in authority. And if an agent of a
person in authority is attacked, such
attack is under Article 148 which is direct
assault and not indirect assault under
Article 149.
But if the victim of the said direct assault
is a mere agent of a person in authority,
and someone who comes to his aid will
not become an agent of a person in
authority; therefore when he is also
attacked, it will only be indirect assault
under Article 149.
In statcon, when there are two provisions which are
contrary, you reconcile. So to reconcile, Article 149
or indirect assault will only apply if the victim of
direct assault is a mere agent of person in authority
and someone came to his aid, and that someone
was also employed with force and intimidation.
ARTICLE150 – DISOBEDIENCE TO SUMMONS ISSUED
BY THE NATIONAL ASSEMBLY, ITS COMMITTEES OR
SUBCOMMITTTES, BY THE CONSTITUTIONAL
COMMISSIONS, ITS COMMITTEES, SUBCOMITTEES OR
DIVISIONS
Acts Punished:
I. By refusing, without legal excuse, to obey
summons issued by the Congress or any of its
extensions or any of its standing committees
or subcommittees, by the Constitutional
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Commissions, its committees, subcommittees
or any other body which has the power to issue
summons.
Under the first act, for the crime to arise,
it is necessary that the offender’s refusal
to obey the summons is without any legal
excuse. If there is a valid reason, a legal
excuse, why the offender didn’t attend
the said committee hearing of the
congress or why he failed to comply with
the said summons or any of the acts
under Art. 150; the crime will not arise.
II. By refusing to be sworn or placed under
affirmation while being before such legislative
or constitutional body or official.
Under the second act the public official
or the person was required to appear in
the said meeting and obey the summons
however, the moment he appeared in the
said meeting, he refused to be sworn to.
He does not want to be sworn to and he
refused to be placed under affirmation
before such legislative or constitutional
body. Art. 150 is still violated.
III. By refusing to answer any legal inquiry or to
produce any books, papers, documents, or
records in his possession, when required by
them to do so in the exercise of their functions.
IV. By refusing another from attending as a
witness in such legislative or constitutional
body.
Under the fourth act punished, the said
offender did not fail to attend in the
summons; he restrained another from
attending as a witness. He prevented
another person in attending as a witness
in such legislative or constitutional body
hearing.
V. By inducing disobedience to a summons or
refusal to be sworn by any such body or
official.
NOTE that Congress where it be the
House of Representatives or the Senate
has the power to issue summons because
they have the power to investigate that is
inquiry in aid of legislation. Whatever be
the findings in the said investigating body,
it will be used in the making of a bill, a
proposal. NOTE that they don’t have the
power to file a case so whatever be the
product of their investigation, they will give
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it either to the Ombudsman or to the DOJ.
It is upto the DOJ or to the Ombudsman to
file a case because the purpose of the
Senate or the HOR is only inquiry in aid of
legislation.
ILLUSTRATION:
Q: What if there is this committee hearing, an investigation
about anomalous transactions entered into by a former
officials of the DENR. While the said official received the
summons, he failed to appear because he was at St. Lukes.
He was confined because he was suffering from
hypertension. Can he be held liable under Art. 150?
A: He cannot be held liable because he has a legal
excuse to attend or to obey the summons issued by
the Congress. The moment that there is a legal
excuse, the crime will not arise BUT if his measure
is without any legal excuse NOTE that aside from
violation of Art. 150, he can also be held liable or
cited for contempt by the said committee of
Congress and usually when cited for contempt, he
is placed in detention in the Senate Blue Ribbon
Committee.
Q: He obeyed the summons, he appeared, he allowed
himself to be sworn in however, the moment that the
Senators asked him questions, and he refused to answer the
questions. He said: I invoke my right against self-
incrimination. When he was solely required to produce the
books which were confirmed to be in his possession; He
didn’t want to produce the said books because according to
him, the production of these books would incriminate
himself. Can he be held liable under Art. 150?
A: He cannot. If the answer to any of the questions
or if the conduction of the same will incriminate the
person in the said crime; he has the right not to do
so. Under the Constitution, No person can be
compelled to be a witness against himself and
asking him, requiring him, ordering him to produce
the books or to answer any questions which would
incriminate himself is akin to making him a witness
against himself and it is unconstitutional.
ARTICLE151 – RESISTANCE AND DISOBEDIENCE TO A
PERSON IN AUTHORITY OR THE AGENTS OF SUCH
PERSON
Punishes two acts:
I. RESISTANCE AND SERIOUS DISOBEDIENCE
(PAR 1)
ELEMENTS:
1. The person in authority or his agent
a. is engaged in the
performance of official duty;
or
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b. gives a lawful order to the
offender
2. Offender resists or seriously disobey
such person in authority or his agent
3. That such resistance or disobedience
will not amount to
a. direct assault (Art 148),
b. indirect assault (Art 149); or
c. disobedience to summons
issued by Congress
II. SIMPLE DISOBEDIENCE (PAR 2)
ELEMENTS:
1. An AGENT of a person in authority
a. is engaged in the performance
of official duty; or
b. gives a lawful order to the
offender
2. The offender disobeys such order of the
agent
3. Such disobedience is not serious in
nature
ILLUSTRATION:
Q: What if the mayor has a project, a cleaning act operation
in order to prevent dengue. So they were cleaning up the
canals. While the mayor was cleaning up the canals together
with other city hall employees, here comes Mang Pedro who
had taken beer and was a little tipsy. So the went there and
was shouting and making noise, disturbing the people who
were busy cleaning up the canals. And so the police officer
cleaning told Mang Pedro to go home because he was
disturbing the cleaning up operation. Mang Pedro, instead of
going home, merely sat nearby the canal being cleaned by
the people. What crime, if any, did Mang Pedro commit?
A: Mang Pedro committed SIMPLE
DISOBEDIENCE UNDER ARTICLE 151 par 2.
Article 151, second paragraph, simple
disobedience is committed when an agent of a
person in authority is engaged in the performance
of official duty or gives a lawful order to the
offender, that the offender disobeys and such
disobedience is not of serious nature. In the
problem, it was the police officer, an agent of a
person in authority, who gave the order to Mang
Pedro and Mang Pedro disobeyed him but such
disobedience was not serious in nature because he
merely sat nearby the canal; therefore there was no
showing that such disobedience is serious in nature
so the crime committed is simple disobedience.
Q: Is there direct assault with robbery? Let’s say that the city
mayor was assaulted and thereafter he took the watch of the
mayor.
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A: No, there is no such crime. The crime
committed is not direct assault with robbery. It is
already robbery with any resulting felony, if there is
one.
What if the original motive was to assault the city
mayor?
If the original motive is to assault the city mayor
and not to commit robbery, but the offender
took the watch, there will be two crimes
because the offender already performed two
acts.
If there are two separate and distinct crimes,
there shall be two information that will be filed
to the court. If it is a complex crime, only one
information is filed before the court.
If the intention is to rob, and in the occasion of
the said robbery, homicide, serious physical
injuries, rape, intentional mutilation, arson was
committed, the crime committed under Article
294 is robbery with homicide, robbery with
intentional mutilation, robbery with rape,
robbery with arson or robbery with serious
physical injuries.
If the original intention was to assault the city
mayor and thereafter he committed robbery,
there will be two acts. Because his intention
was to assault and thereafter he committed the
second act of taking away the personal
property of the city mayor.
In case of DIRECT ASSAULT WITH MURDER
or HOMICIDE, it is considered a complex
crime under Article 48 because based on the
single act performed, two or more grave or less
grave offense was committed. Because with
the single act of boxing, the offender
committed direct assault and serious/less
serious physical injuries.
ARTICLE152 – PERSONS IN AUTHORITHY AND
AGENTS OF PERSONS IN AUTHORITY
Q: Who are persons in authority?
A: The following are the persons in authority:
1. Municipal Mayors
2. Division Superintendent of schools
3. Public and private school teachers
4. Teacher-nurse
5. President of the sanitary division
6. Provincial Fiscal
7. Judges
8. Lawyers in actual performance of duties
9. Sangguniang Bayan member
10. Barangay Chairman
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Q: Who is an agent of a person in authority?
A: Those who are in charged with:
The maintenance of public order; and
The protection and security of life and
property
ARTICLE153 – TUMULTS AND OTHER DISTURBANCES
*Offender must be a participant.
Acts punished:
I. Causing any serious disturbances in a public
place, office or establishment;
For the said disturbance to be
considered as a violation of Art 153; it
is necessary that the said offender
deliberately intended to disturb the
said meeting or public place. It was a
planned intentional act.
II. Interrupting or disturbing performances,
functions or gatherings, or peaceful meetings,
if the act is not included in Arts. 131 and 132;
NOTE that there is a qualification
made by law provided that the said
interruption or disturbance of public
gatherings, functions and peaceful
meetings must not fall as a violation
under Art 131 or Art 132.
III. Making any outcry tending to incite rebellion or
sedition in any meeting, association or public
place.
IV. Displaying placards or emblems which
provoke a disturbance of public order in such
place;
Whether this making of an outcry or
the displaying of placards or
emblems, it is necessary that such
act of displaying placards or emblems
must be an unconscious outburst of
emotion. It must not be intentionally
calculated to incite people to rebel or
to commit sedition because
otherwise, the crime would be inciting
to rebellion or inciting to sedition.
V. Burying with pomp the body of a person who
has been legally executed.
When you say legally executed; it
means that the said person has
committed a heinous crime. The
penalty prescribed by law is death
and so he was killed by means of
lethal injection but at present
because of Republic Act No. 9346,
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we have no more death penalty.
Death Penalty is prohibited to be
imposed.
But in burying with pomp the body of
the person who has been legally
executed; the said person must be
legally executed because the said
person has committed a heinous
crime yet when he was buried he was
buried with such extravagance as if
as he is a hero, as if as the
government has committed a crime in
legally executing him therefore it
causes sympathy arising on the part
of the people hence, it was a
disturbance of public order.
If any of these prohibited acts
constituting violation of Art 153 is
committed by more than 3 persons
who are provided with arms or any
means of violence it is said to be
tumultuous therefore there must be at
least four persons who are armed or
provided with means of violence for it
to be considered as tumultuous.
SO WHERE LIES THE DIFFERENCE BETWEEN ART 153
AND ART 131 OR 132?
Article 153 punishes TUMULTS ANS OTHER
DISTURBANCES OF PUBLIC ORDER, Article 131
punishes PROHIBITION, INTERRUPTION AND
DISSOLUTION OF PEACEFUL MEETINGS, Article
132 punishes INTERRUPTING OF RELIGIOUS
WORSHIP
Articles 131 and 132 can only be committed by a
Public Officer. It cannot be committed by a private
individual whereas under Art 153, it can be
committed both by a Public Officer and a private
individual.
What if the offender is a public officer and he disturbs a
peaceful meeting. How would you distinguish if it is a
violation of Art 153 or a violation of Art 131?
First, In Art 131, the public officer must not be a
participant in the meeting that he disturb or
interrupted. He must be an outsider, a stranger in
the said meeting. On the other hand, in Art 153, the
said Public Officer must be a participant, one in
attendance in the said meeting.
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Second, in Art 131, the mere intention of the public
officer is to prevent a person from freely exercising
his freedom of speech and expression whereas in
Art 153, the intention of the offender is to disturb
public peace and tranquility.
ILLUSTRATION:
Q: What if since RH Bill was enacted into law, there was a
huge rally at the EDSA Shrine which was initiated by the
members of the CBCP. They were against this law and they
encouraged the people to file a case before the Supreme
Court questioning the constitutionality of the said law. At first,
the head of the CBCP spoke then after him another person,
a private individual spoke, the head of the organization
spoke and he kept on attacking and attacking the President.
He said that the President bribed the members of the
Congress in order to pass this bill so he kept on attacking
and attacking the President. One of the police officers, who
was assigned to maintain the peace and order in the place,
heard the attacks against the President. This Police Officer
was indebted to the President he owed his position to the
President. He went straight to the person talking against the
President and told him to stop. When he didn’t stop, the
Police Officer fired shots in the air and the people scampered
away and the peaceful meeting/gathering was dissolved/
interrupted. What crime was committed by the Police
Officer?
A: The crime committed by the Police Officer is
not Art 153 but Art 131.Because the distinctions
lie in this case. First, the said Public Officer, a
Police Officer is not a participant in the said
meeting. He is a stranger, an outsider in the said
meeting. Second, his only purpose is to prevent the
said person in freely exercising his freedom of
speech and expression, it is his right to express his
anger against the President yet the said person
prevented him in exercising such freedom of
Speech and expression therefore the Police Officer
is liable under Art 131 and not under Art 153.
For him to be liable under Art 153, let’s say that he
is a public officer, he is a participant in the said
meeting and while participating in the said meeting,
he interrupted the said meeting in order for him to
cause a disturbance of the said meeting. The crime
is Art 153.
Q: There was this peaceful gathering, let’s say a public
meeting, a peaceful meeting about the increase of fares of
the MRT and the LRT. One of the participants therein, one
of the persons therein went to the platform and took the mic
and then he incite the people, induced the people to go to
the streets, uprise, rebel against the government, to
overthrow the government. What crime was committed?
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A:The crime committed was inciting to
rebellion.
Q: What if, he was among the participants. The head of the
meeting, the Public Officer was discussing about the
increase of fares of the MRT and LRT. This person could no
longer control his emotions. Suddenly he stood up and he
said: “buwisit na gobyerno na ito naiinis na ako. Dapat na
tayong mag rebelled sa gobyerno walang ginawa kundi
increase ng taxes”. They go and rebel against the
government. What crime was committed?
A:Tumults and other disturbances of public
order. It is just an unconscious outburst of
emotions not an intentionally calculated to incite
people to rebel against the government.
ARTICLE154 – UNLAWFUL USE OF MEANS OF
PUBLICATION AND UNLAWFUL UTTERANCES
Acts punished:
I. By 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.
II. By encouraging disobedience to the law or to
the constituted authorities or by praising,
justifying ot extolling any act punished by law,
by the same means or by words, utterances or
speeches.
III. By maliciously publishing or causing to be
published any official resolution or document
without proper authority, or before they have
been published officially.
NOTE that in the third act there is the
word Malicious. The offender must
maliciously publish or cause to be
published any official resolution. If the
publication of the official resolution
without official authority or the
publication was not done maliciously,
there was no intent to cause damage,
it was not done maliciously. Art 154 is
not violated. It is necessary that the
said publication must be done
maliciously under the third act.
IV. By printing, publishing or distributing (or
causing the same) books, pamphlets,
periodicals, or leaflets which do not bear the
real printer’s name or which are classified as
anonymous.
It is necessary that any publication
has contained the real printer’s name.
It must have been anonymous. The
publisher, the printer, the author,
must be stated even at the bottom.
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Q: What if the Philippine Daily Inquirer has as its headline:
“KC Concepcion said..PioloPascual is gay.” So that is the
headline of the Philippine Daily Inquirer. It was posted. KC
never categorically stated that Piolo is gay, she only
impliedly stated it but she never categorically stated it. So
the Daily Inquirer published a false news and PioloPascual
filed a case in violation of Art 154 against the Philippine Daily
Inquirer. The Philippine Daily Inquirer knew that it is a false
news yet they still published it as news.
A: Art. 154 is not violated because whether or
notPiolo is gay it will not endanger public order. It
will not cause damage to the credit or interest of the
state.
Q: What if the headline of the Philippine Daily Inquirer said:
“Tomorrow, Megamall will be bombed from a very reliable
source.” That was the headline of the Philippine Daily
Inquirer. The Philippine Daily Inquirer later on learned that it
was false nevertheless; since it was already there they still
published it and distributed it. Can they be held liable under
Art 154?
A: Yes because the said news will endanger
public order. It can cause damage to the credit or
interest of the state. Imagine Megamall will be
bomb, no person will go to the said place, tourists
will not go to the said place therefore it will
endanger public order and can cause damage to
the interest of the state when the said newspaper
published it despite knowing that it was false news.
Art 154 is violated.
Q: What if members of the CBCP, they are against the RH
Law. They made leaflets, pamphlets and distributed it to all
persons in the church, in market.. Therein is stated: Anyone
who would obey or comply with the RH Bill which is a
Catholic will be ex-communicated. Can they be held liable of
Art 154?
A:Yes because they encouraged disobedience
to the law. It has been enacted into law and by
encouraging the people that they would be ex-
communicated if you will obey it, then you can be
held liable for unlawful use of means of publication.
ARTICLE155 – ALARMS AND SCANDALS
Acts punished:
I. Discharging any firearm, rocket, firecracker, or
other explosives within any town or public
place calculated to cause (which produces)
alarm or danger.
II. Instigating or taking an active part in any
charivari or other disorderly meeting offensive
to another or prejudicial to public tranquility.
Charivari includes a medley of
discordant voices, a mock serenade
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of discordant noises made on kettles,
tins, horns, etc. designed to annoy
and insult.
III. Disturbing the public peace while wandering
about at night or while engaged in any other
nocturnal amusement.
IV. Causing any disturbance or scandal in public
places while intoxicated or otherwise, provided
Art 153 is not applicable
*Note: As of now, those who are guilty of committing the
crime of Alarms and Scandals may apply for Probation (for
imprisonment of 6 years or below).
Those involving crimes against national security cannot
apply.
ILLUSTRATION:
Q: In a public park, there were so many people here comes
X. X went in the middle of the park and fired shots in the air.
The people were so afraid they scampered away. What
crime is committed?
A: Alarms and Scandals under Art 155. His act
can cause damage to public peace and tranquility.
Q: What if in the same problem, in a public park, there were
so many people and here comes X. X saw his enemy Y. He
took out his firearm, aiming his firearm at Y without any intent
to kill because he knew Y would not be killed and he
discharged the firearm. What crime is committed?
A: The crime committed is illegal discharged of
firearms under Art. 254 RPC.
Q: What if in the same public place, X saw his enemy Y. He
pulled out his firearm with intent to kill, he aimed his firearm
at Y, discharged the firearm but Y was not killed. What crime
was committed?
A: Attempted murder or Homicide as the case
may be.
In case of alarms and scandals, the only
intention of the offender is to cause
damage to public peace and tranquility
that is to cause alarm and danger. That is
his intention.
In Illegal Discharge of Firearms under Art
1254 his intention is to threaten the said
person or any other persons. He aimed
the firearm and discharges the firearm
pointing at a particular person absent:
intent to kill. There was no intent to kill, it
is illegal discharge of firearm.
But given in the same problem, he knows
his enemy, pointed the firearm at his
enemy but with intent to kill. He
discharged the firearm but his enemy was
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not killed. It is attempted homicide or
murder as the case may be. Since there is
an intent to kill on the part of the offender
even if the victim was not killed it is still in
the attempted stage.
Q: What if in the same problem, it was in a public place, X
went to the said place, he saw his enemy Y. He went near
Y, took out his gun and poked the gun at Y but did not
discharge the said gun. What crime is committed?
A:The crime committed is other light threats.
NOTE that under other light threats the offender
merely poked the firearm at the victim without
discharging or firing the firearm. If the firearm has
been discharged, 3 crimes may be committed
depending on the intent. It can be alarms and
scandals, illegal discharge of firearms or attempted
homicide or murder as the case may be.
Q: You have a neighbor, it was his birthday. They rented a
videoke and kept on singing along till 12mn. The guests
already left, the birthday celebrant was the only one left, it’s
already 1:30am and he’s still singing at the top of his voice
with the use of the mic. His neighbors cannot sleep because
of his ugly voice. Everyone in the neighborhood could hear
him and cannot sleep. Can he be held liable under Art 155
alarms and scandals?
A: Yes. He can be held liable under alarms and
scandals because his only intention that night is to
cause a disturbance of public peace and order.
Q: Let’s say a person was intoxicated. He was drunk. He
was on his way home. He was singing at the top of his voice.
Is he liable for alarms and scandals?
A: No because it is normal to sing at the top of his
voice.
Q: What if he saw this lead pipe (tubo) and upon seeing this
lead pipe, he would bang all the gates that he would pass
by. Is he liable for alarms and scandals?
A: Yes because his acts caused damage to public
peace and tranquility.
ARTICLE156 – DELIVERING PRISONERS FROM JAIL
ELEMENTS:
1. That there is a person confined in a jail or penal
establishment.
2. That the offender removes therefrom such persons,
or helps the escape of such person.
The PENALTY for the crime is QUALIFIED if violence
or intimidation has been used in the commission of the
crime also if bribery is used in delivering prisoners from
jail.
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Who is the offender?
The offender is any person. He can be a private
individual or a public officer or employee provided
that he is not the custodian of the said prisoner
because if the offender who helped in the escape
of the prisoner from jail is the custodian of the said
prisoner, the crime is under Art 223 Infidelity in the
custody of prisoners because the element of
breach of trust and confidence reposed on him by
the government.
Who is the prisoner being referred to in delivering
persons from jail?
He can be a detention prisoner or a prisoner
convicted by final judgment for as long as he is in a
jail or penal institution.
A detention prisoner is a prisoner who is
behind bars but the case against him is
ongoing either because the crime he
committed is a non-bailable offense and
evidence of guilt is strong or the crime he
committed is a bailable offense but he does not
have the enough funds to put up the required
bail.
The prisoners at the provincial jail, city jail,
municipal jail, they are merely detention
prisoners. They are not yet convicts. They are
only accused, suspects therefore they are
presumed innocent unless and until proven
that they’re guilty of the crime charged. They
are merely detention prisoners.
On the other hand, a prisoner that is
convicted by final judgment is one who has
been convicted by the lower court and who did
not appeal his conviction within the period to
perfect an appeal then the judgment becomes
final and executory. He has to serve the
sentence. Or he has been convicted then he
appealed to the higher court within the period
to perfect an appeal and the said higher court
affirmed the said conviction. The conviction will
now become final and executory so he is now
a prisoner convicted by final judgment.
Generally, they are those who are serving
sentence in Muntinlupa.
ILLUSTRATION:
Q: Let’s say A is a prisoner convicted by final judgment. He
is serving his sentence in Muntinlupa. B his friend visited
him. B was a rich man. He planned A’s escape on his
birthday. He did this by talking to the jail warden custodian.
B the friend gave the jail warden custodian P500,000.00. He
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gave bribe to the jail warden custodian to allow A his friend
to escape at that night. He also went to the guard at the
entrance gate of the New Bilibid Prison and gave the guard
P100,000.00, also to allow his friend to leave at that night.
That night, A escaped and left the penal institution. He went
to the house of another friend who harbored him and
concealed him despite the fact that he was an escapee from
a penal institution. What are the crimes committed by A (the
prisoner), B (the friend), jail warden custodian, the guard of
the penal institution, and the friend who harbored him?
A: A is liable of evasion of service of sentence
under Art 157. He is a prisoner convicted by final
judgment therefore he is liable for evasion of
service of sentence.
Q: What if he is not serving his sentence in Muntinlupa. Let’s
say he is just a detention prisoner. Can he be held liable for
evasion of service of sentence?
A: No. Evasion of service of sentence can only be
committed by a prisoner convicted by final judgment.
In the given problem, A is convicted by final
judgment therefore A is liable for evasion of
service of sentence under Art 157.
B the friend is liable under Art 156
Delivering prisoners from jail qualified by
the giving of bribe therefore his penalty will
be qualified because he gave bribe money
inorder to help in the escape of his friend. He
will not be liable for another crime of corruption
of public official because the giving of bribe is
considered clearly as a qualifying or as an
aggravating circumstance in delivering
prisoners from jail.
The jail warden custodian who received the
bribed money and allowed A’s escape is liable
under Art 223 infidelity in the custody of
prisoners. Aside from that, he is also liable
for direct bribery because in case of infidelity
in the custody of prisoners, the giving and
receiving of bribe is not a qualifying or
aggravating circumstance therefore the jail
warden custodian will be liable for 2 crimes;
Infidelity in the custody of prisoners and direct
bribery for having received the bribed money
in the amount of P500,000.00.
The guard at the entrance gate of the penal
institution will be liable for delivering
prisoners from jail. He is not the custodian
and he helped in the escape/removal of the
prisoner from jail. Therefore, he is liable for
delivering prisoners from jail. The fact that he
received bribed money will not make him liable
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of direct bribery because in delivering
prisoners from jail, it is only a qualifying
circumstance which will only increase the
imposable penalty.
The friend who harbored and concealed him
will be liable under PD 1829 that is
obstruction of justice. It is committed by any
person who willfully or deliberately obstructs or
impedes the investigation or the apprehension
of a criminal.
Why not an accessory?
o Because I did not mention in the problem
the crime committed by the prisoner. For
an accessory to the crime, it is necessary
that the crime committed by the prisoner
must be treason, parricide, murder,
attempt to take the life of the chief
executive or is known to be habitually
guilty of some other crime. I did not
mention the crime committed by the
prisoner. Therefore his liability is under
PD 1829 Obstruction of Justice.
ARTICLE157 – EVASION OF SERVICE OF SENTENCE
(Art 157)
ELEMENTS:
1. That the offender is a convict by final judgment.
2. That he is serving his sentence which consists in
deprivation of liberty.
3. That he evades the service of his sentence by
escaping during the term of his sentence.
Evasion of service of sentence can only be committed
by a person convicted by final judgment. It cannot be
committed by a mere detention prisoner.
PENALTY IS QUALIFIED if such evasion or escape takes
place:
1. By means of unlawful entry
2. By breaking doors, windows, gates, walls, roofs or
floors;
3. By using picklocks, false keys, disguise, deceit,
violence or intimidation; or
4. Through connivance with other convicts or
employees of the penal institution.
ILLUSTRATION:
Q: You often read in the newspapers, heard over the radios,
watch on TV, 5 prisoners escaped from the Caloocan city
jail, 10 prisoners escaped from Palawan Provincial Jail. Did
they commit evasion of service of sentence?
A: No. These persons did not commit evasion of
service of sentence under art 157 because they are
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
merely detention prisoners. For evasion of
sentence to arise, the prisoner who has escaped
must be a prisoner convicted by final judgment.
Under Art 157, the said prisoner the said prisoner
must be serving which involves deprivation of
liberty and he escapes during the service of his
sentence by evading the service of sentence.
The law says, it is a prisoner serving his sentence
which involves deprivation of liberty. It is necessary
that the sentence imposed on him must involve
deprivation of liberty either it is behind bars or he
has been convicted of a crime wherein the penalty
is destierro. Even if the penalty prescribed is
destierro, the moment he enters the place wherein
he is prohibited from entering in the judgment of the
court, he also committed evasion of service of
sentence.
Destierro under Art 27; Destierro is also a
penalty which involves deprivation of
liberty although partial not complete
deprivation of liberty because the offender
or the convict is not allowed to enter a
place designated in the judgment of the
court. The moment he enters the said
place, he commits evasion of service of
sentence.
ARTICLE158 – EVASION OF SERVICE OF SENTENCE
ON THE OCCASION OF DISORDERS,
CONFLAGRATIONS, EARTHQUAKES, OR OTHER
CALAMITIES (ART 158)
ELEMENTS:
1. That the offender is a convict by final judgment who
is confined in a penal institution.
2. That there is a disorder resulting from ----
a. Conflagration
b. Earthquake
c. Explosion
d. Similar catastrophe
e. Mutiny in which he has not participated
3. 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.
4. 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.
It is required under Art 158 that the prisoner is serving
his sentence in a penal institution.
In this kind of evasion of service of sentence under Art
158, the crime will arise not upon the act of leaving the
penal institution but upon the convict’s failure to
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return/to give himself to the proper authorities within 48
hours. That is only when the crime will arise.
ILLUSTRATION:
Q: What if there was this earthquake, X was a prisoner
convicted by final judgment. Everything was shaking and
because of the earthquake, X escaped the penal institution.
He went to the house of his mother. That night while
watching the television, he saw the president
announced/declared that the calamity had already
ceased/passed away. Within 48hrs he returned. What is the
effect on his criminal liability?
A:If the said convict escaped and returned to
the proper authorities within 48hrs; there shall
be a credit or a deduction from his sentence.
There is 1/5 deduction/credit from his sentence.
Under Art 98 this is special time allowance for
loyalty. He was too loyal to the government that
even if he already left the penal institution he still
returned; such kind of loyalty must be rewarded.
Q: What if 48 hrs had lapsed, still he did not return. What is
the effect of his criminal liability?
A:There will be an additional penalty imposed
on him. 1/5 on the basis of the remainder of his
sentence but note that it shall not exceed six
months.
Q: There was this earthquake, everything was shaking. He
just hid under the table. He did not leave the penal institution.
He was so loyal to the government that he did not even think
to leave. Will he be given credit?
A:No. Under Art 158 there is no credit to be
given to him. Under Art 98, there is no special time
allowance of loyalty for just hiding under the table
and not leaving the penal institution. (note: not
applicable now. 2/5 credit is to be applied now)
Q: Why those who are loyal to the government and did not
leave the penal institution be not given credit? Isn’t it unfair?
A: The reason is that prisoners are considered as
accountabilities of the government. It is the duty of
the government to protect the prisoners. In times of
calamities or public disorders, the state cannot
protect these prisoners therefore the State
encourages them to leave in order to protect
themselves. But important thing is that they show
their loyalty to the government hence they will
return.
ARTICLE159 – EVASION OF SERVICE OF SENTENCE
BY VIOLATION OF CONDITIONAL PARDON
ELEMENTS:
1. The offender was a convict
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

2. He was granted a conditional pardon by the Chief Who is a quasi-recidivist?

Executive A quasi-recidivist is any person who shall commit a
3. He violated any of the conditions of such pardon felony after having been convicted by final
judgment before serving his sentence or while
TWO KINDS OF PARDON: serving his sentence.
1. Absolute Pardon which totally extinguishes the
criminal liability Under Art 160 it is stated that the maximum penalty
2. Conditional Pardon which partially extinguishes prescribed by law shall be imposed therefore it is a
criminal liability. special aggravating circumstance.
Conditional Pardon is said to only partially Art 160 is a misplaced article because book 2 is about
extinguishes criminal liability because the said felonies and art 160 is a special aggravating
pardon is subject to strict terms and conditions. circumstance.
Therefore, there must be an acceptance in the
part of the prisoner granted pardon. The
moment he accepts the conditional pardon, it
means it is incumbent upon him to comply to
all of the strict conditions. The moment he
violate any of the terms and conditions he
commits evasion of service of sentence
because it shows that he just accepted the
conditional pardon so as to free himself from
taking place behind bars.

Is violation of conditional pardon a substantive

offense or not?
It depends. If you will look at Art 159, there are
2 situations. Under Art 159, if the penalty
remitted by the grant of pardon does not
exceed 6yrs, the moment he violates any of
the conditional pardon, there is a new penalty
imposed upon him that is prision correccional
minimum 6 months and 1 day to 2 years and 4
months. A new penalty is imposed on him
therefore in this case, violation of the
conditional pardon is a substantive offense
because a new penalty is imposed on him.
BUT on the second part of Art 159, if the
penalty remitted is more than 6 years; no new
penalty is imposed on him for having violated
the terms of the pardon. He is only required to
serve the remainder of the sentence. In this
case, violation of the conditional pardon is not
a substantive offense because there is no new
penalty imposed for the commission of the
crime.

ARTICLE160 – COMMISSION OF ANOTHER CRIME

DURING SERVICE OF PENALTY IMPOSED FOR
ANOTHER PREVIOUS OFFENSE
ELEMENTS:
1. The offender was already convicted by final
judgment of one offense.
2. He committed a new felony before beginning to
serve such sentence or while serving the same.

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST (Articles 161 –
189)
ARTICLE161 – COUNTERFEITING THE GREAT SEAL
OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS,
FORGING THE SIGNATURE OR STAMP OF THE CHIEF
EXECUTIVE
Acts punished:
I. Forging the Great Seal of the Government of the
Philippines.
II. Forging the signature of the President.
III. Forging the stamp of the President.
Art 161 punishes the person who forges the great seal
of the Philippines, signature of the chief executive and
forging the stamp of the chief executive.
Art 161 is the crime when the person is the one who
committed the forgery, but if the offender is not the one
who forges the great seal, signature but he knows that
the document contain a forge stamp, signature of the
President and despite such knowledge that it was a
forgery he makes use of the same, liability is under 162.
ARTICLE162 – USING FORGED SIGNATURE OR
COUNTERFEIT SEAL OR STAMP (Art 162)
ELEMENTS:
1. That the Great Seal of the Republic was
counterfeited or the signature or stamp of the Chief
Executive was forged by another person.
2. That the offender knew of the counterfeiting or
forgery.
3. That he used the counterfeit seal or forged
signature or stamp.
Art 162 punishes the person who, despite knowledge of
the forged signature, stamp or great seal of the Republic
of the Philippines still he makes use of the same
document.
ILLUSTRATION:
Q: In an official document, the signature of the President was
forged by A then it was given to B. B knew that it was a
forgery nevertheless he made use of the same. What crime
was committed?
A:A committed a crime under 161. And B
committed a crime under 162.
ARTICLE163 – MAKING AND IMPORTING AND
UTTERING FALSE COINS
ELEMENTS:
1. That there be false or counterfeited coins
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2. That the offender either made, imported or uttered
such coins.
3. That in case of uttering such false or counterfeited
coins, he connived with the counterfeiters or
importers
When is it committed?
A. Counterfeiting (imitation of false coins)
is committed by any person who shall imitate a
genuine and authentic coin making it appear
that it is a true, genuine, and authentic coin.
The offender copies the peculiar design of the
coin and makes a spurious one out of it.
B. Importing false coins is committed by any
person who shall bring into the Philippine ports
any false and counterfeited coins. It is not
necessary for the offender to be liable that he
shall circulate the false coins because there is
a third act of uttering false coins.
C. Uttering false coins is committed by any
person who shall circulate, give away to
another, pass from one person to another any
counterfeited or false coins.
In case of counterfeited or imitated false coins, it is not
necessary that the coins be the subject of counterfeiting
must be of legal tender. Even if the coin is not a gold
coin, if the offender copies or imitates or counterfeits the
peculiar design of the said coin; he becomes liable
under Art 163.
ILLUSTRATION:
Q: A is in possession of a coin which was of legal tender
during the time of Marcos in 1972. It was a proven genuine
coin. He copied the said coin and made a spurious one out
of it. Is he liable under Art 163?
A: Yes he is liable for making and importing and
uttering false coins under Article 163.
Q: What if while he was in possession of the said coin; he
took out a part of the metal content of the said coin. Can he
be liable for Mutilation of coins under Art 164?
A:No, he cannot because in Art 164 or mutilation
of coins, it is necessary that the coin subject of
mutilation must be of legal tender. It must be in
present currency because otherwise, it cannot be
said that the public has been deceived.
ARTICLE164 – MUTILATION OF COINS
Acts punished:
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I. Mutilating coins of the legal currency, with the
further requirement that there be intent to damage
or to defraud another.
II. Importing or uttering such mutilated coins, with the
further requirement that there must be connivance
with the mutilator or importer in case of uttering.
Mutilation is the act of taking off a part of the metal
content by filing it or substituting it for another metal of
inferior quality.
The offender gathers the metal dust that he has taken
off from the said coin.
While the offender took out a part of the metal coin, he
is in effect diminishing the intrinsic value of the said coin
therefore who would be given the said coin would be
deceived of the this crime hence a crime in violation of
public interest is committed.
ILLUSTRATION:
Q: There were 3 children/adults. They were playing kara-
krus. So they toss the coin, however before doing that, they
would scratch the coin on the steel therefore the metal
content of the coin is diminished. Can they be held liable
under Art 164?
A: No. because there was no intent to gather the
metal dust of the said coin.
Can they be held liable of any crime?
Yes. They can be held liable under PD
247
PD 247 punishes any person who willfully or knowingly
defaces, mutilates, tears, burns or destroys any
currency notes or coins issued by the
BangkoSentralngPilipinas.
In case of violation of PD 247 it is not required that there
is intent to mutilate on the part of the offender. It is not
required that the offender has the intent to gather the
metal dust of the coin although these are required under
Art 164.
Q: In a P 1000.00 bill, a person put his cell phone no. on it.
Is he liable under PD 247?
A: Yes he is liable under PD 247.
But PD 247 is akin to a dead law because no one has
been prosecuted by it.
ARTICLE165 – SELLING OF FALSE OR MUTILATED
COIN, WITHOUT CONNIVANCE
Acts punished:
I. 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,
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2. With intent to utter, and
3. Knowledge
Under the first act, the offender is in
possession of the false, mutilated,
counterfeited coin. It is another person
who counterfeited the coin. The offender
is only in possession of it but in order for
him to be held liable; he must have the
knowledge that the coin is counterfeited or
mutilated and despite having such
knowledge; he has the intent to utter,
circulate, pass away, to give away to
another the said coin.
II. Actually uttering such false or mutilated coin
knowing the same to be false or mutilated.
ELEMENTS:
1. Actually uttering, and
2. Knowledge.
In the second act it is the act of actually
circulating or uttering the counterfeited
coin despite knowledge that it is
counterfeited or mutilated.
ILLUSTRATION:
Q: What if A is under surveillance, reports came to the police
that he had been circulating false coins. A went to the bakery
store, he bought bread worth P 50.00. He gave the store
owner 5 P 10.00 counterfeited coins. Thereafter, after giving
the counterfeited coins, he immediately left. The police
arrived and A was gone and it was the owner of the store
who is left. The police officer asked the owner of the store to
open the cash bin. There they saw the 5 P 10.00 coins which
were counterfeited. They arrested the owner of the store. Is
the owner of the store liable under Art 165?
A:No he is not liable of selling of false coins or
mutilated coins, without connivance under Article 165.
First, he was caught in possession.
Was there possession?
Yes. The counterfeited coins were found
in his cash drawer. Possession does not
only mean physical or actual possession.
Possession means constructive
possession which means that the
counterfeited or mutilated coins are in his
control and custody. Therefore the first
element of possession is present.
Was there intent to utter the counterfeited coins on
the part of the said owner?
Yes. The fact that he placed it in the cash
drawer means he can use it to buy another
thing or as a change to the people who will
buy from his bakery therefore circulation
has a way from one person to another.
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Therefore the second element is also
present.
How about the third element of knowledge on his
part the coin was counterfeited?
The third element is absent evidently
based on the facts that the store owner
has no knowledge that the coins are
counterfeited. In fact he gave bread worth
P 50.00. He was also deceived. If he had
only known that the coins were
counterfeited, he would not have given
bread worth P 50.00.
Therefore, he may not be held liable
because also he is in possession, and he
has the intent to utter the coins; he does
not have the knowledge that the said
coins were counterfeited.
ARTICLE166 – FORGING TREASURY OR BANK NOTES
OR OTHER DOCUMENTS PAYABLE TO BEARER;
IMPORTING, AND UTTERING SUCH FALSE OR FORGED
NOTES AND DOCUMENTS
Acts punished:
I. Forging or falsification of treasury or bank
notes or other documents payable to bearer.
II. Importation of such false or forged obligations
or notes.
III. Uttering of such false or forged obligations or
notes in connivance with the forgers or
importers.
ARTICLE167 – COUNTERFEITING, IMPORTING, AND
UTTERING INSTRUMENTS NOT PAYABLE TO BEARER
ELEMENTS:
1. That there be an instrument payable to order
or other document of credit not payable to
bearer.
2. That the offender either forged, imported or
uttered such instrument.
3. That in case of uttering, he connived with the
forger or importer.
ARTICLE168 – ILLEGAL POSSESSION AND USE OF
FALSE TREASURY OR BANK NOTES AND OTHER
INSTRUMENTS OF CREDIT
ELEMENTS:
1. 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.
2. That the offender knows that any of those
instruments is forged or falsified.
3. That he performs any of these acts ----
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a. Using any of such forged or falsified
instruments; or
b. Possessing with intent to use any of
such forged or falsified instruments.
An instrument is payable to bearer when it can be
transferred by mere delivery.
e.g. Check payable to cash. Whoever is in
possession of the said check can come to
the bank. It can be transferred by mere
delivery.
On the other hand a check is payable to order where it
can be transferred by mere delivery when there is an
endorsement coming from the person named or
specified therein. It is an instrument payable to the order
of a specific person or his order.
e.g. Payable to the order of Charmaine.
This cannot be transferred from one
person to another without an order coming
from Charmaine.
ARTICLE169 – HOW FORGERY IS COMMITTED (Art 169)
1. By giving to a treasury or bank note or any
instrument payable to bearer or to order
mentioned therein, the appearance of a true
and genuine document.
2. By erasing, substituting, counterfeiting, or
altering by any means the figures, letters,
words, or sign contained therein.
If what has been falsified is a coin; you call it
counterfeiting.
If it is the stamp, seal or signature of the President;
you call it forging.
If it is treasury or bank notes; it is considered as
forging.
It is a document; you call it falsification.
FALSIFICATION (ART 170, 171, 172)
In case of FALSIFICATION, to amount to falsification, it
is necessary that the writing that is falsified must be a
document in a legal sense of the word – capable of
making rights and/or extinguishing an obligation.
Therefore, it must be complete in itself so that it would
be sufficient in evidence.
Falsification of mere forms does not amount to
falsification of a public document. Because the said
form is not yet complete in itself – it has no name, no
address – an unfilled-out/up form. It is not falsification.
ILLUSTRATION:
Q: So what if A was found outside the building of the LTO
office. He was carrying falsified unfilled-out/up forms of
driver’s license. It was distinct, it was falsified, it was not the
real driver’s license form. He was arrested by the NBI. Can
he be held liable for falsification of a public document?
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A: NO. Because what he is carrying is only an
unfilled-out form. It is not yet complete in itself. It is
not yet capable of creating rights or extinguishing
an obligation. It is not yet susceptible of evidence
of the facts stated thereon.
Q: So what crime if any was committed by A?
A: A merely committed violation of Article 176 – that
is mere possession of instrument or implements for
falsification, but not yet falsification of a public
document.
There 4 types of documents which may be falsified:
1. PUBLIC DOCUMENT – a document which is
issued by a notary public or competent public
official with the solemnities required by law
2. OFFICIAL DOCUMENT – a document issued by a
public official in the exercise of his official functions
3. COMMERCIAL DOCUMENT – any document
defined and regulated by the Code of Commerce or
any other mercantile law
4. PRIVATE DOCUMENT – a document, a deed or
instrument executed by a private person without
the intervention of the notary public of any other
person legally authorized, by which document
some disposition or agreement is proved,
evidenced or set forth
Is a public document distinct from an official
document?
All official documents are considered as
public documents, but not all public
documents are considered official
documents. Before a public document may be
considered as an official document, it is
necessary that it shall be issued by a public
officer in the exercise of his official functions.
There is a law that requires a public officer to
issue the said public document, then it
becomes an official document.
A PRIVATE DOCUMENT, one which has been
executed by a private person, if there is no intervention
of public official.
A PRIVATE DOCUMENT however, even though
executed by a private person without the intervention of
a notary public or a legally authorized person, can also
become a public document. That is when the said
private document is submitted to the public officer and it
becomes part of the public records. The moment the
said private document becomes part of the public
records, it is now a public document and when it is
issued and it is falsified, what is falsified is a public
document and no more a private document.
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It is necessary to distinguish the kind of document that
is being falsified - whether it is a public, official,
commercial or private because of the different effects.
If what has been falsified is a PUBLIC, OFFICIAL OR
COMMERCIAL DOCUMENT, damage or intent to
cause damage to the offended party or to any other
person is not an element.
On the other hand, if what has been falsified is a
PRIVATE DOCUMENT, for the crime to arise, it is
necessary that there must be damage or at least, intent
to cause damage to the private offended party or to any
other party.
If what has been falsified is a PUBLIC OR OFFICIAL
DOCUMENT, it is not necessary that there be damage
or intent to cause damage. Because a public document
– an official document - is presumed authentic and legal.
It is presumed to be “prima facie evidence” of the facts
stated therein. As such, the moment it is
falsified, the crime will immediately arise, without need
that there be damage on the part of the offended party.
Because in Falsification of a Public Document, what has
been violated is the PERVERSION OF TRUTH being
solemnly proclaimed by the said document. Hence
DAMAGE IS NOT AN ELEMENT.
ARTICLE171 – FALSIFICATION BY PUBLIC OFFICER,
EMPLOYEE OR NOTARY OR ECCLESIASTICAL
MINISTER
The first kind of falsification under Article 171, we have
the falsification committed by a public officer, employee
or notary public or an ecclesiastical minister.
ELEMENTS:
1. The offender is a public officer, employee, notary
public or an ecclesiastical minister.
2. He takes advantage of his official position.
The offender is said to have taken
advantage of his position or office when:
a. He has the duty to make or prepare
or to otherwise intervene in the
preparation of the document; or
b. He has the official custody of the
document which he falsifies
3. That the said offender falsifies a document by
committing any of the following modes stated
therein:
a. By counterfeiting or imitating any
handwriting, signature or rubric.
b. Causing it to appear that persons
have participated in any act or
proceeding when they did not in fact
so participate.
c. Attributing to persons who have
participated in an act or proceeding
statement other than those in fact
made by them
d. Making untruthful statements in a
narration of facts
e. Altering true dates
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f. Making any alteration or intercalation
in a genuine document which
changes its meaning
g. Issuing in authenticated form a
document purporting to be a copy of
any original document when no such
original exists or including in such a
copy a statement contrary to or
different from that of the genuine
original
h. Intercalating any instrument or note
relative to the issuance thereof in a
protocol, registry or official book.
4. 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 the
falsification may affect the civil status of persons.
EXPLANATIONS:
1. The offender is a public officer, employee, notary
public or an ecclesiastical minister.
If the offender is an ecclesiastical minister,
for him to be liable under Article 171, it is
necessary that the document that he
falsifies must affect the civil status of a
person.
If the document falsified by an
ecclesiastical minister will not affect the
civil status of a person, he is still liable for
falsification, but not under Art. 171, rather
under Art. 172.
So, a priest falsified the communion
certificates of one of the students/pupils
receiving the first communion, the crime
committed is falsification under Art. 172,
not under Art. 171 because a certificate of
communion will not affect the civil status
of the said child.
2. He takes advantage of his official position.
It requires that the offender takes
advantage of his official position.
The offender is said to have taken
advantage of his position or office when:
a. He has the duty to make or prepare
or to otherwise intervene in the
preparation of the document; or
b. He has the official custody of the
document which he falsifies
3. That the said offender falsifies a document by
committing any of the following modes stated
therein:
If you will look at Art. 171, it does not state
the kind of document that has been
falsified, it may not be stated because it
necessarily follows that the document
falsified is a public or official document
because the offender is public officer or
employee or notary public. Therefore
necessarily, the document being falsified
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in Art. 171 is a public official or official
document.
Art. 171 provides for the DIFFERENT ACTS OF
FALSIFICATION. These acts of falsification are also
applicable in Art. 172:
I. BY COUNTERFEITING OR IMITATING ANY
HANDWRITING, SIGNATURE OR RUBRIC.
So what is COUNTERFEITING?
The offender is said to have counterfeited
a signature, handwriting or rubric if he has
imitated an official handwriting, signature
or rubric.
So there is an original handwriting or
signature and the offender imitiated or
copied the said original handwriting or
signature.
Is COUNTERFEITING the same as
FEIGNING?
Feigning a handwriting, signature or rubric
is NOT THE SAME as counterfeiting.
When you say FEIGNING, it means
“simulating” a handwriting, signature or
rubric. That is, making a handwriting,
signature or rubric out of nothing which
does not exist. It is an imaginable, an
inexistent handwriting, signature or rubric.
II. CAUSING IT TO APPEAR THAT PERSONS HAVE
PARTICIPATED IN ANY ACT OR PROCEEDING
WHEN THEY DID NOT IN FACT SO PARTICIPATE.
Q: What if a notary public issued, he prepared or issued an
extrajudicial settlement of an estate. In the said extrajudicial
settlement of an estate, it is stated that all the heirs of a
certain decedent can already agree by themselves to
partition the property. So it is an extrajudicial settlement of
an estate and in it, the notary public made it appear that all
the 12 heirs of the decedent had participated, but un truth
and in fact, two of the heirs where in another country and
they did not participate in the execution of this extrajudicial
settlement of the estate. Is the notary public liable?
A: YES. The notary public is LIABLE under the
second act (causing it to appear that persons
have participated in any act or proceeding
when they did not in fact so participate).He
caused it to appear that A and B participated in the
execution of the extrajudicial settlement of the
estate, when they did not in fact so participate.
III. ATTRIBUTING TO PERSONS WHO HAVE
PARTICIPATED IN AN ACT OR PROCEEDING
STATEMENT OTHER THAN THOSE IN FACT MADE
BY THEM
So under the third act, persons participated in
an act or proceeding, they made statements
therein, however, the offender in a document
may appear that these persons have made
certain statements which were not in fact made
by them.
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Q: So what if in the Sangguniang Panglungsod, an document. Since it is a residence certificate or

ordinance was being passed. There was a votation, majority
of the councilors voted, two of the councilors dissented and
their vote were NO. They just stated that they were voting in
the negative, but, they did not give any explanation for their
dissent or the vote of NO. However, in the minutes appeared
by the Sangguniang Secretary, the latter made it appear that
the two councilors made statements that they voted NO
because the said ordinance is contrary to law. Is the said
secretary liable for falsification?
cedula, it is inherent that in this document, nothing
but the truth must be stated – no falsity. Because it
requires identification.
V. ALTERING TRUE DATES
It is necessary that what has been altered must
be a true date and in the alteration of the said
true date, the document will no longer have
any effect.

A: YES. He is a public officer. He is the one who VI. MAKING ANY ALTERATION OR INTERCALATION IN
prepared the minutes for the A GENUINE DOCUMENT WHICH CHANGES ITS
SangguniangPanglungsod and he made it appear MEANING
that the 2 councilors stated that the said ordinance 2 ACTS:
is contrary to law and in truth and fact, they did not i. The offender makes an alteration
made those statements. So the said secretary is ii. The offender makes an intercalation in a
liable for falsification.
genuine document which changes its
meaning
IV. MAKING UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS ALTERATION – changes in a document
The evidence of this act of falsification INTERCALATION – there must be some
requires: insertion made in the said document, in a
i. That the offender makes in a document genuine document that changed the meaning
untruthful statement in a narration of of the said document
facts;
ii. That he has legal obligation to disclose
VII. ISSUING IN AUTHENTICATED FORM A DOCUMENT
the truth of the facts narrated by him
PURPORTING TO BE A COPY OF ANY ORIGINAL
iii. The facts narrated by the offender are
DOCUMENT WHEN NO SUCH ORIGINAL EXISTS OR
absolutely false
INCLUDING IN SUCH A COPY A STATEMENT
iv. The untruthful narration must be such
CONTRARY TO OR DIFFERENT FROM THAT OF
as to effect the integrity of the document
THE GENUINE ORIGINAL
and that the offender does so with the
2 ACTS PUNISHED:
intent to injure or prejudice another
1. The offender issued in an authenticated
person
form a document purporting to be an
authenticated copy of an original document,
It is necessary that the intention of the intention
but no such original exists
of the offender must be to INJURE ANOTHER
2. By including such copy a statement contrary
PERSON.
to or different from a genuine original
In case of making false statements in a
narration of facts, it is necessary that the
ILLUSTRATION:
offender must have the legal obligation to
Q: What if a notary public issued a deed of absolute sale and
disclose the truth in the said narration of facts.
he said that it is an original copy of a deed of absolute sale
Absence of such legal obligation, then it
between A and B. A selling his property to B, but in truth and
cannot be said that he is liable for falsification.
in fact, no such deed of absolute sale was executed between
When you say legal obligation, there is a law
A and B. Is the notary public liable?
which requires him to state nothing but the
A: YES. He is liable under the first act of
truth in the said document.
falsification in the seventh act of the 3rd element in
Art. 171.
Q: So what if the offender, a public officer, falsified the
statement in his residence certificate or community tax
Q: What if a civil registrar issued a certificate of live birth. So
certificate. Although he stated his true name, he did not state
here comes A. A was asking that he should be given a
his address, citizenship, etc. So makes false statement of
certified copy of a certificate of live birth. In the said
facts in his residence certificate or community tax certificate,
certificate of live birth issued by the said civil registrar, there
otherwise known as cedula. So he was charged with
was a statement that A was an illegitimate child, but in the
falsification. He contended that there is no law which
original copy of the certificate of live birth submitted to the
requires him to state the truth in his residence certificate. Is
office of the Office of the Civil Registrar, there was no such
his contention correct?
statement. Is the civil registrar liable?
A: His contention is wrong. According to a ruling in
the Supreme Court, if it is a residence certificate or
A: YES. He is liable under the second act of
community tax certificate, there need not be a law
falsification in the seventh act of the 3rd element in
which requires a person to state the truth in the said
Art. 171. Because he included in the said copy a
residence certificate, it is inherent in the kind of

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
statement contrary to or different from that of a
genuine original.
VIII. INTERCALATING ANY INSTRUMENT OR NOTE
RELATIVE TO THE ISSUANCE THEREOF IN A
PROTOCOL, REGISTRY OR OFFICIAL BOOK.
INTERCALATION – making any insertion in
any instrument or note
So these acts, under ARTICLE 171, are also the very
same acts punished under Art. 172.
ARTICLE172 – FALSIFICATION BY PRIVATE
INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS
THREE PUNISHABLE ACTS/FELONIES?
I. Falsification of a public, official or commercial
document by a private individual
So in case of FALSIFICATION OF A PUBLIC,
OFFICIAL OR COMMERCIAL DOCUMENT
by a PRIVATE INDIVIDUAL, is just the same
as ARTICLE 171 – they only differ in that in Art.
171, the offender is a public officer or
employee.
In ARTICLE 172, yes, the document falsified is
a public, official or commercial document, but,
the offender is a private individual even if the
offender is a private individual, since the
document falsified is a public, official or
commercial document, DAMAGE OR INTENT
TO CAUSE DAMAGE IS NOT AN ELEMENT.
II. Falsification of private document by any person
The document falsified is a PRIVATE
DOCUMENT. The offender is any person. He
can be a private individual, he can be a private
officer or employee for as long as the
document falsified is a private document, it
necessary that there must be damage caused
to a third person or at least the intention of the
offender is to CAUSE DAMAGE.
Absence of damage or intent to cause
damage, then falsification of a private
document will not arise.
III. Use of falsified document
A document has been falsified and the
offender uses the said document.
If the falsified document is used in a JUDICIAL
PROCEEDING, again, DAMAGE or INTENT
TO CAUSE DAMAGE is NOT AN ELEMENT
because it is a judicial proceeding.
But if the said falsified document is used in any
other transaction, this time, damage or intent
to cause damage is an ELEMENT.
ARTICLE173 – FALSIFICATION OF WIRELESS
TELEGRAPH AND TELEPHONE MESSAGES
Punishable acts
I. Uttering fictitious, wireless, telegraph or
telephone message
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II. Falsifying wireless, telegraph or telephone
message
III. Using such falsified message
If the act punished is UTTERING FICTITIOUS,
WIRELESS, TELEGRAPH OR TELEPHONE
MESSAGES and FALSIFYING WIRELESS,
TELEGRAPH OR TELEPHONE MESSAGES, note that
these can only be committed by a person working in a
department, agency or corporation which is engaged in
a business of receiving and sending wireless, telegraph
and telephone messages.
Under the third act – USING FALSIFIED WIRELESS,
TELEGRAPH OR TELEPHONE MESSAGES, this time,
it can be committed by any person.
Articles 174 and 175 refer to the persons who shall be
criminally liable in case of falsified document.
ARTICLE174 – FALSE MEDICAL CERTIFICATES, FALSE
CERTIFICATES OF MERIT OR SERVICE, ETC
Under Art. 174, if the offender is a PHYSICIAN OR
SURGEON who issues a false medical certificate in the
practice of his profession, he becomes liable under Art.
174.
Likewise, Art. 174 punishes a PUBLIC OFFICER who
issues a false certificate of merit, service or good
conduct, moral character, etc.
And, under Art. 174, ANY PRIVATE INDIVIDUAL who
falsifies a medical certificate or certificate of merit or
service or good conduct shall be also criminally liable.
The offender is the person who falsifies, issues the false
medical certificate or certificate or merit.
If the offender is not the falsifier, but he knows that the
said document is falsified and he makes use of the
same, his liability is under Art. 175.
ARTICLE175 – USING FALSE CERTIFICATE
Under Art. 175, the offender knows that the medical
certificate or certificate of merit has been falsified and
despite that knowledge, he makes use of the same.
ILLUSTRATION:
Q: So what if the defense counsel is about to present his
witness. The witness is a person who was present in the
scene of the crime who actually saw the incident – that is
according to the defense counsel. However, on the date of
the said hearing, the said witness failed to appear, the
defense counsel said to the judge: “Your Honor, my witness
is in the hospital, he cannot even get out of bed. He is very,
very sick.” The judge, however, was doubtful of the said
manifestation of the defense counsel and so the judge told
the defense counsel: “Okay, let him appear in the next
hearing and make sure that he brings with him a medical
certificate to show that indeed he can testify in this hearing.
With that, the defense counsel informed the witness of the
said order of the court. The said witness was in that time,
healthy, it is just that he was too afraid to testify. However,
in the next hearing, he is deemed required to produce a
medical certificate showing that he was bedridden. And so,
he went to his medical doctor. He asked the doctor to issue
a medical certificate saying that he was very, very sick and
that he could not get out of bed on the said date. The said
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doctor issued the said medical certificate and then his
witness appeared on the second hearing and presented him
to the court. It was submitted to the records of the court.
What crime or crimes is/are committed by doctor or the
physician as well as by the witness?
A: The PHYSICIAN is liable under Art. 174. He
issues a false medical certificate in the exercise or
in the practice of his profession.
On the other hand, the WITNESS, despite
knowledge that it is a falsified medical certificate,
still made use of the same and he presented and
submitted it to the court.
ARTICLE176 – MANUFACTURING AND POSSESSION
OF INSTRUMENTS OR IMPLEMENTS FOR
FALSIFICATION
This is the felony that is if a person was found in
possession of unfilled-out forms of driver’s license, he
can be held liable for falsification of a public document
and liable only in Article 176.
Under Art. 176, what was being punished are:
1. Making or introducing into the Philippines any
stamps, dies, marks or other instruments or
implements for counterfeiting or falsification.
2. Possessing with intent to use the instrument or
implements for counterfeiting or falsification made
in or introduced into the Philippines by another
person.
ARTICLE177 – USURPATION OF AUTHORITY OR
OFFICIAL FUNCTIONS
I. Usurpation of authority is committed when a person
knowingly and falsely represents himself to be an
officer or agent of any department of the Philippine
government or agency thereof or of a foreign
government.
The crime will immediately arise from the mere
act of person of knowingly and falsely
representing himself to be an officer or agent
of any department or agency of the Philippines
or of a foreign country. It is not necessary for
the offender to commit any act, to perform any
act. It suffices that he falsely represents
himself to be an officer or agent of the
Philippine government. The crime will
immediately arise. However, the said false
representation, aside from being done
knowingly, must be such that he intended to be
known by such other person or by public as a
representative or agent of Philippine
government.
II. There is usurpation of official function if any person
performs an act pertaining to a person in authority
or a public officer of the Philippine Government or
of a foreign government or agency thereof, under
pretense of official position, and without being
lawfully entitled to do so.
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It is necessary that the offender performs an act.
Mere representation will not suffice. It is
necessary that he performs an act pertaining
to a person in authority or a public officer of any
department or agency of the Philippine
government or of a foreign government.
In usurpation of official functions, it is necessary
that the act pertaining to a person in authority
or a public officer must be under pretense of
official position and without being lawfully
entitled to do so.
ILLUSTRATION:
Q: What if an administrative case was filed against the
mayor before the Office of the Ombudsman. During the
investigation of the case, the Ombudsman preventively
suspended the mayor for a period of six months. The DILG
implemented the suspension order and the vice-mayor was
made the acting mayor. However, upon advice of his
counsel, the suspended mayor began working, began
performing the acts of being a mayor after 90 days of
preventive suspension. That is because according to his
counsel, he can only be suspended for a period of 90 days.
So on the 91st day of his suspension, he again began
assuming the function of a mayor. He signed documents, he
issued memorandum, etc. as the city mayor. Is he liable
under Article 177 for usurpation of official function?
A: Yes, he is liable for usurpation of official
function under Article 177. The reason is that he
is still under preventive suspension. Unless and
until it is lifted by the Ombudsman and the said
lifting was implemented by the DILG, he remains to
be a suspended mayor. And for having acted, for
having performing an act pertaining to the office of
a mayor, he is said to be committed a violation of
Article 177, usurpation of official function.
Q: What if there was heavy traffic. So there was no MMDA
officer or policeman manning the traffic. One of the owners
of the vehicle caught in the traffic alighted from the vehicle
and he manned the traffic to ease the flow of the traffic. The
said man performed an act pertaining to an officer of the
MMDA, pertaining to a traffic enforcer. Is the said man liable
for usurpation of official function?
A: NO. While the man performed however he did
not do so under pretense of official position and
without being lawfully entitled to do so. There was
no intent on his part to falsely represent himself as
to be in that position. There was no false pretense
of official position therefore he cannot be held liable
under Article 177 or usurpation of official function
because his act was only done out of pacific
(promote peace; to end a conflict) spirit to help ease
the said traffic.
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ARTICLE178 – USING FICTITIOUS NAME AND
CONCEALING TRUE NAME
Punishes two acts:
I. USING FICTITIOUS NAME
Committed by any person who shall use a
name other than his real name publicly for
concealing a crime, or evade the
execution of a judgment, or to cause
damage to public interest.
ELEMENTS:
1. The offender uses a name other than his
real name
2. That he uses that fictitious name publicly
3. That the purpose of the offender is either:
a. to conceal a crime; or
b. to evade execution of a judgment; or
c. to cause damage to public interest.
II. CONCEALING TRUE NAME
ELEMENTS:
1. The offender conceals—
a. his true name; AND
b. all other personal circumstances
2. That the purpose is only to conceal his
identity
HOW WOULD YOU DISTINGUISH IF THE CRIME
COMMITTED IS USING FICTITIOUS NAME OR
CONCEALING TRUE NAME?
In case of using fictitious name, the use of a name
other than his real name, is done publicly. There is
the element of publicity. Whereas, in case of
concealing true name, it is not necessary that the
use of another name, concealing his true and real
name must be done publicly.
Using fictitious name and concealing true name
differ in purposes. In case of using fictitious name,
the purpose is to conceal a crime, evade the
execution of judgment or to cause damage to public
interest. On the other hand, in concealing true
name, the only purpose of the offender is to conceal
his true and real identity.
ANTI-ALIAS LAW (C.A. No. 142, as amended)
SO RELATED IN ARTICLE 178 IS C.A. 142 AS AMENDED
What is an alias? What does C.A. 142, as amended, or
the Anti-Alias Law provide?
According to the SC, an alias is a name or names
use intended to be used by a person publicly and
habitually, usually in business transaction other
than the name registered at birth for the first time
before the local civil registrar.
Under C.A. 142 as amended, except as
pseudonym, in literary, cinema, television, radio
and other entertainment purposes, and in athletic
events wherein the use of a pseudonym is a normal
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practice, no person can use any name other than
his name by which he is registered at birth at the
local civil registrar or by which he is registered by
the Bureau of Immigration upon his entry into the
Philippines, in case of an alien.
The use of any other name must only be upon
approval by the judicial or competent authority.
Therefore, no person can use any other name other
than the name by which he is baptized at the office
of the civil registrar in your place other than the
name by which he is recorded in Bureau of
Immigration, if case he is a foreigner coming here
in the Philippines. He can only use his name.
EXCEPT if he is an actor, if he is an athlete, then
he is allowed to use a pseudonym. When he is a
writer of a book, then he is allowed to use a
pseudonym, a pen name other than his real name
because it is a normal practice OR if he files the use
of a substitute name before the court and he is
allowed by judicial or competent authority to use
any other name, then he can also use another
name. But outside these, a person can only use
the name by which he is registered at the office of
civil registrar.
CESARIO URSUA v. CA
The said accused made use of a different name. he
used the name of Oscar Perez in the office of the
Ombudsman as he was trying to get a copy of the
complaint filed against him. It was however
discovered that a case of violation of CA 142 was
filed against him.
The SC held that he is not criminally liable. The SC
acquitted the accused because according to the
SC, the use of the name Oscar Perez in an isolated
transaction, without any showing, absent an
evidence that henceforth he wanted to be known by
the name of Oscar Perez in not within the
prohibition of CA 142 as amended. There was no
evidence that showed that henceforth he wanted to
be known by that name. There was no showing that
henceforth, he wanted to be called by the said
name therefore it cannot be said that Oscar Perez
is an alias of the accused.
PEOPLE v. ESTRADA
In this case, the former president made use of the
name Jose Velarde in signing a trust account. So
he signed a trust account, using the name Jose
Velarde and so he was charged with violation of CA
142 as amended.
Again, the SC said, the use by Erap of the name
Jose Velarde in a single, isolated transcation,
without any showing that henceforth he wanted to
be known by such name, is not within the
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prohibition of CA 142 as amended. First, it was not
done publicly and was in fact done secretly in the
presence of Laquian and Chua and the said act of
signing does not make it public because these two
are his close friends therefore it was done secretly,
in a discreet manner. Hence, it was not done
publicly. It was also not done habitually. The
element of habituality is not present because there
was no showing that in any other transaction, he
made use of the name Jose Velarde. Hence, he
was also acquitted although convicted by
Sandiganbayan, he was acquitted by the SC.
Q: What if a lawyer was having a massage in a sauna bath
parlor. He did not know that as a front it is a sauna bath parlor
but in truth and in fact, it was a prostitution den. At the time
that he was having this massage service, the police raided
the place because they were able to secure a search
warrant. And among those arrested was the said attorney.
The said attorney was brought to the PNP station and he
was asked of his name, ashamed to reveal his true identity,
his true name, he said that he was Y and did not state that
he was Atty. X. However, when he was asked his residence,
he stated the truth. As of the name of his wife, he stated the
truth. As of the name of his children, he stated the truth. Is
he liable for using fictitious name?
A: He is not liable for using fictitious name.
First, he did not do so publicly. Second, his use of
the name was not done to conceal a crime, to
evade the execution of sentence or to cause
damage to public interest—none of these purposes
is present; therefore he is not liable for using
fictitious name.
Is he liable for concealing true name?
No, he is not liable for concealing true
name. Although he concealed his real name,
Atty. X, he did not conceal his other personal
circumstances. He divulged his address. He
divulged the name of his wife, the names of
his children; therefore, it cannot be said that
he has the intention to conceal his true
identity. In fact, his true identity can easily be
verified just by going to the said address;
therefore he is not also liable for concealing
true name.
Is he liable under CA 142, as amended?
He is also not liable under CA 142, as
amended, because the use of the name Y in
a single transaction, in a single isolated
transaction, without any showing that
henceforth he wanted to be known as Y is not
within the prohibition of CA 142, as amended.
ARTICLE179 – ILLEGAL USE OF UNIFORMS AND
INSIGNIA
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Committed by any person who makes use of any
insignia, uniform or dress which pertains to an
office not being held by the offender or to a class of
person of which he is not a member and he makes
use of such insignia, uniform or dress publicly and
improperly.
ELEMENTS:
1. The offender makes use of INSIGNIA,
UNIFORM or DRESS
2. That the insignia, uniform or dress pertains to an
office not being held by the offender or to a class of
person of which he is not a member.
3. That the said insignia, uniform or dress is used
publicly and improperly.
The offender uses the insignia, uniform or dress of an
office not held by him or a by a class of person of which
he is not a member and he used the same publicly and
improperly.
ILLUSTRATION:
Q: What if a person was wearing a uniform. So he said that
it was a uniform of a certain organization known as H world
but in fact, no such organization ever existed. Is he liable
under Article 179?
A: No, he is not liable of Illegal use of insignia,
uniform or dress Article 179. The reason is that
H world does not belong to any office, doesn’t refer
to a class of persons; therefore, he is not liable
under Article 179.
Q: What if a person made use of a uniform of a prisoner. So
you see a person, he was receiving a holy communion, he
was wearing an orange t-shirt with a big letter P at the back
which means Prisoner. Can he be held liable under Article
179?
A: He is not liable of Illegal use of insignia,
uniform or dress under Article 179. Although he used the
uniform of a prisoner, it is not an office held by the offender,
it is not also a class of persons. When you say a class of
persons of which he is a member, it refers to a dignified class
of persons. He is assuming that he belongs to the said class
of persons. Here, he is even belittling himself because he
was wearing a uniform of a prisoner. Hence, it cannot be said
that he violated Article 179.
FALSE TESTIMONY (ART 180, 181, 182)
False testimony can either be false testimony in
criminal cases (Articles 180 and 181), false
testimony in civil cases (Article 182) and false
testimony in other cases.
False testimony in criminal cases can either be: (1)
false testimony against a defendant (Article 180)
and (2) false testimony favorable to defendant
(Article 181).
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ARTICLE180 – FALSE TESTIMONY AGAINST A
DEFENDANT
In a criminal proceeding, the offender-witness
testified falsely against a defendant knowing that
his testimony is false and then the said defendant
is either acquitted or convicted.
ELEMENTS:
1. That there be a criminal proceeding
2. That the offender testifies falsely under oath
against the defendant therein.
3. That the offender who gives false testimony
knows that it is false.
4. That the defendant against whom the false
testimony is given is either acquitted or
convicted in a final judgment. (People v.
Maneja)
ARTICLE181 – FALSE TESTIMONY FAVORABLE TO
DEFENDANT
In a criminal proceeding, the offender-witness
testified falsely in favor of the defendant and he
knew that his testimony is indeed false.
Whether it be a false testimony against or false
testimony in favor of a defendant, it is immaterial
whether the court will consider or not the said false
testimony. The case may be filed.
ILLUSTRATION:
Q: What if A is being prosecuted for the crime of homicide,
for having killed the victim. So while he is being prosecuted,
the fiscal presented a witness. This witness was also brought
in by the heirs of the victim. The heirs of the victim said that
the witness saw the said act of killing. The fiscal believed
and the fiscal presented the said witness. The witness
however was not present at the scene of the crime but in his
testimony the witness said that he was present at the scene
of the crime and that he actually saw the accused stabbing
the victim to death. The accused, A knew that the witness
was testifying falsely because he knew that at the scene of
the crime, it was only he and the victim who were present.
After trial on the merits, the judge, acquitted the said
accused A. In other words, the judge did not give weight to
the testimony of the false witness. Can A still file a case
against the false witness?
A:Yes, A can still file a case of false testimony
against the false witness. He can still file a case
of false testimony against the said false witness
even of the court did not consider the said false
testimony. Even if the court did not give any merit
on the said false testimony and acquitted him. The
crime will arise the moment the said offender
testified falsely in open court whether in favor or
against a defendant.
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Q: What if in the same case, A was being prosecuted for
homicide. Then the prosecution presented the witness. The
witness testified falsely against the defendant saying that he
saw the actual act of killing. After trial on the merits, the judge
convicted the accused, the judge believed the false
testimony and so the judge convicted him. Upon conviction,
within 15 days from the promulgation of judgment, the said
accused, the said convict, filed an appeal before the CA.
While the case was pending before the CA, can the said
accused, the convicted person, already file a case of false
testimony against the false witness who testified against
him?
A:Not yet. Any case would still be a premature
case. In fact, you would not know what court will
have jurisdiction. You would not know if the court
that will have jurisdiction over the false testimony is
the RTC or the MTC because the penalty to be
imposed on the false witness is always dependent
on the penalty imposed on the convict.
Under Article 180, if the defendant has been
convicted and the penalty imposed is capital
punishment or death then the false witness shall be
imposed with a penalty of reclusion temporal. If the
defendant, upon conviction is imposed with a
penalty of reclusion perpetua and reclusion
temporal, the penalty will be imposed on the false
witness is prision mayor. If the said defendant is
convicted and the penalty imposed on him is any
other afflictive penalty, the penalty to be imposed
on the false witness is prision correcional. On the
other hand, if the penalty imposed on the said
defendant is prision correcional, arresto mayor, fine
or he was acquitted. If he was acquitted, the penalty
to be imposed on the said person who testified
falsely is arresto mayor.
So in this case, the penalty on the false witness is
always dependent on the penalty to be imposed by
the court on the defendant; therefore, there must
first be a final conviction by final judgment.
NOTE: if it is an acquittal, the case can be
immediately filed because an acquittal is
immediately executory. You cannot appeal an
acquittal. It is immediately executory.
(IN FAVOR)
Q: So the case was filed against A for homicide, here comes
a witness, the witness testified falsely in favor of the
accused. Can the private complainant, the heirs of the victim,
immediately file a case of false testimony against the witness
right after the giving thereof?
A: Yes, because in case of false testimony in favor
of the defendant, the penalty of the false witness is
not dependent on the penalty to be imposed on the
said accused or defendant.
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ARTICLE182 – FALSE TESTIMONY IN CIVIL CASES
Right after the giving of the false testimony, the
private complainant or the aggrieved party, can
immediately file a case against the false witness
who testified in favor of the defendant.
ELEMENTS:
1. The testimony must be given in a civil case
2. The testimony must relate to the issues
presented in said case (relative or pertinent)
3. The testimony must be false
4. The false testimony must be given by the
defendant knowing the same to be false.
5. The testimony must be malicious and given with
intent to affect the issues presented in the said
case (U.S. v. Aragon)
In case of false testimony in a civil case, right after
the giving of the false testimony, the false witness
can be immediately prosecuted in court.
In order to amount in false testimony in civil cases,
there must be litigation. Take for example a sum of
money, breach of contract. If the false testimony is
given in a special proceeding, for example,
petition for nullity of marriage, petition for
separation, petition for habeas corpus, these are
special proceedings and a false testimony of a
person who testified falsely during this special
proceeding, the case is under Article 183, false
testimony in other proceedings.
ARTICLE183 – PERJURY
PERJURY is the willful and deliberate assertion of
falsehood on a material matter made before an officer
duly authorized to receive and administer oath.
ELEMENTS:
1. The accused made a statement under oath or
executed an affidavit upon a material matter
There are two ways of committing perjury:
The offender either:
1. Makes a statement under oath
(he makes a false testimony); or
2. Executes an affidavit on a
material matter (if it is an
affidavit, it is also required
under oath)
2. The said statement under oath or affidavit was
made before a competent officer duly
authorized to receive and administer oath
In order to amount to perjury, it is
necessary that the said oath must be
given before an officer duly authorized to
receive and administer. Otherwise, it
cannot be considered as perjury because
the essence of perjuryis the violation of
the solemnity of oath.
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If the person who received the oath is not
duly authorized, it cannot be said that
there is a violation of the solemnity of the
oath.
3. That in the said statement or affidavit, the
offender makes a willful and deliberate
assertion of falsehood
It is necessary for perjury to arise that the
offender deliberately, knowingly
ascertained a falsehood. There was a
deliberate intent on his part; therefore,
good faith is a defense in perjury.
Perjury likewise cannot be committed out
of mere negligence. It is necessary that
there must be a deliberate intent on his
part to assert a falsity either in the
statement or affidavit.
4. The said statement or affidavit containing
falsity is required by law.
If it is not required by law then it cannot be
considered as a crime.
ILLUSTRATION:
Q: What if X made a false statement in a criminal
proceeding, what crime is committed?
A: The crime committed is FALSE TESTIMONY.
Q: A makes a statement in a labor case against B. What
crime is committed?
A: The crime committed is PERJURY.
If the false statement under oath is made in a judicial
proceeding whether it be a criminal or civil proceeding,
the crime committed is FALSE TESTIMONY. If the said
false statement, however, is made in a non-judicial
proceeding, administrative proceedings, or quasi-
judicial proceedings, then the crime committed is
PERJURY. So if the false testimony or the false
statement is made in a labor case, in an administrative
case, in an application for search warrant, during the
preliminary investigation, before the fiscals’ office, the
crime committed is perjury.
Q: What if the offender makes false narration of facts in a
cedula. The offender makes a false narration of facts in a
driver’s license. What crime is committed?
A: FALSIFICATION.
Q: What if the offender makes a false narration of facts in a
statement of assets, liabilities and net worth. So a public
officer filed a statement of assets, liabilities and net worth. It
contains falsities, false narration of facts. What is the
liability?
A: The liability is PERJURY.
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WHERE LIES THE DIFFERENCE BETWEEN
FALSIFICATION AND PERJURY?
In falsification, the document is not required to be
under oath. In case of perjury, the document is
required to be under oath.
HOW ABOUT THE DIFFERENCE OF FALSE
STATEMENT AND PERJURY?
If the false statement is made in a judicial
proceeding, it is false testimony. If the false
statement is made in a non-judicial proceeding or
administrative proceeding or quasi-judicial
proceeding, it is perjury.
ILLUSTRATION:
Q: An applicant for the bar filled out an application form for
the bar, there was a statement therein, “Have you ever been
fined or convicted of any crime?” and the answer was no,
however, in truth and in fact, he has already been fined for
the crime of jaywalking. He answered no and then this
application for the bar is required to be under oath. He was
looking for a notary public since it was a Sunday, there was
no office opened so he went to the legal office of his father,
hoping that there was a lawyer there. However, there was
only the janitor and he asked the janitor to sign in the notary
public part and then submitted it to the office of the bar
confidante. Is the said applicant for the bar liable for perjury
or is he liable for falsification?
A: He is liable of FALSIFICATION and not of
perjury because the person who received and
administered the oath is not a confidante officer
duly authorized to receive and administer the oath.
He was a mere janitor and not a notary public. As
such, the crime committed is falsification. Again,
the essence of perjury is the violation of the
solemnity of the oath.
Q: A wrote a love letter to the girl that he is pursuing. In the
said love letter, he stated falsities such as “You are the only
one in my life.” when in truth there were three of them. He
stated “I love you and I miss you” and they were all falsities.
He even asked it to be notarized and sent it to his third
girlfriend. Is he liable for perjury?
A: No, he is not liable for perjury. He is not liable
for perjury because the said love letter is not
required by law. The fourth element requires, to
amount to perjury, the sworn statement under oath
or the said affidavit must be required by law
because it is a crime against public interest not a
crime against personal interest.
Q: What if in a case submitted in a fiscal’s office, so there
was a complaint and attached thereto is a sworn statement.
In the said sworn statement, the witness said that he saw the
accident. He saw the accused bumped the victim. According
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to him, at the time, he was watching Saksi, when suddenly a
commotion occurred outside, he ran out of the window, he
saw at that particular time the accused hitting the said victim
with his vehicle and so he saw the accused that caused the
death of the victim. That was his statement in the affidavit
filed to the fiscal’s office. During investigation, however, it
was discovered he was not watching Saksi, he was watching
Bandila, the news program in ABS-CBN and not the news
program in GMA. Is he liable of perjury?
A:No, he is not liable of perjury. Although it was
under oath, administered by a fiscal, still it is no
perjury because it is not on a material matter.
Whatever it is that he was watching at the time,
even if it is cartoon, it doesn’t matter. What matters
is that he heard the commotion, he ran to the
window, and he saw the accused bumping the
victim. He saw that it was the accused who killed
the victim and that it was the car of the accused that
hit the victim. Only then, it will be considered as
perjury but whatever he was watching, it was
immaterial. It was not on a material matter;
therefore it will not amount to perjury.
SUBORNATION OF PERJURY is committed by a person
who knowingly and willfully procures another to swear falsely
and the witness suborned does testify under the
circumstances rendering him guilty of perjury.
NOTE: Subornation of perjury is not expressly penalized in
RPC; but the direct induction of a person by another to
commit perjury may be punished under Article 183 in relation
to Article 7, meaning, the crime is plain perjury but the one
inducing another will be liable as principal by inducement
and the one who testified as principal by direct participation.
ARTICLE184 – OFFERING FALSE TESTIMONY IN
EVIDENCE
Committed by any person who shall offer in evidence
any false testimony or any false witness either in a
judicial proceeding or in any official proceeding.
ELEMENTS:
1. The offender offered in evidence a false witness
or false testimony.
2. The offender knew the witness or the testimony
was false.
3. The offer was made in a judicial or official
proceeding.
Is this the same as subornation of perjury?
Subornation of perjury is committed by any
person who procures a false witness in order
to perjures himself and testify falsely in a case.
There is no such crime as subornation of
perjury under the present RPC because we
already have Article 184.
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Article 184 is committed when any person who
procures a witness and offers him as evidence
in court can be held liable under Article 184 or
he can be held liable as a principal by
inducement in false testimony or as a principal
by inducement in perjury; therefore
subornation of perjury is not necessary and it
is not a crime under Philippine jurisdiction,
under the RPC.
ARTICLE185 – MACHINATIONS IN PUBLIC AUCTIONS
There are two acts punishable under Article 185
I. SOLICITING GIFT OR PROMISE
By soliciting any gift or promise as a
consideration for refraining from taking
part in any public auction.
The mere act of soliciting any gift or
promise, so that he will refrain from taking
part of the public auction, will already give
rise to the crime. It is not necessary that
he actually received the gift, it is not
necessary that he actually will not
participate in the said auction.
ELEMENTS:
1. There be a public auction.
2. The accused solicited any gift or a
promise from any of the bidders.
3. That such gift or promise was the
consideration for his refraining from
taking part in that public auction.
4. The accused had the intent to cause the
reduction of the price of the thing
auctioned.
II. ATTEMPTING TO CAUSE BIDDERS TO
STAY AWAY
By attempting to cause bidders to stay
away from an auction by threats, gifts,
promises or any other artifice
The mere attempt to cause bidders not to
participate in the said public auction by
threats, gifts or promise will already give
rise to the crime. It is not necessary that
the bidders would not actually participate.
ELEMENTS:
1. There be a public auction
2. The accused attempted to cause the
bidders to stay away from that public
auction.
3. It was done by threats, gifts, promises
or any other artifice.
4. The accused had the intent to cause the
reduction of the price of the thing
auctioned.
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In order to be liable for this crime, whether it be the act
of solicitation or the act of attempting to cause bidders
to stay away from public auction, it is necessary that the
intention of the offender is to cause the reduction of
the price of the thing which is the subject of the
public auction. The acts complained of must be done
for the purpose of reducing the price of the thing
being auctioned.
In public auction, it is necessary that the public must be
able to get the best price for the thing being auctioned.
If there will be less bidders, less participants in the said
public auction, then the public will not be able to get the
best price for the thing subject of the public auction.
Here, if the non-participation of the other bidders was
caused by a person, then he is liable under Article 185.
Again, the intention of the offender is to cause the
reduction of the price of the thing which is the subject of
the public auction.
ARTICLE186 – MONOPOLIES AND COMBINATIONS IN
RESTRAINT OF TRADE
Acts punished:
I. COMBINATION TO PREVENT FREE
COMPETITION IN THE MARKET
This is committed by any person who shall
enter into any contract or agreement or
taking part in any combination whether in
the form of trust or otherwise, in restraint
of trade or commerce or to prevent by
artificial means free competition in the
market.
II. MONOPOLY TO RESTRAIN FREE
COMPETITION IN THE MARKET
This is committed by monopolizing any
merchandise or object of trade or
commerce or by combining with any other
person or persons in order to alter the
prices thereof by spreading false rumors
or making use of any other artifice to
restrain free competition in the market.
III. 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
MERCHANDISE
The FIRST TWO ACTS under Article 186 can be
committed by any person and not necessarily by
manufacturers, producer or processors. The THIRD
ACT however, can be committed only by
manufacturers, processors, producers and importers
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

who combined with any other person or persons in order

to commit a transaction prejudicial to lawful commerce This is considered a criminal act because the offender,
or to increase the market price of any merchandise or despite knowing that the articles or merchandise that he
object of commerce imported are misbranded, he still imports the same,
sells the same or disposes the same
Whether it be the first, second or third act, the mere
conspiracy in order to restrain or to prevent free Mere importation is a punishable act; therefore it is not
competition will already give rise to the crime. It is not necessary for the offender to become liable under
necessary that there be actual restraint in trade or Article 187 that he must have sold the misbranded
commerce. articles or that he must have disposed the article
because mere importationwill already give rise to
ILLUSTRATION: the crime.
Q: What if Petron, Caltex and Shell connived, combined and
agreed with one another to hoard fuel. They know that the
fuel prices will increase by March and so they decided to
hoard it. Can they be held liable under Article 186?
Juridical corporations cannot be the subject of
criminal action. First, it cannot be said that juridical
persons can act with intent. Second, you cannot
imprison a juridical person in case of conviction. So
if the offender is a juridical entity, who shall be held
liable?
The president, the directors or any of the
members of the said corporation, association
or partnership, who knowingly permitted and
allowed this combination or monopoly in
restraint of trade or commerce. Note that they
must have knowingly permitted the same
otherwise, they cannot be held criminally
liable.

If the objects, which are the subject of this monopoly or

combination in restraint of trade or commerce are prime
commodities such as food, motor fuel, lubricants, it is
not even necessary that there be conspiracy. A mere
proposal, a mere intial step to hoard, to prevent free
competition in the market will already give rise to
the crime.

ARTICLE187 – IMPORTATION AND DISPOSITION OF

FALSELY MARKED ARTICLES
Committed by any person who shall imports, sells or
disposes any article or merchandise made of gold,
silver, other precious materials, or their alloys
ELEMENTS:
1. The offender IMPORTS, SELLS or DISPOSES
any article or merchandise made of gold,
silver, other precious materials, or their alloys
2. That the STAMPS, BRANDS, or MARKS of
those articles or merchandise FAIL TO
INDICATE the actual fitness or quality of said
metals or alloys
3. The OFFENDER KNOWS that the stamps,
brands or marks fail to indicate the actual
fitness or quality of the metals or alloys.

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
TITLE FIVE
CRIMES RELATIVE TO OPIUM AND OTHER
PROHIBITED DRUGS
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
(RA 9165)
SECTION 4 – IMPORTATION OF DANGEROUS DRUGS
AND/OR CONTROLLED PRECURSORS AND
ESSENTIAL CHEMICALS
Is committed by:
Any person, who, unless authorized by
law, shall import or bring into the Philippines any
dangerous drug, regardless of the quantity and
purity involved.
In one Supreme Court decision, it held that: For one
to be liable for importation of dangerous drugs,
it is necessary to be proven that the dangerous
drugs that were taken in a vessel came from a
foreign country with the said dangerous drugs on
board the said vessel; therefore the prosecution
must prove that the vessel which came into the
Philippine ports had with it the dangerous
drugs. Only then can it be said that the dangerous
drugs have been imported from another country.
SECTION 5 – SALE, TRADING, ADMINISTRATION,
DISPENSATION, DELIVERY, DISTRIBUTION AND
TRANSPORTATION OF DANGEROUS DRUGS AND/OR
CONTROLLED PRECURSORS AND ESSENTIAL
CHEMICALS
Selling Dangerous Drugs
Act of giving away any dangerous drug and/or
controlled precursor and essential chemical
whether for money of any other consideration.
ELEMENTS OF SALE OF ILLEGAL DRUGS:
1. The identity of the buyer and the seller
It is necessary that the identity of the
buyer and the seller are clearly
identified.
2. The object and the consideration
3. The delivery of the thing sold and the payment
thereof
Because if the dangerous drugs had
not been delivered, the third element
is lacking, the sale is abds forted,
there is only ATTEMPTED ILLEGAL
SALE of dangerous drugs not
consummated illegal sale of
dangerous drugs because the third
element is lacking.
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Q: What if a person has been prosecuted for Illegal sale of
Dangerous Drugs. The said operation was a buy bust
operation. It is an entrapment procedure which is allowed by
law. Here, the criminal/evil intent originated mainly from the
offender himself that’s why it is not considered as an
absolutory cause. Here, the Police Officers employed means
and methods to entrap and capture the criminal in flagrante
that is in the actual act of committing the crime. So what if in
the buy bust operation, the accused drug seller was
arrested. In the said operation, the informant acted as the
posuer buyer. He was given marked money. The policemen
ran into the place of the drug seller. Only the poseur-buyer
knocked at the door of the drug seller. The drug seller came
out and the poseur-buyer said that he wanted to buy
dangerous drugs in the amount of P200. The drug seller said
okay and gave 2 plastic sachets of dangerous drugs to the
poseur buyer. However, the poseur-buyer without having
given the marked money yet to the drug seller negligently
removed his eyeglasses so the Police officers thought that
that was the signal that the sale has been consummated.
They arrived at the said place and arrested the drug seller.
The marked money was not given to drug seller. Does that
constitute his acquittal?
A: No provided that all the elements are
present:
Note that the second element only requires the
crime must be established. The corpus delicti and
the price must be established. It does not require
that there must be giving of the price/money. It
suffices that the crime was established.
When the poseur-buyer said that he wants to buy
illegal drugs for P200, the price has already been
established. Therefore, all the elements will suffice
even if the marked money has not been given by
the buyer to the seller. In fact, even if the marked
money is not presented in court it will not be a
hiatus on the evidence of the prosecution provided
that the police officers and the witnesses were able
to prove the crime of illegal sale of dangerous
drugs.
Q: How about the poseur-buyer? Is it necessary for the
poseur buyer to testify in court? What if the prosecutor failed
to have the poseur-buyer testify in court? Does it mean to an
acquittal?
A: The testimony of the poseur-buyer is not
indispensable in a case of illegal sale of dangerous
drugs. It is not indispensable because the
transaction can be proven by the other police
officers who have witnessed the transaction.
However if the seller denies the existence of the
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said transaction; it is the incumbent upon the
prosecution to grove the said transaction by the
presentation the said poseur-buyer.
General Rule: The testimony of the poseur-buyer
is not indispensable in a case of illegal sale of
dangerous drugs.
Exemption: When the accused denies the
existence of the said transaction. If the prosecution
failed to present the poseur-buyer to testify in court,
it will amount to the dismissal of the case.
Q: Let’s say there is this cigarette vendor on the side walk
and here comes a man who parked his car near the side
walk. He called the cigarette vendor and told the cigarette
vendor to deliver a package to the man inside the car which
is parked on the other side of the street. He told the cigarette
vendor that he will give him P1000 if the he agreed to deliver
the package to the man inside the car which is parked at the
other side of the street. The cigarette vendor asked the man
what is inside the package however the man said “it’s none
of your business to know what’s inside that. I will give you
P1000 if you deliver this to the man inside that car parked at
the other side of the street.” So the cigarette vendor with the
P1000 got the bag and delivered it to the man at the other
side of the street. He knocked at the window and the man
lowered his window. However at the time of the said delivery
the police officers arrived and arrested the cigarette vendor.
Can he be prosecuted for delivery of dangerous drugs? Can
he be convicted for delivery of dangerous drugs?
A: He can be prosecuted for delivery of dangerous
drugs however it is a defense on his part that he
has no knowledge that the thing he is delivering is
dangerous drugs because under RA 9165,
delivering has been defined as the act of
knowingly passing a dangerous drug to another,
personally or otherwise, and by any means, with or
without consideration. Therefore it is necessary
that the one delivering dangerous drug must have
the knowledge of the thing that he is delivering is
dangerous drug.
DELIVER – an act of knowingly passing a dangerous drug
to another, personally or otherwise, and by any means, with
or without consideration.
SECTION 6 – MAINTENANCE OF A DEN, DIVE, OR
RESORT
Any person who maintains a den, dive, or resort for
the use of illegal drugs are liable under this section.
Are the owners, persons maintaining the said
dangerous drug dens are only the ones who are
criminally liable?
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Under Section 7 of the act, even the
employees who are aware of the nature of the
said den, dive or resort for the use and sale of
dangerous drugs are also criminally liable.
Likewise, even persons who are not
employees which knowingly visit the same
place despite the knowledge of the nature of
such den, dive, or resort are also criminally
liable.
Q: What if the said den, dive, or resort is owned by a third
person? Let’s say A and B rented a house. After giving the
down payment, A and B went to the said house. A and B
used the house as a den for illegal sale of dangerous drugs.
The police officers were able to secure a warrant and A and
B were arrested. Can the owner of the said house be
criminally liable for the maintenance of the said den? How
about the house? Can it be forfeited in favor of the
government?
A: Under Sec. 6, the said den, dive, or resort for the
use of illegal sale of dangerous drugs shall be
escheated in favor of the government provided that
the following circumstances concur:
1. The information must allege that the said
place is intentionally being used in
furtherance of illegal sale/use of
dangerous drugs.
2. Such intent must be proven by the
prosecutor.
3. The owner of the said house must be
included as an accused in the information
or complaint.
If these 3 elements are present; then the said
house shall be confiscated and escheated in
favor of the government.
SECTION 8 – MANUFACTURE OF DANGEROUS DRUGS
The presence if any controlled precursor and
essential chemical or laboratory equipment in the
clandestine laboratory is a prima facie evidence of
manufacture of any dangerous drug.
SECTION 11 – ILLEGAL POSSESSION OF DANGEROUS
DRUGS
ELEMENTS OF POSSESSION OF ILLEGAL
DRUGS:
1. The accused was in possession of prohibited
drug
In illegal possession of dangerous drugs;
the word possession does not only mean
actual possession of the dangerous drug
in his body. It suffices that the said
dangerous drug is found in a place
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under the control and dominion of the
said offender.
Q: By virtue of a search warrant the police officers conducted
a search in the house of A to look for cocaine. They looked
inside the bedroom and underneath the pillow on the
bedroom of A, the found several sachets of cocaine. Can it
be held that A is in possession of the said drugs?
A: Yes because it is under his control and
dominion. Possession does not only mean
physical or actual possession. It also
means as constructive possession for as
long as the dangerous drugs is under his
control and dominion.
2. Such possession is not authorized by law
The offender is not authorized by law to
possess such drugs. Dangerous drugs
are per se contraband. They are per se
illegal items. The presumption is that such
possession is without authority of law.
Therefore the burden of proof is on the
accused to prove that he has the authority
to possess unlike illegal possession of
firearms. Illegal possession of firearms is
not per se contraband therefore in illegal
possession of firearms, it is the
prosecution who has the burden of proof
that the said person lacks license.
3. The accused freely and consciously
possessed the prohibited drug
There must be an animus posidendi on
the part of the said accused. This animus
posidendi on the part of the accused is a
prima facie presumed by law. The
moment a person was found in
possession of dangerous drugs, the
presumes that the person knows that the
thing in his possession is dangerous
drugs.
SECTION 12 - ILLEGAL POSSESSION OF DRUG
PARAPHERNALIA
e.g. A person was found in possession of empty
plastic sachets and other instruments used for
using dangerous drugs. He is therefore liable for
Illegal Possession of Drug Paraphernalia.
Q: What if a person was found in possession of drug
paraphernalia can they avail the benefit of probation?
A: Yes he can avail for probation. The penalty
prescribed by law for illegal possession of drug
paraphernalia’s is an imprisonment ranging from 6
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months and 1 day to 4 years which is within the
probationable penalty. Under Sec. 24 of R.A. 9165,
any person convicted for drug pushing and drug
trafficking, regardless of the penalty imposed by the
Court, cannot avail for probation.
So under Sec. 24; only those who are convicted of
drug pushing and drug trafficking which cannot
avail for probation therefore for any other violation
of Dangerous Drugs Act, for as long as the penalty
imposed by the court is 6 years and below, he can
avail for the benefit of probation. But if he is a drug
trafficker/ pusher, one who is engaged in selling
dangerous drugs, he cannot avail of the benefit of
probation even if the penalty imposed by the court
is within the probationable penalty because it is
expressly prohibited by Sec. 24 of RA 9165.
SECTION 13 – ILLEGAL POSSESSION OF DANGEROUS
DRUGS DURING PARTIES, SOCIAL GATHERINGS OR
MEETINGS
in Sec. 13, if any person was found in possession
of dangerous drug in a party, social gatherings or
meetings, or in the proximate company of at least
two (2) persons; the maximum penalty prescribed
by law shall be imposed.
SECTION 15 – ILLEGAL USE OF DANGEROUS DRUGS
ELEMENTS OF ILLEGAL USE OF DANGEROUS
DRUGS:
1. The offender was apprehended/ arrested in
the actual use of dangerous drugs.
The first element requires that the
offender must be actually using,
sniffing the dangerous drugs.
2. After a confirmatory test; he was found to be
positive for use of any dangerous drugs.
He was at the PNP Crime Lab and
after the confirmatory test, he was
found to be positive for use of
dangerous drugs.
3. No other amount of dangerous drugs must be
found in his possession.
If any other amount of dangerous
drugs was found in his possession,
then the proper charge would no
longer be illegal use but illegal
possession of dangerous drugs.
Q: The police officers saw a man snatched the cell phone of
a woman. Since the police officers saw the man in
committing the crime inflagrante delicto of actual act of
snatching and the man runaway, they followed the man. The
man entered the house. The police officers upon entering
the house saw 3 men on a round table; they were in the
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actual act of sniffing shabu. They were arrested and they
were asked to stand up and fold their arms up and they were
searched. Upon the search, they found out that these 3 men;
each of them was found a sachet of illegal drugs in their
pockets aside from the dangerous drug that they were using.
What cases will you file against the 3 men?
A: Illegal Possession of Dangerous Drugs. No
illegal use of dangerous drugs because the third
element is one thing. Let’s say after the
confirmatory test they were found to be positive
however 3 elements must concur: 1st element:
They were caught in the actual act of sniffing
shabu. 2nd element: After confirmatory test they
were found positive of the use of dangerous drugs
however the 3rd element is lacking because they
found to have in their possession a plastic sachet
of other dangerous drugs other than the one they
used. Therefore the proper crime charged is illegal
possession of dangerous drugs.
SECTION 21 – PROCEDURE IN THE SEIZURE AND
CONFISCATION OF DANGEROUS DRUG
The apprehending team which has the initial possession
of the seized/confiscated dangerous drugs shall:
1. Inventory the dangerous drugs
2. Take photographs of the same in the
presence of the accused or from the
person whom the dangerous drugs
have been confiscated or in the
presence of his counsel, a
representative from the media, a
representative from the Department
of Justice, and an elected public
official who shall be given a copy of
the said inventory and who shall be
required to sign the same.
Procedure:
1. Upon seizure/ confiscation of dangerous drugs, the
same must be stated in the inventory list.
2. There must be a picture taking of the dangerous
drugs in the presence of the accused or from the
person whom the dangerous drugs have been
confiscated or in the presence of his counsel, a
representative from the media, a representative
from the Department of Justice, and an elected
public official.
3. The elected public official must be required to sign
the inventory list and shall be given a copy of the
same.
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Q: What if the police officers failed to comply with this
procedure? In People vs. Sta. Maria, the police officers failed
to comply with this procedure however there was conviction.
However, in the case of Dolera vs. People; the police officers
failed to comply with Sec. 21 procedure and this time there
was an acquittal. Why is there an acquittal in the case of
Dolera and why is there a conviction in the case of Sta.
Maria?
A: The Supreme Court held that even if there is
failure to comply with the procedure underlined in
Sec 21 of RA 9165 by the arresting officers, there
will still be conviction if the said non-compliance is
due to justifiable reasons and provided that the
police officers were able to preserve the integrity
and evidentiary bond of the confiscated dangerous
drugs this is in consonance with the chain of
custody rule.
If the police officers were not able to comply with
the procedure due to justifiable cause, they must be
able to preserve the integrity and evidentiary bond
of the confiscated dangerous drug that is; right after
confiscation, it must be marked to ensure that it was
the dangerous drugs taken from the accused and
must be turned over to the forensic laboratory for
testing.
CHAIN OF CUSTODY RULE
What is the Chain of Custody rule? (People v
Gutierrez)
It is defined as the duly recorded authorized
movements and custody of dangerous drugs
from the time of confiscation/seizure to the
receipt in the forensic laboratory to
safekeeping to presentation in court for
destruction.
What is the purpose Chain of Custody rule?
The purpose of Chain of Custody rule is to
ensure that the dangerous drug
seized/confiscated from the accused is the
very same dangerous drug which has been
tested by the forensic chemist and it is the
very same dangerous drug presented in
court that is; there has been no substitution
of evidence.
Dangerous drugs are so small. There can be a
replacement of the effects therefore this Chain
of Custody rule will ensure that there will be no
substitution of the very same dangerous drug
seized/confiscated from the accused at the
time that they were presented to the court.
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Q: What if a person is charged for illegal possession of
dangerous drugs and during his arraignment, he pleaded not
guilty and during the pre-trial, he said that he will change his
plea if he will be allowed to plead guilty for a lesser offense
of illegal possession of drug paraphernalia. So he wanted to
avail of the plea-bargaining rule under the rules of court.
Under the plea-bargaining rule, you can plead guilty to a
lesser offense provided that the said lesser offense is
necessary included in the offense charged. Here, the charge
is illegal possession of dangerous drugs; can he plead for a
lesser offense of illegal possession of drug paraphernalia?
A: He cannot because Sec. 28 of R.A. 9165
provides that any person charged in violation of any
of the crimes charged under this act cannot avail of
the plea-bargaining under the rules of court.
Therefore any person charged in violation of any of
the punishable acts under R.A. 9165 cannot plead
guilty to a lower offense.
SECTION 25 – A POSITIVE FINDING FOR THE USE OF
DANGEROUS DRUGS SHALL BE A QUALIFYING
AGGRAVATING CIRCUMSTANCE
Q: A killed B. The police officers arrested A and they brought
him to the crime lab to be tested for the use of illegal use of
dangerous drugs. After testing, he was found positive for the
use of dangerous drugs. What is the effect of it in the criminal
liability of A?
A: Sec 25 states the a positive finding for the use
of dangerous drugs shall be a qualifying
aggravating circumstance.
What is the effect of a qualifying aggravating
circumstance?
It changes the nature of the crime or even
without changing the nature of the crime it will
bring about a higher imposition of penalty.
SECTION 26 –ATTEMPT OR CONSPIRACY
Express exception to the general rule that in case
of violation of a penal law, there are no stages and
there is no conspiracy.
As a rule, in case of violation of penal law, we have no
attempted stages. In violation of special penal laws,
conspiracy unless expressly provided because these
are only for violation of the RPC, for felonies. One of
those exceptions is under Section 26 of RA 9165. Under
Section 26 of RA 9165, any attempt or conspiracy of any
of the following acts shall be punished already by
penalty prescribed by law:
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1. Importation of any dangerous drug;
2. Sale, trading, administration, delivery,
distribution, transportation of dangerous drug;
3. Maintenance of a den, dive, or resort where
any dangerous drug is used in any form;
4. Manufacture of any dangerous drug;
5. Cultivation or culture of plants which are the
sources of dangerous drugs.
If any of these acts mentioned is committed by the
offender, a mere attempt; or conspiracy will already
give rise to the crime as an exception to the rule
that in case of violation of penal law, there are no
stages in the commission of the crime and
conspiracy will not lie. So if any of the crime
committed is any of these five acts, mere attempt
will lie against the offender, conspiracy will lie
against the offender.
As held in the case of People v Rolando Laylo, the charge
was only attempted illegal sale of dangerous drugs. The sale
was aborted because even before the said drug poseur was
able to transfer the dangerous drug to the police officer, the
police officers already introduced themselves as such and
arrested him. As such, we only have attempted illegal sale
of dangerous drugs.
SECTON 98 – LIMITED APPLICABILITY OF THE RPC
In Book I, under Article 10, the provisions of the
RPC shall apply suppletorily or supplementarily to
the provisions of the special penal laws UNLESS
the special penal law provides otherwise.
One of the exceptions is provided for in Sec 98 of
RA 9165, it is provided that the provisions of RPC,
as amended, shall not apply to the provisions of RA
9165. The law uses the word shall; therefore you
cannot apply the provision of RPC to the provisions
of RA 9165.
Exception to Section 98: If the offender is a minor
offender.
Where the offender is a minor, the penalty
for acts punishable by life imprisonment to
death provided shall be reclusion perpetua
to death.
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TITLE SIX
CRIMES AGAINST PUBLIC MORALS (Articles 200 –
202)
ARTICLE200 – GRAVE SCANDAL
Grave Scandal – a highly scandalous act offensive
to good morals, good customs and decency
committed in a public place or within public
knowledge or public view.
ELEMENTS:
1. The offender performs an act or acts
2. Such act or acts be HIGHLY SCANDALOUS as
offending against decency or good customs
It is necessary that the act must be
highly scandalous and offensive to
morals, offensive to decency and
offensive to good customs.
3. That the highly scandalous conduct is not
expressly falling within any other article of this
Code.
The third element requires that it must
not expressly fall within any other
article of this code. It must not
constitute any other violation in the
RPC. Grave scandal is a crime of
last resort because you only file a
complaint for grave scandal when the
said act is not punishable under any
other article in the RPC.
4. The act or act complained of be committed in a
public place or within the public knowledge or
view.
Then the fourth element provides that
the highly scandalous act must be
committed either in a public place or
within public knowledge or view. If the
highly scandalous act is committed in
a public place, the crime of grave
scandal will immediately arise. The
place being public, the law presumes
that someone may have witnessed the
commission of the highly scandalous
act. However, if the crime is committed
or if the highly scandalous act is
committed in a private place, for the
crime of grave scandal to arise, it is
necessary that it must be witnessed by
one or more persons to be said that it
is within the public knowledge or public
view.
ILLUSTRATION:
Q: So let us say that A and B are boyfriend and girlfriend and
it is their anniversary. They went to Luneta Park and at
exactly 12 midnight, in the middle of Luneta Park, they
engaged in sexual intercourse. No one witnessed their
sexual intercourse. Are they liable for grave scandal?
A: YES. They are liable for grave scandal. They
have the right to engage in sexual conduct but the
fact that they performed the sexual conduct in
Luneta Park, a public place makes the act offensive
to public morals, decency and good customs and
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the said act does not constitute any other violation
in the RPC because they have the right to engage
in sexual intercourse. Therefore, the crime
committed is grave scandal because they
performed the act in a public place even if no one
saw the commission of the said act still, still
because it is performed in a public place , it is
presumed that someone may have seen the
commission of the highly scandalous act.
Q: So what if a wife and a husband, celebrating their
anniversary, engaged in sexual intercourse in their terrace.
So the act is committed in their premises, in the terrace of
their house. However, the gate was open and so passersby
would see them performing the sexual intercourse. Are they
liable for grave scandal?
A: YES. They are liable for grave scandal. The said
act does not constitute another offense in the RPC
because they have the right to engage in sexual
conduct. The sexual conduct was performed in the
privacy of their home however; people witnessed
the commission of the said act. It now becomes a
highly scandalous act because it is within the
knowledge of the public or within public view.
Q: What if A and B are boyfriend and girlfriend. The girlfriend
is 11 yrs old and the boyfriend is 21 yrs old. And because it
is their monthsary the girlfriend thought of giving herself as
a gift and engaged in sexual intercourse in a public place Are
they liable for grave scandal?
A: NO. They are not liable for grave scandal. The
man is liable for statutory rape. A man who had
sexual intercourse with a child under 12 years of
age, regardless of the consent, regardless of the
willingness of the said child, the man is liable for
statutory rape. Because in so far as criminal law is
concerned, a child under 12 yrs old has no
intelligence of his/her own and is not capable of
giving a valid consent. Therefore, even if the girl
voluntarily gave herself in so far as the law is
concerned, it is still statutory rape. It is not grave
scandal because the third element is wanting. The
said act fall under the violation of article of RPC that
is under article 266-A for rape. As I said, grave
scandal is a crime of last resort. You only charge it
when the crime committed does not constitute any
other violation in the RPC.
ARTICLE201 – IMMORAL DOCTRINES, OBSCENE
PUBLICATIONS AND EXHIBITIONS, AND INDECENT
SHOWS
Punishes:
I. Public proclamations of doctrines openly contrary
to public morals
II. Publication of obscene literature. In case of
publication of obscene literature, it is the author, the
editor, the owner or proprietor of the establishment
that sells the said materials SHALL BE HELD
CRIMINALLY LIABLE.
III. The third act punished is the exhibition of indecent
shows, plays, scenes or acts in fairs, theaters,
cinemas or any other places.
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IV. Selling, giving away or exhibiting films,, engravings, a. by direct provision of the law; or
sculptures or literature which are offensive to public b. by popular election; or
morals. c. by appointment by competent authority
ILLUSTRATION:
Q: So what if there is this building, when the person entered Whenever a person applies to a public office, he has the so-
the said building, on the floor of the said building were these called, OATH OF OFFICE. If he is high-ranking official, the
magazines. And the magazines contain men and women oath is also before a high-ranking official. If he is a cabinet
engaging in sexual intercourse, naked women and men, and secretary, the oath is before the President or to the Supreme
other obscene materials. Who shall be held liable when the Court Chief Justice. If he is only an ordinary employee, still
place was raided by the police? he has oath of office. It is a document which is entitled,
A: The author of the said literature, the editors
“OATH OF OFFICE”, he merely signs it.
publishing such literature and the owner or
proprietor of the establishment where the said
magazines were being sold. They will be held Felonies under TITLE SEVEN are felonies in violation of this
criminally liable under Article 201. oath of office, they can either be:
NON-
VAGRANTS AND PROSTITUTES (ART 202) MISFEASANCE MALFEASANCE
FEASANCE
Q: Let us say that there is this man, a healthy man and he A public officer A public officer
can look for work but he does not want to work. So he was performs an A public officer knowingly,
just roaming around and he saw houses of prostitutes or official acts in a performs in his willfully refuses
houses of ill-fames and he is always in this places. Can he manner not in public office an or refrains from
be held liable for vagrancy? accordance with act prohibited by doing an act
A:NO, because vagrancy has been what the law law. which is his
decriminalized by R.A. No. 10158 which was provides official duty to
approved on March 27, 2012. We no longer have do.
the crime of vagrancy. No person can longer be (GN: Improper (GN: Performance
prosecuted for being a vagrant. performance of of some act which (GN: Omission
some act which ought not to be of some act
How about prostitution? Is there still a crime for might be lawfully done which ought to
prostitution? done) be performed)
YES. ARTICLE
ARTICLE 210-211 ARTICLE
Who is a prostitute? 204 TO 207 208
A prostitute is any woman who, for money or
profit, indulges in sexual intercourse or ARTICLE204 – KNOWINGLY RENDERING UNJUST
lascivious conduct. So it is the work or job of a
JUDGMENT
woman. Note that the law defines it to be a
woman therefore; a man cannot be considered ELEMENTS:
a prostitute. Before, if a man engages in sexual 1. The offender is a judge
intercourse or lascivious conduct he can be 2. That he renders a judgment in a case submitted
punished under Article 202 but now since to him for decision
vagrancy has been decriminalized by R.A. No. 3. That the judgment is unjust
10158, he can no longer be prosecuted. Only 4. The judge knows that his judgment is unjust
prostitutes who are woman.

TITLE SEVEN UNJUST JUDGMENT – is one which is contrary to law, or

CRIMES COMMITTED BY PUBLIC OFFICERS (Articles
203 – 245)
ARTICLE203 – PUBLIC OFFICERS
REQUISITES TO BE A PUBLIC OFFICER:
1. One must be taking part in the performance of
public functions in the Government or one must
be performing in said Government or in any of
its branches public duties as an employee,
agent or subordinate official, of any rank or
class; and
2. That his authority to take part in the performance
of public functions or to perform public duties
must be –
one that is not supported by evidence or both.
The source of unjust judgment can either be mere error
or ill-will. If the source of an unjust judgment is mere
error on the part of the judge, then the said judge is not
civilly, criminally, and administratively liable.
ILLUSTRATION:
In a case submitted to him for decision, the judge wrongfully
interpreted a provision of law. It is a new law, there is no
jurisprudence yet, the judge wrongfully interpreted it. The
judge cannot be held civilly, administratively, and more so,
criminally liable. The said judgment is an unjust judgment
because it was based on this error in the interpretation of the
law. However, there was no intent on the part of the said

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
judge. Considering the basis of the unjust judgment is mere
error. The said judge acted in good faith.
If however, the unjust judgment is based on bad faith,
that is, it is based on ill-motive on the part of the said judge,
therefore, he can be held liable criminally, civilly and
administratively
- For him to be criminally liable, knowing that he
rendered an unjust judgment, it is necessary that
the unjust judgment is rendered out of ill-motive
or bad faith, out of greed, revenge, envy, or any
other ill-motive. Hence he is known to have
rendered an unjust judgment.
BASED ON MERE ERROR – no criminal, no civil, no
administrative liability
ARTICLE205 – JUDGMENT RENDERED THROUGH
NEGLIGENCE
This is again committed by a judge, who in a case
submitted to him for decision, renders manifestly unjust
judgment.
ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted
to him for decision
3. That the judgment is manifestly unjust
4. The it is due to his inexcusable negligence or
ignorance
MANIFESTLY UNJUST JUDGMENT – means that it is
evident that a judgment is unjust. A first year law student
would know that it is unjust, therefore it is manifestly unjust
judgment, because he acted in inexcusable negligence or
ignorance.
ARTICLE206 – UNJUST INTERLOCUTORY ORDER
ELEMENTS:
1. The offender is a judge
2. That he performs any of the following acts:
a. knowingly renders unjust interlocutory
order or decree
b. renders a manifestly unjust
interlocutory order or decree through
inexcusable negligence or ignorance
ARTICLE207 – MALICIOUS DELAY IN THE
ADMINISTRATION OF JUSTICE
ELEMENTS:
1. The offender is a judge
2. There is a proceeding in his court
3. He delays the administration of justice
4. The delay is malicious, that is, delay is caused
by the judge with deliberate intent to inflict
damage on either party in the case.
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ARTICLE208 – PROSECUTION OF OFFENSES;
NEGLIGENCE AND TOLERANCE
ACTS PUNISHABLE:
I. By maliciously refraining from instituting
prosecution against violators of the law
Note that the first crime, he knows that a
crime was committed but he does not
prosecute the offender;
II. By maliciously tolerating the commission
of offenses
the second act, a crime was about to be
committed, he tolerates its commission. It
must be done with MALICE. Absent
malice, Article 208 will not apply.
ELEMENTS OF DERELICTION OF DUTY IN THE
PROSECUTION OF OFFENSES:
1. 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.
2. That there is a dereliction of the duties of his
office; that is knowing the commission of the crime,
he does not cause the prosecution of the criminal
or knowing that a crime is about to be committed,
he tolerates its commission.
3. That the offender acts with malice and deliberate
intent to favor the violator of the law.
Otherwise known as DERELICTION.
Can only be committed by a public officer or a officer of
the law who has the duty to cause the prosecution of or
to prosecute the offenders. The said public officer
commits dereliction of duty in the prosecution of
offenses under any of the following circumstances:
a. knowing the commission of the crime, he
does not cause the prosecution of the
criminal, or
b. knowing that a crime is about to be
committed, he tolerates its commission and
the said offender acts with malice and
deliberate intent to favor the violator of the
law
The dereliction of duty in the prosecution of offenses
cannot be committed by just any public officer.
The public officer must be charged with the prosecution
of the cases or he is the one who can cause the
prosecution of these offenders.
CHARGED WITH THE PROSECUTION OF THE
OFFENDERS:
- Fiscals
- Prosecutors
- State Prosecutors
THOSE WHO CAN CAUSE THE PROSECUTION OF THE
OFFENDERS:
- Judges
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- Barangay Chairman
- Persons in authority
ARTICLE209 – BETRAYAL OF TRUST BY AN
ATTORNEY OR SOLICITOR – REVELATION OF
SECRETS
ACTS PUNISHED AS BETRAYAL OF TRUST BY
ATTORNEY:
I. By causing damage to his client, either
a. by any malicious breach of
professional duty
b. by inexcusable negligence or
ignorance
THERE MUST BE DAMAGE TO HIS
CLIENT
II. By revealing any of the secrets of his client
learned by him in his professional
capacity.
DAMAGE IS NOT NECESSARY
III. By undertaking the defense of the
opposing party in the same case, without
the consent of his first client, after having
undertaken the defense of said first client
or after having received confidential
information from said client.
IF THE CLIENT CONSENTS TO
THE ATTORNEY’S TAKING THE
DEFENSE OF THE OTHER PARTY,
THERE IS NO CRIME
ELEMENTS:
1. Causing damage to his client, either:
a. by any malicious breach of professional duty
b. by inexcusable negligence or ignorance
2. Revealing any of the secrets of his client learned by
him in his professional capacity
3. Undertaking the defense of the opposing party in
the same case, without the consent of his first client
or after having received confidential information
from said client
Under Article 209, this betrayal of trust is IN ADDITION
TO A PROPER ADMINISTRATIVE CASE which may
be filed against an attorney or solicitor. So aside from
the criminal case in violation of Article 209, he can also
be charged in a case also for disbarment, for violation
of lawyer’s oath of duty may be filed against him, and
these two cases can be proceeded at the same time.
ILLUSTRATION:
A lawyer for 3 consecutive times, without any
justifiable reason, failed to file his formal offer of exhibits.
During the first time he was given 15 days, he failed to file,
second time he was given 15 days, he failed to file. On the
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third time, he was given 5 days still, he failed to file, without
giving any justifiable reason for his non-compliance with the
order of the court. By reason thereof, there is no evidence in
behalf of the defense of his client was admitted by the Court.
Because only evidences offered may be admitted by the
court. And so, the judge convicted the accused, the client
was prejudiced because of the counsel’s malicious breach
of his professional duty. It is incumbent upon any counsel to
file a pleading within the reglementary period provided by
law or required by the court.
- For failing to do so without any justifiable reason,
he caused damage to his client by malicious
breach of his professional duty.
Q: What if Atty. A was the counsel of X, he was behind bars
for the crime of kidnapping for ransom. Atty. A visited X to
ask the facts of the case in order for him to study and to nput
up a good defense. During their conversation, X informed his
counsel, Atty. A that there will be another kidnapping
tomorrow night at 9PM in Quezon City, to be done by his
other gang mates who were at large. Atty. A, upon knowing
this information from his client X, immediately went to the
police officers of Quezon City in order to pre-empt the
commission of the crime. Is Atty. A liable for the second act
because he divulged the secrets of his client which he
learned in his professional capacity?
A: Atty. A is not liable under Article 209. The
secrets being referred to under Article 209 refers
to the past crimes of the said client and it refers to
the facts and circumstances related to the crime
which is being handed by the said Attorney or
counsel.
It does not refer to future crimes that are still about
to be committed. When a lawyer takes his oath of
office, he says, or he promise, he swears that he
shall be liable not only to the client, but also to the
STATE, to the GOVERNMENT.
It is his duty to the Government, to the State of
any future crime that is about to be committed
more than his duty to his client. Hence, in this
case, since it refers to a future crime, for the
protection of the state and the citizenry, it is
incumbent upon him to divulge, disclose or to
reveal the said secrets.
Q: What if A filed a case against B, Atty. X was the counsel
of A, A failed to give Atty. X his appearance list for 5
consecutive hearings, no appearance list. So Atty. X, filed a
motion to withdraw as counsel of A. The said motion to
withdraw was with the CONSENT OF A, because without the
consent of A, the said motion to withdraw will not be granted
by the court. So the court granted and Atty. X is no longer
the counsel of A. When B learned about this, went
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immediately to the office of X and secured the services of X.
Atty. X signed a contract and he is now the counsel of B. Is
Atty. X liable for betrayal of trust by an attorney?
A: Atty. X is liable for betrayal of trust by an
attorney. He takes the case of B, the opposing
party, even after he has already taken the case of
A and after he has acquired valuable information
about his client. How can he prevent himself from
being convicted of the betrayal of trust?
He must first secure the consent of the
said first client
- In the said problem, there was no consent. The
said consent was only in the motion to withdraw.
The said consent in the motion to withdraw is not
the consent on the acceptance of the case. For
every motion to withdraw, there must be a
consent written, otherwise the court will not grant
the motion to withdraw. The consent here is to
secure or to accept the service s of the other
party.
- Since consent was not given, he is liable for
betrayal of trust by an attorney.
Just remember aside from betrayal of
trust, an attorney or solicitor can also be
held liable of administrative case. So there
may be disbarment.
He can be disbarred or he can be
suspended by reason of committing any of
these acts.
ARTICLE210 – DIRECT BRIBERY
ACTS PUNISHABLE:
I. By agreeing to perform, or by performing,
in consideration of any offer, promise, gift
or present – an act constituting a crime, in
connection with the performance of his
official duties.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
3. That such offer or promise be accepted,
or received by the public officer with
a view of committing some crime.
4. That the act which the offender agrees
to perform or which he executes be
connected with the performance of
his official duties.
II. By accepting a gift in consideration of the
execution of an act which does not
constitute a crime, in connection with the
performance of his official duty.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
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3. That such offer or promise be accepted,
or received by the public officer in
consideration of the execution of an
act, which does not constitute a
crime, but the act must be unjust
4. That the act which the offender agrees
to perform or which he executes be
connected with the performance of
his official duties.
III. By agreeing to refrain, or by refraining,
from doing something which it is his
official duty to do, in consideration of gift
or promise.
ELEMENTS:
1. The offender be a public officer within
the scope of Article 203
2. The offender accepts an offer or a
promise or receives a gift or present
by himself or through another.
3. That such offer or promise be accepted,
or received by the public officer to
refrain from doing something which it
is his official duty to do so.
4. That the act which the offender agrees
to perform or which he executes be
connected with the performance of
his official duties.
Under the First Act - By agreeing to perform or
performing, in consideration of offer or promise, gift or
present any act constituting a crime in connection with
the performance of his official duties
- If the thing which the public officer is required to
do, is an act which will constitute a crime, a mere
agreement to do so, will already give rise to direct
bribery. It is not necessary that he actually
commits the crime, it is not necessary that he
actually receives the gift or present.
A MERE AGREEMENT WILL SUFFICE.
Likewise in the Third Act - By agreeing to refrain
or by refraining from doing an act which is his official
duty to do, in consideration of an offer, promise, gift or
present.
- If the thing that a public officer is required to do, is
to refrain from doing an act which is his official
duty to do, a mere agreement to refrain to do an
act will already give rise to direct bribery. It is not
necessary to refrain from doing an act, it is not
necessary to receive the said gift.
However, if the thing that a public officer is
required to do, does not constitute a crime, under the
Second Act, mere agreement will not suffice. There must
be actual acceptance of the thing. There must be
acceptance of the gift, in consideration of the execution of
an act which does not constitute a crime in connection with
the performance of his official duty. WHY?
- because the thing that he is being required to do
is not a criminal act. It is his official thing to do, but
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he doesn’t want to do it without the bribe first to
be given to him. So it is only upon ACCEPTANCE
OF THE BRIBE that criminal liability for direct
bribery will arise.
Whatever may be the act constituting direct bribery,
in order to amount to direct bribery, it must always be in
connection with the performance of his official duty. If it is not
in connection with his official duty, it could other crime like
estafa or swindling, but NOT DIRECT BRIBERY.
ACEJAS, III vs. PEOPLE
It is the second act of direct bribery that has been
violated. The second act because it is the duty of the said
BID agent to return the passport. The duty to return the
passport is not a criminal act. It is also not an act of refraining
to do so. But he does not want to perform the act without the
bribe, so he becomes liable under the 2nd act.
ILLUSTRATION:
Q: What if a mother wanted her daughter to work in another
country. The daughter was still a minor, 16 years old. So
what the mother did, was to ask the civil registrar to alter the
birth date or the date in the certificate of live birth with a
promise that the first 2 months of the salary of the daughter
will be given to the civil registrar. The civil registrar altered
the date in the birth certificate. What crime/crimes is/are
committed by the civil registrar and by the mother?
A: The civil registrar is liable for direct bribery
because he agreed to perform an act constituting
a crime in consideration of a promise that the 2
months salary will be given to him. The said act is
in connection with his performance of his official
duty. Therefore he is liable for direct bribery. He
actually performs the act, he actually committed a
crime, therefore he is also liable for the
falsification of a public document because he
actually altered the birth date which is a very
important date in the birth certificate so he is also
liable for the falsification of a public document.
Without the said bribe, the mother would not have
committed falsification, so are you going to
complex them? because direct bribery is a
necessary means to commit falsification.
Even if in reality, they should be complex
because direct bribery is a necessary
means to commit falsification, you cannot
complex them because ARTICLE 210
PROHIBITS SUCH COMPLEXITY OF
CRIMES.
Under Article 210, it is expressly provided that the
penalty for direct bribery shall be IN ADDITION
TO THE LIABILITY FOR THE CRIME
COMMITTED. Here, he actually altered, actually
committed the crime, therefore his liability for
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falsification is in addition for his liability for direct
bribery. Therefore, 2 separate distinct charges
have to be filed against the civil registrar, we have
direct bribery and the other one is falsification of
the public document.
The mother is liable for corruption of public
official (Art. 212). Direct bribery is the crime of
the public officer who receives the bribe. On the
other hand, the private individual or the public
officer who gives the bribe is liable for corruption
of public official under Art. 212. (Refer to Art. 212
– elements)
The mother gives a promise under circumstances
in which the public officer becomes liable for direct
bribery. She is liable for corruption of public
official. The mother is also liable for falsification of
a public document as a principal by inducement.
Without the bribe, without the said inducement,
the said public officer will not have committed the
said falsification.
ARTICLE211 – INDIRECT BRIBERY
ELEMENTS:
1. The offender is a public officer
2. That he accepts gifts
3. That the gifts are offered to him by reason of his
office.
Indirect Bribery is committed if the public officer accepts
any gift or present by reason of his office that he owns.
In case of indirect bribery, the public officer is not
deemed required to do a thing. By the MERE
ACCEPTANCE, indirect bribery is consummated. NO
ACCEPTANCE, NO CRIME IS COMMITTED.
ILLUSTRATION:
A is the newly appointed secretary of DENR. On his first
day of office, Mr. X visited him, paid a courtesy call. Mr. X is
the president of a big logging company. They exchanged
some pleasantries, thereafter, when this president of the
logging company left, he placed a small box on the table.
When he left, the new DENR secretary opened the box and
it was a key to a car parked in front of the building. The new
DENR secretary used it and drove the car
- He is liable for Indirect Bribery. The president
of the logging company does not require him to
do anything, it was merely given to him because
he was newly appointed as the DENR secretary.
His acceptance brings about consummated
indirect bribery; therefore, indirect bribery has no
attempted or frustrated stage because outside
acceptance, no crime is committed.
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ARTICLE211-A – QUALIFIED BRIBERY
ELEMENTS:
1. The offender is a public officer entrusted with law
enforcement
2. The offender refrains from arresting or
prosecuting an offender who has committed a
crime punishable by reclusion perpetua and/or
death
3. The offender refrains from arresting or
prosecuting the offender in consideration of any
promise, gift or present.
Qualified bribery is committed by any public officer who
is in charge with the enforcement of the law. So, in order
to amount to qualified bribery, it is necessary that the
offender whom the public officer does not want to
prosecute must have committed a crime punishable by
reclusion perpetua and/or death.
ILLUSTRATION:
Q: A police officer was conducting a patrol. He saw a man
behind the tree, looking at the other house adjacent to the
tree as if waiting for someone. So the police officer parked
his vehicle and observed what this man would do. The
moment that a man came out of the gate of the house, this
man hiding behind the tree, immediately went directly to him
and shot him 5 times, and killing him instantly. Then, the said
man rode a motorcycle and left. The police officer chased
him. The Police officer arrested him, however, he gave the
police officer P500,000 and told the police officer, “Mr. Police
officer, you saw nothing, you heard nothing.” And the police
officer allowed him to leave. What crime/crimes is/are
committed by the said police officer?
A: The said police officer is liable for qualified
bribery. The crime committed by the said man is
murder, because obviously, in his act of killing,
there was treachery, the other party was
defenseless and obviously the said man
deliberately and consciously adopted the ways
means and methods employed by him in killing
the victim. Since there was treachery, the crime
committed is murder, punishable by reclusion
perpetua to death. His failure to arrest and
prosecute this man constitute qualified bribery
because he did so after accepting P500,000.
Q: What if a police officer was conducting a patrol, he saw A
and B fighting, boxing each other, killing each other, until
they already on the ground. In the course thereof, A pulls out
his balisong and stabbed B several times on the heart, a vital
organ. B died instantly. Thereafter, A ran away, the police
officer tried to catch up with A and he was able to arrest A.
However A, gave the police officer P100,000. The police
officer allowed him to leave. What crime/crimes is/are
committed by the said police officer?
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A: The crime committed by A in killing B is
precedent by a fight, therefore it is merely
homicide. Homicide is punishable only by
reclusion temporal. Since it is only punishable by
reclusion temporal, therefore, qualified bribery is
not applicable.
He committed direct bribery, because he
accepts a bribe, in consideration of an act of
refraining to arrest the said criminal. He actually
refrain from arresting and prosecuting the
criminal, therefore in addition to direct bribery, he
also committed dereliction of duty in the
prosecution of offenses because he actually
committed dereliction of duty by refraining from
arresting the person who has actually committed
a crime. So this time, there are 2 crimes
committed:
DIRECT BRIBERY (ARTICLE 210) AND
DERELICTION OF DUTY IN THE
PROSECUTION OF OFFENSES
(ARTICLE 208)
ARTICLE 212 – CORRUPTION OF PUBLIC OFFICIALS
ELEMENTS:
1. The offender makes offers or promises or gives
or presents to a public officer.
2. That the offers or promises are made or the gifts
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 ANTI-GRAFT AND CORRUPT PRACTICES ACT (RA
3019)
PUBLIC OFFICER - a public officer is any elective
and appointive officials and employees, permanent
or temporary, whether in the classified or
unclassified or exemption service receiving
compensation, even nominal, from the
government. (Sec 2, RA 3019)
JAVIER v SANDIGANBAYAN
Although Javier has been appointed as a
representative of the private sector, in the book
publishing board attached to the office of the
president (NBDB), she is still considered as a public
officer; first, the said board functions as a collegial
body performing public functions; second,
according to SC, she was receiving allowance, a
salary even though nominal, from the government.
Hence, she considered as a public officer.
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SECTION 3 – CORRUPT PRACTICES OF PUBLIC
OFFICERS
IMPORTANT PROVISIONS OF SECTION 3:
(e) 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
functions through manifest partiality, evident bad faith
or gross inexcusable negligence.
ELEMENTS:
1. The said offender was in charge of his official,
administrative or judicial function
2. That he acted with manifest partiality, evident
bad faith or gross inexcusable negligence
3. The said accused caused any undue injury to
any party, including the government, or gave any
private party unwarranted benefits, advantage, or
preference in the discharge of his official functions.
SANTOS v PEOPLE
The Supreme Court said that there are two acts
punished under Section 3 (e) of RA 3019:
1. Causing any undue injury; or
2. Giving any private party any unwarranted
benefit, advantage or preference
The law uses the conjunctive “or”;
therefore, the fact that the offender
causes any undue injury to any party or
the fact that the offender gave any party
unwarranted benefit, advantage or
preference, they can be charged distinctly
or separately from each other.
The Supreme Court also stated that the elements
of Sec 3 (e) of RA 3019
UNDUE INJURY – means there must be an actual
damage caused to the offended party. Absent any
actual damage caused to the offended party, then
section 3 (e) is not violated.
(g) 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
The public officer entered into any contract or
transaction on behalf of the government. The
said contract is manifestly and grossly
disadvantageous to the government.
In NAVA v PALLATTAO, the violation was Section 3 (g).
The DECS officials bought laboratory science materials and
after COA audited, it was discovered that there was an
overpricing. The same is true in CAUNAN v PEOPLE where
Joey Marquez and company bought walis-tingting, and
according to the COA auditors, there was also overpricing of
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these walis-tingting. But in the case of Nava, there was
conviction but in the case of Caunan, there was an acquittal.
Where lies the difference?
In the case of Nava, the COA officials proved
the overpricing because they bought the very
same laboratory materials from the same
supplier where the DECS officials bought and
by reason thereof, it was discovered that there
was indeed an overpricing.
However, in the case of Caunan, Joey
Marquez bought from a different supplier than
where the COA officials bought. The COA
officials bought from a Las Pinas supplier
which they compared with the price of walis-
tingting bought by Joey Marquez. Not only did
they buy the said walis-tingting from a different
supplier, the walis-tingting bought by COA
officials was of different specifications from
that of the walis-tingting bought by Joey
Marquez and company. Hence, the Supreme
Court said that prosecution was not able to
prove beyond reasonable doubt that there was
overpricing. Because the walis-tingting bought
by Joey Marquez was very much different from
the walis-tingting bought by the COA officials.
They were not able to prove beyond
reasonable doubt that there was overpricing
because of the difference in specifications.
In both cases, there was NO PUBLIC BIDDING.
Will the mere lack of public bidding bring about a
violation of Section 3 (g) of RA 3019?
The Supreme Court said that mere lack of
public bidding may mean that the government
was not able to get the best price for the thing
purchased. However, it does not bring about
a violation of Section 3 (g) because what
Section 3 (g) requires is the transaction must
be manifestly and grossly disadvantageous to
the government and mere lack of public
bidding will not show such gross and manifest
disadvantage.
SECTION 4 – PROHIBITION ON PRIVATE INDIVIDUALS
Under Section 4, it is unlawful for any private
individual who has a close personal relation to
any public officer to request, ask or receive
present from any person in any case from
which the said public officer has to control.
Close personal relation does not only include
family members. It also includes those who
have social and fraternal relations; therefore
even a private individual who is not in
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conspiracy of a public officer can be held liable
under RA 3019.
Not only public officers but also private
individuals can be held liable under RA 3019.
Enumerated corrupt practices of Public Officials
(a) 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.
Persons liable:
1. Public officer who persuades, induces, or
influences another public officer;
2. Public officer who is persuaded induced or
influenced
Note: requesting or receiving any gift, present, or benefit is
not required in this provision.
(b) 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 part, wherein the
public officer in his official capacity has to intervene under
the law.
Note:
the lack of demand is immaterial, the law uses the word
OR between requesting and receiving.
There must be clear intention on the part of the public
officer and consider it as his or her own property from
then on. Mere physical receipt unaccompanied by any
other sign, circumstance or act to show acceptance is
not sufficient to lead the court to conclude that the
crime has been committed
Refers to a public officer whose official intervention is
required by law in a contract or transaction
(c) 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 or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given, without
prejudice to Section thirteen of this Act.
(d) 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.
(e) 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 functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of
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offices or government corporations charged with the grant of
licenses or permits or other concessions.
(f) 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 or giving
undue advantage in favor of or discriminating against any
other interested party.
(g) 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.
(h) Director or indirectly having financing or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any law from having any interest.
(i) 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.
Interest for personal gain shall be presumed against those
public officers responsible for the approval of manifestly
unlawful, inequitable, or irregular transaction or acts by the
board, panel or group to which they belong.
(j) 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.
(k) 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.
Note: if damage was caused, Article 229 under the RPC is
committed.
SECTION 9 – PENALTIES FOR VIOLATIONS
Under Section 9, both private individuals and
public officers have just the same penalty. It is
six years and one month to fifteen years plus
forfeiture of the ill-gotten wealth.
SECTION 7 – STATEMENT OF ASSETS AND
LIABILITIES & RA 6713
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When do the officers file the statement of assets,
liabilities and net worth?
The said public officer can file his SALN within 30
days from assumption into office. And then it must
be filed on or before the 30th day of April of the next
years and within 30 days after separation from the
service.
In RA 3019, it is stated “on or before 15th of April”
but there is another law which provides also for the
filing of SALN and that is RA6713 which is the code
of ethical standards for public officers.
Under RA 6713, and this is what is being followed,
it must be on or before the 30th day of April.
So you file first within 30 days upon assumption to
office and then the years thereafter on or before the
30th day of April and then if you got separated from
office, within 30 days from separation from office.
SECTION 8 – PRIMA FACIE EVIDENCE OF AND
DISMISSAL DUE TO UNEXPLAINED WEALTH
When is there a prima facie presumption of graft and
corrupt practices?
There arises a prima facie presumption of graft and
corrupt practices if a public officer has been found
to have in his possession money or property,
whether in his name or in that name of another
person, which is manifestly out of proportion from
his lawful income. There arises a prima facie
presumption of graft and corrupt practices.
SECTION 10 – COMPETENT COURT & RA 8429
Where do you file a case for violation of RA 3019?
You file a case of violation of Article 3019 before
the Sandiganbayan. The Sandiganbayan has
jurisdiction unless otherwise provided by law.
There is a law, RA 8429 which provides for the
jurisdiction of Sandiganbayan. Under this law, if a
public officer is of salary grade 27 and above, it
must be before the Sandiganbayan. If the public
officer is below salary grade 27, it must be before
the RTC.
SECTION 11 – PRESCRIPTION OF OFFENSES
When is the prescriptive period?
Violation for RA 3019 shall prescribe after 15 years.
However, the right of the government to forfeit or to
recover ill-gotten wealth does not prescribe. So
there are no latches and estoppel insofar as the
right of the government to recover ill-gotten wealth
is concerned.
When do you start counting the running of the
prescriptive period of crime?
From the time the crime has been committed or if it
is not known, that is from the time of the discovery
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of the said crime, then it is from the time of the
institution of the criminal perseverance.
SECTION 13 – SUSPENSION AND LOSS OF BENEFITS
Q: What if a public officer, has been charged for violation of
RA 3019, the Ombudsman found probable cause. The case
was now filed before the Sandiganbayan. Is it incumbent
upon the Sandiganbayan to immediately place him under
preventive suspension? Is preventive suspension
automatic? Is preventive suspension mandatory?
A: Preventive suspension is mandatory but it
is not automatic. There must first be a pre-
suspension period to determine the validity of the
information. The moment the Sandiganbayan
discovers the said information is valid, sufficient in
substance to bring about a conviction, it is now
mandatory upon the Sandiganbayan to place the
said accused public officer under preventive
suspension.
So it is not automatic because there must first be a
pre-suspension period. The only issue in the pre-
suspension period is the information filed by the
Ombudsman against the said public officer valid, is
it sufficient enough to bring about a conviction in
court? If the answer is yes, immediately, mandatory
on the part of the Sandiganbayan, a ministerial
duty, the said public officer must be placed under
preventive suspension. It it ministerial not
discretionary, not either or.
For how long should the suspension be?
The suspension must not exceed the
maximum of ninety days, in consonance with
Section 52 of the Administrative Code.
SECTION 14 - EXCEPTION
Q: What if a public officer saw an old man waiting line. So
the old man received a notice, the notice said that his license
is ready, it has already been approved. So he was waiting in
line for the release of his license, it was already approved.
The head of office saw the old man. 85 years old, under the
heat of the sun and with his frail body. So the head of office
took the man and the head of office asked the man to his
office. The head of office asked the secretary, “Is the license
of this man approved?” The secretary said yes. The head of
office said, “get it.” The secretary took it and gave to the head
of office. The head of office, upon seeing that it is approved,
and the man was only waiting for its release, gave it to the
man; therefore the man need not wait in the long line. The
man was so thankful that the following day, the man went
back to the office with two big bilaos of bibingka to the said
head of office to say thank you. The said head of office
received two big bilaos of bibingka. Is the said head of office
liable under RA 3019?
A: No. It falls under the exception. Under Section
14, unsolicited gifts or presents of small or insignificant value
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offered or given as a mere ordinary token of friendship or
gratitude, according to local customs or usage is excepted
from the provisions of RA 3019; therefore the said public
officer will not be held criminally liable.
RA 7080: ANTI-PLUNDER ACT
Ill-gotten wealth
- means any asset, property, business enterprise or material
possession of any person within the purview of Section two
(2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business
associates by any combination or series of the following
means or similar schemes:
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/or entity in connection
with any government contract or project or by reason of the
office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of
assets 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 enterprise or undertaking;
5. By establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation 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
Sec. 2. Definition of the Crime of Plunder, Penalties. Any
public officer who, by himself or in connivance with members
of his family, relatives by affinity or consanguinity, business
associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described
in Section 1 (d) hereof, in the aggregate amount or total
value of at least Fifty million pesos (P50,000,000.00), shall
be guilty of the crime of plunder and shall be punished by life
imprisonment with perpetual absolute disqualification from
holding any public office. Any person who participated with
the said public officer in the commission of plunder shall
likewise be punished. In the imposition of penalties, the
degree of participation and the attendance of mitigating and
extenuating circumstances shall be considered by the court.
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Sec. 4. Rule of Evidence. For purposes of establishing the
crime of plunder, it shall not be necessary to prove each and
every criminal act done by the accused in furtherance of the
scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy.
Sec. 6. Prescription of Crime. The crime punishable under
this Act shall prescribe in twenty (20) years. However, the
right of the State to recover properties unlawfully acquired
by public officers from them or from their nominees or
transferees shall not be barred by prescription, laches, or
estoppel.
RA 9745 ANTI-TORTURE ACT:
Torture refers to:
1. an act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him/her
or a third person information or a confession;
2. punishing him/her for an act he/she or a third
person has committed or is suspected of having
committed;
3. or intimidating or coercing him/her or a third person;
4. or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or
acquiescence of a person in authority or agent of a
person in authority.
It does not include pain or Buffering arising only from,
inherent in or incidental to lawful sanctions.
Acts of torture:
(a) Physical torture is a form of treatment or punishment
inflicted by a person in authority or agent of a person in
authority upon another in his/her custody that causes severe
pain, exhaustion, disability or dysfunction of one or more
parts of the body, such as:
(1) Systematic beating, headbanging, punching,
kicking, striking with truncheon or rifle butt or other
similar objects, and jumping on the stomach;
(2) Food deprivation or forcible feeding with spoiled
food, animal or human excreta and other stuff or
substances not normally eaten;
(3) Electric shock;
(4) Cigarette burning; burning by electrically heated
rods, hot oil, acid; by the rubbing of pepper or other
chemical substances on mucous membranes, or
acids or spices directly on the wound(s);
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(5) The submersion of the head in water or water
polluted with excrement, urine, vomit and/or blood
until the brink of suffocation;
(6) Being tied or forced to assume fixed and
stressful bodily position;
(7) Rape and sexual abuse, including the insertion
of foreign objects into the sex organ or rectum, or
electrical torture of the genitals;
(8) Mutilation or amputation of the essential parts of
the body such as the genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the
teeth;
(10) Pulling out of fingernails;
(11) Harmful exposure to the elements such as
sunlight and extreme cold;
(12) The use of plastic bag and other materials
placed over the head to the point of asphyxiation;
(13) The use of psychoactive drugs to change the
perception, memory. alertness or will of a person,
such as:
(i) The administration or drugs to induce confession
and/or reduce mental competency; or
(ii) The use of drugs to induce extreme pain or
certain symptoms of a disease; and
(14) Other analogous acts of physical torture; and
(b) "Mental/Psychological Torture" refers to acts committed
by a person in authority or agent of a person in authority
which are calculated to affect or confuse the mind and/or
undermine a person's dignity and morale, such as:
(1) Blindfolding;
(2) Threatening a person(s) or his/fher relative(s)
with bodily harm, execution or other wrongful acts;
(3) Confinement in solitary cells or secret detention
places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public
display or public humiliation of a detainee or
prisoner;
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(6) Causing unscheduled transfer of a person
deprived of liberty from one place to another,
creating the belief that he/she shall be summarily
executed;
(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed by
the person's family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person
naked, parading him/her in public places, shaving
the victim's head or putting marks on his/her body
against his/her will;
(11) Deliberately prohibiting the victim to
communicate with any member of his/her family;
and
(12) Other analogous acts of mental/psychological
torture.
Any confession, admission or statement obtained as a result
of torture shall be inadmissible in evidence in any
proceedings, except if the same is used as evidence against
a person or persons accused of committing torture.
Rights of Tortured Victims:
(a) To have a prompt and an impartial investigation by the
CHR and by agencies of government concerned such as the
Department of Justice (DOJ), the Public Attorney's Office
(PAO), the PNP, the National Bureau of Investigation (NBI)
and the AFP. A prompt investigation shall mean a maximum
period of sixty (60) working days from the time a complaint
for torture is filed within which an investigation report and/or
resolution shall be completed and made available. An
appeal whenever available shall be resolved within the same
period prescribed herein,
(b) To have sufficient government protection against all
forms of harassment; threat and/or intimidation as a
consequence of the filing of said complaint or the
presentation of evidence therefor. In which case, the State
through its appropriate agencies shall afford security in order
to ensure his/her safety and all other persons involved in the
investigation and prosecution such as, but not limited to,
his/her lawyer, witnesses and relatives; and
(c) To be accorded sufficient protection in the manner by
which he/she testifies and presents evidence in any fora in
order to avoid further trauma.
Who are Criminally Liable. - Any person who actually
participated Or induced another in the commission of torture
or other cruel, inhuman and degrading treatment or
punishment or who cooperated in the execution of the act of
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torture or other cruel, inhuman and degrading treatment or
punishment by previous or simultaneous acts shall be liable
as principal
Any superior military, police or law enforcement officer or
senior government official who issued an order to any lower
ranking personnel to commit torture for whatever purpose
shall be held equally liable as principals.
The immediate commanding officer of the unit concerned of
the AFP or the immediate senior public official of the PNP
and other law enforcement agencies shall be held liable as
a principal to the crime of torture or other cruel or inhuman
and degrading treatment or punishment for any act or
omission, or negligence committed by him/her that shall
have led, assisted, abetted or allowed, whether directly or
indirectly, the commission thereof by his/her subordinates. If
he/she has knowledge of or, owing to the circumstances at
the time, should have known that acts of torture or other
cruel, inhuman and degrading treatment or punishment shall
be committed, is being committed, or has been committed
by his/her subordinates or by others within his/her area of
responsibility and, despite such knowledge, did not take
preventive or corrective action either before, during or
immediately after its commission, when he/she has the
authority to prevent or investigate allegations of torture or
other cruel, inhuman and degrading treatment or
punishment but failed to prevent or investigate allegations of
such act, whether deliberately or due to negligence shall also
be liable as principals.
Any public officer or employee shall be liable as an
accessory if he/she has knowledge that torture or other
cruel, inhuman and degrading treatment or punishment is
being committed and without having participated therein,
either as principal or accomplice, takes part subsequent to
its commission in any of the following manner:
(a) By themselves profiting from or assisting the
offender to profit from the effects of the act of
torture or other cruel, inhuman and degrading
treatment or punishment;
(b) By concealing the act of torture or other cruel,
inhuman and degrading treatment or punishment
and/or destroying the effects or instruments thereof
in order to prevent its discovery; or(c) By harboring,
concealing or assisting m the escape of the
principal/s in the act of torture or other cruel,
inhuman and degrading treatment or punishment:
Provided, That the accessory acts are done with
the abuse of the official's public functions.
Aggravating Circumstances in torture:
(1) Torture resulting in the death of any person;
(2) Torture resulting in mutilation;
(3) Torture with rape;
(4) Torture with other forms of sexual abuse and, in
consequence of torture, the victim shall have become
insane, imbecile, impotent, blind or maimed for life; and
(5) Torture committed against children.
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Note:
Torture as a crime shall not absorb or shall not be
absorbed by any other crime or felony committed
as a consequence, or as a means in the conduct or
commission thereof. In which case, torture shall be
treated as a separate and independent criminal act
whose penalties shall be imposable without
prejudice to any other criminal liability provided for
by domestic and international laws. (Sec 15)
Persons who have committed any act of torture
shall not benefit from any special amnesty law or
similar measures that will have the effect of
exempting them from any criminal proceedings and
sanctions. (sec 16)
REFOULER- No person shall be expelled, returned or
extradited to another State where there are substantial
grounds to believe that such person shall be in danger of
being subjected to torture.
CHAPTER THREE – FRAUDS AND ILLEGAL
EXACTIONS AND TRANSACTIONS
ARTICLE 213 – FRAUDS AGAINST THE PUBLIC
TREASURY AND SIMILAR OFFENSES
Article 213 punishes two (2) acts:
1. Fraud against public treasury (par.1)
2. Illegal exactions (par. 2)
ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY
(ART. 213, PAR. 1):
1. That the offender is a public officer
2. that he should have taken advantage of his office, that
is he intervened in the transaction of his official capacity
3. That he entered into an agreement with any interested
party or speculator or made use of any other scheme
with regard to:
(1) furnishing supplies
(2) the making of contracts
(3) the adjustment or settlement of accounts
relating to public property or funds
4. That the accused had intent to defraud the Government
So here, the public officer took advantage of his official
position in entering into contract which involves the
furnishing of supplies, or which involves public funds or
property and the intention is to DEFRAUD THE
GOVERNMENT. It is not necessary that the Government,
the treasury be actually be defrauded, it suffices that
entering in the said contract, the intention of the said
offender, the public officer, is to defraud the Government.
ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2)
1. That the offender is a public officer entrusted with the
collection of taxes, licenses, fees and other imposts.
2. 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
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(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.
Here, the offender is a COLLECTING PUBLIC
OFFICER. A public officer who has been entrusted with duty
to collect taxes, licenses, fees or other imposts. Only this
kind of public officer can commit this crime because
ILLEGAL EXACTION involves violation of rules on
collection.
1st Act - Demanding, directly or indirectly, the payment of
sums different from or larger than those authorized by law;or
ILLUSTRATION:
Q: There was this cashier in the city treasurer’s office. Here
comes X, X said that he is going to get a cedula (residence
certificate) and then X said, “How much am I going to pay?”
and then, the cashier or the collecting officer said, “you have
to pay Php200” but it is actually Php20. X said, “hmp,
angmahalpala, ayokona.” and so he left. Is the said
collecting officer liable of any crime?
A:YES, he is liable. For merely demanding an
amount larger than that authorized by law, he is
already liable for ILLEGAL EXACTION under
Article 213, Par. 2.
Q: He is already liable, he merely demanded, but what if in
the same problem, X said he was going to get a cedula. The
collecting officer saw him and he appears to be poor man
and so X asked the collecting officer, “How much am I going
to pay?” and the collecting officer took pity of X and said,
“Only Php 10”. So, the poor man said, “Oh, I have more
money, I’ll get two”. Is the collecting officer liable of any
crime?
A:YES, he is liable because he demanded an
amount different from that authorized by law. Note
that what the law requires is the demanding of an
amount, directly or indirectly, different from or
larger than those authorized by law. Therefore,
even if it is lower, so long as it is different from that
provided by law, and so long as it is demanded by
the said collecting officer, then it is considered as
ILLEGAL EXACTION.
It is not necessary for the said collecting officer to
have misappropriate the funds, the moment that he
misappropriates the funds, in addition to illegal
exaction, he may also be held liable for
MALVERSATION, because Illegal Exaction is only
about the rules on collection. It has nothing to do
with the appropriation or misappropriation of funds
or property. Only a violation of the rules on
collection.
2nd Act - Failing voluntarily to issue a receipt, as provided by
law, for any sum of money collected by him officially;
ILLUSTRATION:
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Q: So what if it was January 2, all kinds of payment are being
made at the start of the year. So the collecting officer in the
treasurer’s office rans out of official receipt (O.R.). And so he
got a half sheet of typewriting paper and he note there about
the said payment and a provisional receipt and he gave it to
the same person who made the payment. Is the said
collecting officer liable of illegal exaction?
A: He IS NOT. Because he did not voluntarily fail
to issue the said O.R. He ran out of the said
O.R., it was not voluntary on his part. It was an
emergency situation. It is good that she even
gave a provisional receipt as a proof of payment.
In this case, he cannot be held liable for illegal
exaction.
3rd Act - Collecting or receiving, directly or indirectly, by way
of payment or otherwise, things or objects of a nature
different from that provided by law.
Here, under the third act, it does not refer to the
amount of payment. It refers to the KIND OR NATURE OF
PAYMENT. So, when the law says that it should be paid in
cash, ONLY CASH may be received by the said collecting
officer.
ILLUSTRATION:
So the collecting officer is known as a sabungero. So
here comes one of the persons who was making payment.
He has no money, but said, he has a magandangtandang.
And so, that was the payment received. He commits a
violation of illegal exaction.
Q: What if the person who demanded an amount or different
from or larger than that which is provided for by law is an
officer, a collecting officer from the Bureau of Internal
Revenue, or a collecting officer form the Bureau of Customs.
Is he liable under Article 213?
A: He is not liable for illegal exaction under
Art. 213. He is liable under the Tax Code or
under the Tariffs and Customs Code. Under Art.
213, it is expressly provided that if the collecting
officer is a collecting officer coming from the
Bureau of Internal Revenue or Bureau of
Customs is not liable under this Article. The
reason here is that, this collecting officer from
the BIR and the BOC, have the right to ask for
penalties, surcharges, and compromise.
Therefore, they can always demand and amount
different from or that which is larger than that
authorized by law. If they exceeded that
authority, then they are liable under the Tariffs
and Customs Code or under the Tax Code, but
NOT UNDER THE RPC.
ARTICLE 214 – OTHER FRAUDS
ELEMENTS:
1. Offender is a public officer
2. He takes advantage of his official position
3. He commits any of the frauds or deceits enumerated in
Articles 315-318
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If any of the public officer commits any of the frauds or
deceits constituting ESTAFA or SWINDLING, under Art.
315-318, and he does so by taking advantage of his official
position, his criminal liability is Other Frauds under Art. 214.
- Not estafa, Not swindling. the reason is that in
case of a public officer, there is additional penalty.
If you look at Article 214, the law says that the
penalty is the same penalty as the first offense
under Art. 315-318. But additional to that,
temporary disqualification to perpetual
disqualification for having taken advantage of his
official position. Therefore, if it is a public officer
who commits estafa or swindling, the crime is
under Art. 214 and there is an additional penalty.
ARTICLE 215 – PROHIBITED TRANSACTIONS
ELEMENTS:
1. Offender is an appointive public officer
2. He becomes interested, directly or indirectly in any
transaction of exchange or speculation
3. Transaction takes place within the territory subject to his
jurisdiction
4. He becomes interested in the transaction during his
incumbency
ARTICLE 216 – POSSESSION OF PROHIBITED
INTEREST BY A PUBLIC OFFICER
PERSONS LIABLE:
1. Public Officer who, directly or indirectly, became
interested in any contract or business in which it was his
official duty to intervene.
2. Experts, arbitrators, and private accountants who, in like
manner, took part in any contract or transaction
connected with the estate or property in the appraisal,
distribution or adjudication of which they had acted
3. Guardians and executors with respect to the property
belonging to their wards or the estate
CHAPTER FOUR – MALVERSATION OF PUBLIC FUNDS
OR PROPERTY
ARTICLE 217 – MALVERSATION OF PUBLIC FUNDS OR
PROPERTY (PRESUMPTION OF MALVERSATION)
ELEMENTS:
1. Offender is a public officer or employee
2. He has the custody or control of funds or property by
reason of the duties of his office
3. Those funds or property were public funds or property
for which he was accountable
4. He appropriated, took, misappropriated or consented,
or through abandonment or negligence, permitted
another person to take them
Who is the offender?
- The offender is an accountable public officer. An
accountable of public officer is an officer in the
course of the performance of his duties, receives
funds or property from the government which he
has the obligation to account later. So he has in his
custody, public funds or public property and he has
the obligation to account these to the Government.
Punishable acts:
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1. Appropriating public funds or property
2. Taking or misappropriating the same
3. Consenting, through abandonment or negligence,
permitting any other person to take such public funds or
property
4. Being otherwise guilty of the misappropriation or
malversation of such funds or property
Malversation of Public Funds and Property can be
committed either through a positive act, that is, that the said
public officer is the one who misappropriates, takes or
appropriates the public funds and property, OR, through a
passive act, that is, through his abandonment or negligence,
he permitted others to misappropriate the same.
- Malversation can be committed either through a
positive act, which is through deliberate intent or
through dolo. He is the one who appropriates or
misappropriates, who took the the said public funds
or property
- Passive Act which is through his abandonment or
negligence, or cupla. he allowed others to
appropriate or misappropriate the said public funds
or property
When is there prima facie presumption of malversation?
- Under Article 217, there arises prima facie
presumption of malversation of public funds or
property when demand is made by a duly authorized
officer to an accountable public officer to account for
public funds or property, and the same is not
forthcoming
ILLUSTRATION:
So the COA auditor, appeared and conducted an
audit He demanded for the said amount, the said
accountable public officer cannot reduce the said amount.
There arises the prima facie presumption that he has
malverse the said public funds or property. Although that is
what is written under Article 217, last paragraph. The
Supreme Court in the number of cases said:
“Mere shortage in audit will not suffice. For the Prima
facie presumption to arise the following requisites must
be present: - It is necessary that there must be
complete, thorough and reliable audit.
- In the said complete, thorough and reliable audit,
the following were discovered:
a. The public officer indeed receive the public
funds or property. That is, he is an
accountable public officer
b. The said public funds and property was
missing, or there was a shortage, or he cannot
produce it, and
c. The said public officer cannot give a justifiable
reason, a legal excuse for the said shortage
or missing of public funds or property.”
If all of these are present, the Supreme Court says
that there arises the prima facie presumption that there is
malversation of public funds or property. Therefore, there
may NOT be direct evidence to convict one for malversation
of public funds or property. Obviously, there cannot be any
witness, because when you say direct evidence, there is a
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witness. Of course, he would not let anyone see him
malversing the funds. It suffices in the audit, these three
things were discovered. If these three are discovered, then
there arises the prima facie presumption that there is a so-
called MALVERSATION OF PUBLIC FUNDS OR
PROPERTY
ILLUSTRATION:
Q: What if a man was walking, in the middle of the night, a
police officer who was conducting a patrol saw something
bulging on his waist. The police officer stopped him and
frisked him and there, they saw a firearm. They ask for the
license, the said man could not produce the license for the
said firearm. He was arrested for illegal possession of
unlicensed firearm, and the firearm was confiscated. During
the trials of the case, the fiscal move for subpoena for the
custodian of the said firearm. The custodian appeared but
failed to bring the firearm. He had already sold the said
firearm confiscated. What crime is committed by the said
custodian?
A: He is liable for Malversation under Article 217.
Q: His contention was, it cannot be malversation, because
the firearm was owned by a private person. It is not a public
property, therefore I cannot be held liable for malversation.
Is the contention correct?
A: His contention is wrong. The said firearm
has already been confiscated by public
authority, therefore it is now deemed,
CUSTODIA LEGIS. The moment it is in
custodialegis, it loses its character as a private
property and it now assumes a character of a
public property. Hence the crime committed is
Malversation.
Q: What if, there was this collecting officer, a cashier, and
there were many persons paying. And the long line persons
paying, one cashier said that he needed to answer the call
of nature, and so he asked another fellow cashier to look
after his drawer, and so, he left and went to the restroom.
But he also left the key of his drawing on the key holder. And
so, the moment he left, his fellow cashier went to his drawer
and opened it and took Php 2000 from the collection of A on
the same day. Then A arrived, and he then accepted
collections. In the afternoon, there was a surprise audit
coming from the COA. and it was discovered that based on
the receipts, The php 2000 were missing from the collection
of A. Therefore, A was charged. What crime if any, has been
committed by A? Is A liable for malversation?
A: Yes, he is liable for malversation through
negligence. That is the passive act. That is through
his abandonment or negligence, he permitted
another person, Cashier B to misappropriate a part
of his collection for the day. Hence A is also liable
for Malversation. Not B, but A, the one who went to
the restroom, because he is the one accountable
for the said public funds in his drawer.
That other person, B, who took the said property is
liable for qualified theft. because he was entrusted
with the same funds, and he took the same funds.
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Q: What if, in the same problem, after the COA auditor found
out that Php 2000 was missing, A was charged with
Malversation of public funds and property through dolo. So,
in the information, it was stated that he is the one who
misappropriate, appropriates or has taken the said public
funds, and so he was charged with Malversation through
dolo, through deliberate intent. That was the case filed
against him because they did not know that it was B who
took the money. So, the presumption is that, he is the one
who took the money, who appropriated it. During the trial of
the merits, during the presentation of the defense evidence,
when it was already A’s term to testify, it was divulged or
disclosed to the court that it was in fact another cashier, B
who misappropriated the said funds through the negligence
of A. And by reason of this evidence presented in court, the
said judge, convicted A of Malversation through culpa, in an
information of malversation through dolo. Is the judge
correct? can he convict A?
A: Yes, the judge is correct. The reason is that,
according to the Supreme Court, whether
Malversation is committed through deliberate intent
or culpa, DOLO and CULPA are merely modalities
of committing the crime. Nevertheless, it is still
malversation, and if you look at Article 217, whether
malversation is committed through deliberate intent
or through negligence, they just have one and the
same penalties. Further, the Supreme Court said,
Malversation through negligence or culpa is
NECESSARILY INCLUDED in Malversation
through deliberate intent or dolo. Hence, even if the
information is Malversation through dolo, one can
be convicted of Malversation through Culpa or
Negligence.
Q: What if, there was this rape in a warehouse, in the course
of the said rape, dangerous drugs worth millions of pesos
were confiscated and they were placed in the PDEA
warehouse. The persons therein were charged with illegal
possession of dangerous drugs. In the course of the hearing
in this possession of dangerous drugs, the court sent a
subpoena to the PDEA custodian, to bring to the Court the
said dangerous drugs which were confiscated. And so, on
the designated day, the said PDEA agent boarded all the
dangerous drugs confiscated in a PDEA van and off he went
to the Court. However, before the PDEA agent could reach
the court, here comes two motorcycles who went in and fired
at him, and he fell on his seat, lifeless. And then, a big vehicle
arrived at the back of the said PDEA van and took all the
said dangerous drugs. Now the said PDEA agent was
brought into the hospital and despite the fatal wound,
because of the immediate medical intervention, he survived.
Is he liable of any crime?
A: Yes, he is liable of Malversation of public
funds or property under Article 217 through
Negligence. There was inexcusable negligence
on his part said the Supreme Court, because all by
himself, carried the millions worth of dangerous
drugs in the PDEA van, considering the value of the
said dangerous drugs, he should have asked for
back up. Yes, he survived, but he was charged with
Malversation of public funds or property through
CULPA.
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4. He applies the same to a public use other than that for

Q: What if, there is a public officer whose office is in pasay. which such fund or property has been appropriated by
He is going to have a meeting in Caloocan. And so he went law or ordinance.
to Caloocan in one afternoon and attended the said meeting.
He had to go to pasay in order to make a report, However, ILLUSTRATION:
the traffic was heavy, so instead of using his car on the way Q: What if a public officer has under his administration public
back, he rode the LRT. Upon reaching the office, he realized funds which is for a certain project. So let us say that X is the
that his bag was opened, and the cellphone which was city administrator. Under his administration, there was
__5:17___ by the Government was already gone. By reason Php500,000, the said Php 500,000 was for the construction
thereof, he was charged with Malversation under Article 217 of a bridge between one barangay to another barangay.
because through his negligence, the cellphone which was Then suddenly there was a typhoon, a big typhoon and many
____ to him by the Government and for which he is of the constituents were rendered homeless. And so, they
accountable to the Government was now missing. It was had to stay in the basketball court, they need food, clothing,
taken or stolen by somebody. Is he liable? He was convicted water and other basic needs. And so, the city administrator
by the SandiganBayan but when it came to the Supreme made use of the Php 500,000 under his administration to buy
Court, the Supreme Court acquitted him. these basic needs of his constituents. Is the said public
officer, the city administrator liable of any crime?
A: According to the Supreme Court, there was no
negligence on the part of the said public officer. He A: Yes, he is liable for technical Malversation
cannot be faulted for having taken the LRT under Article 220.
because of the said heavy traffic. It cannot be said
that there was negligence on his part in placing the BEST EXAMPLE:
cellphone inside his bag, because, where else GMA and other head of Philhealth before was
would you place a cellphone but inside the bag for charged by Frank Chavez because of Technical
safekeeping. It would have been different while on Malversation because of transfer of COA funds, which was
board, he was using the said cellphone. Hence, the used for Philhealth purposes during the elections. And so,
Supreme Court said, there was no negligence and because of that, according to Frank Chavez, they are liable
therefore, although convicted by the for Malversation. They were charged with Technical
SandiganBayan, he was acquitted by the Supreme Malversation. But their contention was there was a law that
Court. allowed it. If there was a law that allowed it, then, there was
no violation. But, if there is no law, there is an illegal transfer
ARTICLE 218 – FAILURE OF ACCOUNTABLE OFFICER of funds, therefore, technical Malversation will resolve.
TO RENDER ACCOUNTS
ELEMENTS: ARTICLE 217 ARTICLE 220
1. Offender is a public officer, whether in the service or The public officer The public officer did not
separated therefrom misappropriates the fund misappropriate the funds
2. He must be an accountable officer for public funds or for his personal use. for his personal use, he
property used it for another public
3. He is required by law or regulation to render accounts purpose other than that
to the Commission on Audit, or to a provincial Auditor which has been
4. He fails to do so for a period of two months after such appropriated by law or
accounts should be rendered ordinance that is why it is
TECHNICAL
ARTICLE 219 – FAILURE OF RESPONSIBLE PUBLIC MALVERSATION – the
OFFICER TO RENDER ACCOUNTS BEFORE LEAVING offense is on the
THE COUNTRY technicality of the use of
ELEMENTS: funds.
1. Offender is a public officer
2. He must be an accountable officer for public funds or The public officer has in his The public officer has in his
property possession public funds or possession public funds or
3. He must have unlawfully left (or be on the point of property for safekeeping. It property is only under his
leaving) the Philippines without securing from the is under his custody and administration. Not for
Commission on Audit a certificate showing that his control and therefore it is for safekeeping, but only for
accounts have been finally settled his safekeeping and he has the purpose of
the obligation to account it administrating it that is, for
ARTICLE 220 – ILLEGAL USE OF PUBLIC FUNDS OR later on to the Government applying it for the purpose
PROPERTY (Technical Malversation) which it has been
ELEMENTS: appropriated by law or
1. Offender s a public officer ordiance
2. there is a public fund or property under his
administration ARTICLE 221 – FAILURE TO MAKE DELIVERY OF
3. Such public fund or property has been appropriated by PUBLIC FUNDS OR PROPERTY
law or ordinance ELEMENTS:

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1. That the public officer has government funds in his
possession
2. That he is under obligation to make payments from such
funds
3. That he fails to make payment maliciously
Punishable acts:
1. Failing to make payment by a public officer who is under
obligation to make such payment from Government
funds in his possession
2. Refusing to make delivery by a public officer who has
been ordered by competent authority to deliver any
property in his custody or under his administration
ARTICLE 222 – OFFICERS INCLUDED IN PRECEDING
PROVISIONS
Private Individual who may be liable under Art. 217-221:
1. Private Individual who in any capacity whatsoever, have
charge of national, provincial or municipal funds,
revenue or property
2. Administrator, depository of funds or property attached,
seized or deposited by public authority even if such
property belongs to a private individual
3. Those who acted in conspiracy in malversation
4. Accomplice and accessories to malversation
Can private property be the subject of Malversation?
- YES, under the 2nd act in Article 222, that is when
the said funds or property has been attached, seized
or deposited by public authority, it now becomes in
custodialegis and it now assumes the character of
being public funds or property. If any are
misappropriated, then the crime committed is
Malversation and not theft.
INFIDELITY IN THE CUSTODY OF PRISONERS (Articles
223, 224, 225)
ARTICLE 223 – CONNIVING WITH OR CONSENTING TO
EVASION
ELEMENTS:
1. Offender is a public officer
2. He has in his custody or charge a prisoner, either
detention prisoner or prisoner by final judgment
3. Such prisoner escaped from his custody
4. That he was in connivance with the prisoner in the
latter’s escape, or is with his consent
ARTICLE 224 – EVASTION THROUGH NEGLIGENCE
ELEMENTS:
1. Offender is a public officer
2. He is charged with the conveyance or custody of a
prisoner, either detention prisoner or prisoner by final
judgment
3. Such prisoner escapes through his negligence
ARTICLE 225 – ESCAPE OF PRISONER UNDER THE
CUSTODY OF A PERSON NOT A PUBLIC OFFICER
ELEMENTS:
1. Offender is a private individual
2. Conveyance (or charge) of custody of prisoner or
person under arrest is confided to him
3. Prisoner or person under arrest escapes
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4. Offender consents to the escape of the prisoner or
person under arrest or that the escape takes place
through his negligence
Whether it be under Art. 223, 224, 225, the offender
infidelity in the custody of prisoners is one who has been
entrusted with the custody and charge of the prisoner.
Whether the prisoner is a prisoner convicted by final
judgment or a detention prisoner. He must be charged, he
must be the custodian of the said prisoner because the
essence of the crime is the violation of the trust reposed on
him. Because prisoners are accountabilities of the
Government.
Can a private individual commit infidelity?
- Yes, under Art. 225. If he is entrusted with the
custody of this prisoner and the prisoner escapes,
either in connivance with him or through his
negligence, then his liability is infidelity in the
custody of prisoners
ILLUSTRATION:
Q: A has been charged with illegal sale of dangerous drugs.
She is behind bars, it is a non-bailable offense, and
therefore, while the case is ongoing, she is behind bars. So,
it was the hearing date, she was accompanied by the jail
warden, the jail guard to the court, and after trial, there was
this husband and two children of the said woman who was
in jail. The husband and two children talked, and when the
said woman prisoner was about to be brought to jail, the
husband talked to the jail warden. He invited the jail warden
for a merienda, in a canteen inside the hall of justice. And
so, the jail warden saw nothing wrong and so, he had
merienda with the woman prisoner, the husband and the two
children. The handcuffs had to be removed for the woman
prisoner to eat. After eating, the woman prisoner said that
she needed to answer the call of nature, and so, she went to
the restroom, also inside or within the hall of justice. The jail
guard allowed her inside while the jail guard was left outside,
waiting. Hours passed, no woman prisoner came out. It so
happens that the said husband put some disguise for the
woman to use so that she could escape without being
noticed by the said jail guard, and woman prisoner was able
to escape without being noticed by the said jail guard. Is the
said jail guard liable for infidelity in the custody of prisoner,
or is it a mere laxity which would not amount to infidelity in
the custody of prisoner?
A: People vs. Nava – The Supreme Court said that
mere laxity would not amount to negligence under
Art. 224. Because according to the Supreme Court
in that old case, the negligence being required in
order that a public officer may be entitled, must be a
deliberate non-performance of his duty. Here, it is
only a mere laxity on the part of the said public
officer for not having accompanying the said woman
in the rest room.
Rodriguez vs. SandiganBayan(new case) – The
Supreme Court said otherwise. According to the
Supreme Court, the moment that a public officer, a
jail warden has accompanied a prisoner outside jail,
he must not have lost sight of the said prisoner. The
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only obligation of the said jail warden after the trial
was to bring her back to the court. The fact that the
said jail guard allowed himself to have a merienda,
and even allowed the woman prisoner to go to the
restroom alone, there was laxity on the part of the
said jail guard. The Supreme Court said, LAXITY is
a deliberate non-performance of his official duty as
the guard of the said prisoner, thereby amounting to
infidelity in the custody of prisoner under Art. 224.
INFIDELITY IN THE CUSTODY OF DOCUMENTS
(ARTICLES 226, 227, 228)
ARTICLE 226 – REMOVAL, CONEALMENT OR
DESTRUCTION OF DOCUMENT
ELEMENTS:
1. Offender is a public officer
2. He removes, destroys, or conceals documents or
papers
3. Said documents or papers should have been entrusted
to such public officer by reason of his office
4. Damage, whether serious or not, to a third party or to
the public interest should have been caused
Under Article 226, in order for infidelity in the custody of
documents to arise, it is necessary that there be damage
caused to a third person or to the public interest. If damage
is serious, the penalty is QUALIFIED, therefore, the damage
may or may not be serious provided that there is damage,
the crime will arise.
DAMAGE IS NECESSARY in order to give rise to
infidelity in the custody of documents.
ARTICLE 227 – OFFICER BREAKING SEAL
ELEMENTS:
1. Offender is a public officer
2. He is charged with the custody of papers or property
3. These papers or property are sealed by proper authority
4. He breaks the seals or permits them to be broken
Under Article 227, officer breaking the seal, infidelity in
the custody of prisoners to arise, even without damage
caused to a third party or to public interest. Damage is NOT
an element.
MERE BREAKING of the seal of the document will
already consummate the crime.
ARTICLE 228 – OPENING A CLOSED DOCUMENT
ELEMENTS:
1. Offender is a public officer
2. Any closed papers, documents, or objects are entrusted
to his custody
3. He opens or permits to be opened said closed papers,
documents or objects
4. He does not have proper authority
Infidelity in the custody of documents, the public officer
has been entrusted with papers, documents or objects,
which have been closed by proper authority and the said
public officer opened the said closed document or permitted
others to open the same. Again, Damage is NOT an
element.
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MERE ACT OF OPENING the said closed document
will give rise to the crime.
ILLUSTRATION:
Q: What if A has been charged with illegal sale of dangerous
drugs. The case was on trial, during the trial of the case, the
fiscal presented the first police officer who acted as the
poseur buyer in the course of the testimony of the police
officer, the fiscal produced and showed to him for
identification the marked money. So the marked money
consists of 5, 100 peso bill. The fiscal presented it to the
police and the police identified it as indeed the marked
money because of the serial numbers and because of the
markings, and thereafter the marked money have been
marked as Exhibit A, B, C, D, E for the prosecution. After the
trial, they were placed inside an envelope and given to the
clerk of court, the custodian of the evidence which have
already been marked. So trial ended that day, it was now
lunch time. The clerk of court was on her table and so the
vendor arrived. The clerk of court wanted to buy lunch and
she said, how much. The vendor said it costs 50 peso. The
clerk of court pulled out her money; it was a 1000 peso bill.
The vendor said, “anglakinamanniyan, walaakongpanukli”
And so, by reason thereof, he gave it back to the clerk of
court. The clerk of court said that she had no smaller bills,
and he remembered the exhibits. And so, he took 100 peso
bill, marked as Exhibit E. And she paid it to the vendor and
the vendor gave him the change of 50 peso. After eating,
before 1:00, the said clerk of court immediately went outside
to change her big 1000 peso bill into smaller bills. When he
now has these smaller bills, he got one 100 peso bill and
marked it as Exhibit E and then he signed it and placed it
inside the envelope. Here comes the next hearing date, on
the next hearing date, another police officer was presented,
the fiscal produced the said documentary exhibits, the
marked money and asked it from the clerk of court. So the
fiscal showed it to the police officer, the police officer
identified Exhibits A, B, C, D. However, when it comes to
exhibit E, the police officer said, “Your Honor, it has a
different serial number from the one in our sworn statement”
and so because of that, an investigation happened and the
court learned that it was taken by said clerk of court and used
in buying food. What crime, if any is committed by the said
clerk of court? Is it malversation or is it infidelity in the
custody of documents?
A: The crime committed is infidelity in the
custody of documents under Art. 226 by the
public officer in destroying the said document.
This marked money becomes documentary
evidence, the moment they have been marked as
exhibits. Money here is not used as a medium of
exchange, but as documents because they have
been marked as documentary evidence. The
moment they have been taken, removed,
concealed or destroyed, the crime committed is
infidelity in the custody of documents because the
clerk of court is the custodian of the documentary
exhibits. If money is used, not as a medium of
exchange, but like this, as documentary exhibits or
any other use other than as a medium of exchange,
the one who malverse, or use it is the custodian of
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the said documents, the crime is infidelity in the
custody of documents and NOT malversation.
When the clerk of court took the 100 peso bill, he
destroyed the exhibit, the documentary exhibit of
the said prosecution and the prosecution was
seriously damaged interface.
REVELATION OF SECRETS (Article 229-230)
ARTICLE 229 – REVELATION OF SECRETS BY AN
OFFICER
Punishable acts:
1. By revealing any secrets which affect public interest
learned by him in his official capacity
ELEMENTS:
(1) Offender is a public officer
(2) He knows of a secret by reason of his official
capacity
(3) He reveals such secret without authority or
justifiable reasons
(4) Damage, great or small, is cause to the
public interest
It is necessary that there be Damage caused, whether
serious or not.
2. Wrongfully delivering papers or copies of papers of
which he may have charge and which should not be
published thereby causing damage, whether serious or
not, to a third party or to public interest.
ELEMENTS:
i. Offender is a public officer
ii. He has charge of papers
iii. Those papers should not be published
iv. He delivers those papers or copies thereof to
a third person
v. The delivery is wrongful
vi. Damage is caused to public interest
ARTICLE 230 – PUBLIC OFFICER REVEALING
SECRETS OF PRIVATE INDIVIDUAL
ELEMENTS:
1. Offender is a public officer
2. He knows of the secrets of private individual by reason
of his office
3. He reveals such secrets without authority or justifiable
reason
Damage is NOT an element in Article 230.
ARTICLE 231 – OPEN DISOBEDIENCE
ELEMENTS:
1. Offender is a judicial or executive officer
2. There is judgment, decision, or order of a superior
authority
3. Such judgment, decision or order was made within the
scope of the jurisdiction of the superior authority and
issued with all the legal formalities
4. Offender without any legal justification openly refuses to
execute the said judgment, decision or order which he
is duty bound to obey
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Open Disobedience is committed by any judicial or
executive officer who shall openly refuse without any legal
motive to execute a judgment or decision rendered by a
superior authority in the exercise of his duty and in the legal
infirmities of the law.
ILLUSTRATION:
Q: What if in the case of Duterte, the sheriff wishes to
execute a writ of execution and cause the squatters to leave
the place because of the execution issued by the court has
to be implemented. Had not the sheriff performed the said
act, is he liable of any crime? Had the sheriff refused to
execute the writ of execution issued by the said judge? Is he
liable of any crime?
A: Yes, he is liable of Open Disobedience under
Article 231. He openly refused to execute a writ of
execution issued by a judge.
ARTICLE 232 – DISOBEDIENCE TO ORDER OF
SUPERIOR OFFICER, WHEN SAID ORDER WAS
SUSPENDED BY INFERIOR OFFICER
ELEMENTS:
1. Offender is a public officer
2. An order is issued by his superior for execution
3. He has for any reason suspended the execution of such
order
4. His superior disapproves the suspension of the
execution of the order
5. Offender disobeys his superior despite the disapproval
of the suspension
The offender refuses to disobey the suspension of the
said order which was disapproved by the said public officer.
ARTICLE 233 – REFUSAL OF ASSISTANCE
ELEMENTS:
1. Offender is a public officer
2. Competent authority demands from the offender that he
lend his cooperation towards the administration of
justice or other public service
3. Offender fails to do so maliciously
Public officer who shall fail to lend his cooperation
towards the administration of justice or any other public
service despite demand by competent authority.
ILLUSTRATION:
Q: A raped B. B was treated by a medico legal officer at the
PNP. This medico legal officer who has examined A, issued
a medical certificate, And so in the case filed by B against A
for this so-called “rape”, the fiscal moved that the subpoena
(adjustificandum) be sent to this public officer, the medico
legal office who examined the rape victim. However, despite
receipt of the said subpoena, the medico legal officer failed
to appear. He did not appear without any justifiable reason
at all. The said prosecutor move again for the issuance of
another subpoena, a second subpoena. Again, despite the
receipt, the medico legal officer failed to appear in court and
testified and failed to give the copy of the medico legal
certificate. What crime if any has the said medico legal
officer has committed?
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A: He is liable for Refusal of Assistance under
Article 233. It is committed by a public offcer that despite
demands of the public authority shall fail to lend his
cooperation toward the administration of justice or any other
public service. Thereby, causing damage serious or not, to
public interest.
NOTE: If the damage is serious, the penalty is QUALIFIED.
ARTICLE 234 – REFUSAL TO DISCHARGE ELECTIVE
OFFICE
ELEMENTS:
1. Offender is elected by popular election to a public office
2. He refuses to be sworn in or to discharge the duties of
the said office
3. There is no legal motive for such refusal to be sworn in
or to discharge the duties of said office
This is a crime which cannot be committed in Philippine
Jurisdiction. Refusal to discharge public duties is committed
by any person entitled to a public office by means of popular
election, refuses to assume to assume the powers and
duties of his office. He refuses to be sworn in. This will not
happen in our lifetime. This will never happen in the
Philippine Jurisdiction because here, even if he did not win
in the election, he wanted to hold office.
ARTICLE 235 – MALTREATMENT OF PRISONERS
ELEMENTS:
1. Offender is a public officer or employee
2. He has under his charge a prisoner or detention
prisoner
3. He maltreats such prisoner either of the following
manners:
a. By overdoing himself in the correction or
handling of a prisoner or detention prisoner
under his charge either:
i. By the imposition of punishments not
authorized by the rules and regulations
ii. By inflicting such punishments (those
authorized) in a cruel or humiliating
manner
b. By maltreating such prisoner to extort a
confession or to obtain some information from
the prisoner
Who is the offender?
- Any public officer or employee
Who is the offended party?
- He must be a prisoner
In order to be considered a prisoner, it is necessary that the
said person has already been arrested, brought to the PNP
station and he has been incarcerated. If he is not a prisoner,
then, the crime can be physical injuries, whatever injuries
that may have been sustained by the prisoner, but NOT
maltreatment of prisoners
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What if maltreatment does not only include physical
maltreatment. It shall also include moral, emotional,
psychological maltreatment because the law uses the
phrase physical injuries or damage caused.
ILLUSTRATION:
Q: What if A has just withdrew his money from her ATM
account, she placed the money inside her bag and she was
already walking towards home when suddenly here comes
X. X snatched the handbag with the money. A police officer
passing by saw the incident and on boarded their mobile
patrol. They were able to arrest the man, took the bag and
returned it to the said victim. Thereafter, they placed X inside
the mobile patrol. While inside, they kicked, mauled the man.
And so, the man suffered less serious physical injuries. What
crime is committed by the said police officers?
A: The crime committed is less serious physical
injuries. It is not maltreatment of prisoners because the said
person, X, is not yet a prisoner. He is only a person under
arrest because he has just been arrested for having
committed a crime, but he is not yet a prisoner. In order to
be considered as a prisoner, he must be brought to the PNP
station, taken a picture, left view, side view, front view,
thumbmark and incarcerated. He is now an accountability of
the Government, he is now a prisoner. But before that, he is
not yet a prisoner. He is only a person under arrest. That is
why in the problem, the police officers are liable only for less
serious physical injuries and not of maltreatment of
prisoners.
Q: What if in the same problem, they chased the man. They
were able to catch the said man and brought him to the PNP
station. Booked him and incarcerated him, and all the things
needed to be done to a prisoner. Later, he was brought out
of jail for investigation to be brought in the Investigation
section. In the investigation, he was being forced to admit to
the commission of the crime. And so, by reason thereof, the
police officer boxed him and gave him a huge black eye. The
left eye suffered so much that he lost sight, amounting to
serious physical injuries. What are the crimes committed by
the police officer?
A: Two crimes – Maltreatment of Prisoners and
Serious Physical Injuries.
Maltreatment of Prisoners because he is a prisoner
who was maltreated in order to extort a confession
and Serious physical injuries because by reason of
the injury inflicted, he lost an eye.
Q: Are you going to complex them? because a single act
constitute a grave and less grave felony, are you going to
complex them under Art. 48?
A: No. You cannot complex them. Because under
Article 235, it is expressly provided that the liability for
maltreatment of prisoners shall be in addition to the
liability for any other physical injuries or damage
caused. Therefore two crimes will be charged against
the police officer.
There is also a violation of R.A. 9745, Anti-Torture
Act, because under Section 14 of the Anti-Torture Act,
Torture shall not absorb and shall not be absorbed by
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any other crime committed as a consequence.
Therefore, he can also be held liable under the so-
called Anti-Torture Law.
ARTICLE 236 – ANTICIPATION OF DUTIES OF A PUBLIC
OFFICE
ELEMENTS:
1. That the offender is entitled to hold a public office or
employment either by election or appointment
2. Shall assume the performance of the duties and powers
of a public official or employee
3. Without being sworn into office or having given the bond
required by law
ARTICLE 237 – PROLONGING PERFORMANCE OF
DUTIES AND POWERS
ELEMENTS:
1. That the offender is holding a public office
2. That the period allowed by law for him to exercise such
function and duties has already expired
3. That the offender continues to exercise such function
and duties
ARTICLE 238 – ABANDONMENT OF OFFICE OR
POSITION
ELEMENTS:
1. That the offender is holding a public office
2. That he formally resigns from his office
3. But before the acceptance of his resignation, he
abandons his office
Abandonment of office is committed by a public officer
who has already formally resigns from his position, and
having formally resigned from his position, he abandons to
the detriment of public service. Despite the fact that his
resignation has not yet been accepted by a superior
authority. Under Labor Law, when you are an employee,
when you file a resignation, it does not mean you are already
resigned. There must be an ACCEPTANCE from the
superior officer before it can be said that he have already
resigned.
So here, the public officer has already formally
resigned, his resignation has not been accepted, yet he
abandons to the detriment of public service. What is the
penalty?
- In the abandonment of office, the penalty is
QUALIFIED if the purpose of the said public officer
is to evade the prosecution punishment of the crime
involving violation of Title 1 – Book 2 (Crimes
against National Security), or Chapter 1 – Title 3 of
Book 2 (Rebellion, Coup d’etat, Sedition, etc.)
ARTICLE 239 – USURPATION OF LEGISLATIVE
POWERS
ELEMENTS:
1. That the offender is an executive or judicial officer
2. That he:
a. Makes general rules and regulations beyond the
scope of his authority, or
b. Attempts to repeal a law, or
c. Suspend the execution of thereof
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NOTE: It can only be committed by an executive or judicial
officer
ARTICLE 240 – USURPATION OF EXECUTIVE
FUNCTIONS
ELEMENTS:
1. That the offender is a judge
2. That the offender:
a. Assumes the power exclusively vested to
executive authorities of the Government, or
b. Obstructs executive authorities from the lawful
performance of their functions
NOTE: It can only be committed by a Judge
ARTICLE 241 – USURPATION OF JUDICIAL FUNCTIONS
ELEMENTS:
1. That the offender is holding office under the Executive
Branch of the Government
2. That he:
a. Assumes the power exclusively vested in the
Judiciary, or
b. Obstructs the execution of any order or decision
given by a judge within his jurisdiction
NOTE: It can only be committed by a public officer of the
Executive Branch of the Government
Therefore, if the person who assumes judicial
power does not belong to the Executive Branch, but belongs
to the legislative branch, the crime is not Usurpation of
Judicial Function, but USURPATION OF PUBLIC
FUNCTION AND OFFICIAL AUTHORITY under Article
177, because Article 239, 240 and 241 are specific as to the
offenders.
So, let us say, in the one who encroached upon the
powers of the Judge, does not belong to the executive
branch but he is legislator, it cannot be considered as
usurpation of judicial functions, rather it will beUsurpation Of
Public Function And Official Authority Under Article 177.
ARTICLE 242 – DISOBEYING REQUEST OF
DISQUALIFICATION
ELEMENTS:
1. That the offender is a public officer
2. That a proceeding is pending before such public officer
3. That there has been a question regarding the
jurisdiction brought before the proper authority
4. There is a question brought before the proper authority
regarding his jurisdiction, which is yet to be decided
ARTICLE 243 – ORDERS OR REQUESTS BY EXECUTIVE
OFFICERS TO ANY JUDICIAL AUTHORITY
ELEMENTS:
1. That the offender is an executive officer
2. That the offender addresses any order or suggestion to
any judicial authority
3. That the order or suggestion relates to any case or
business within the exclusive jurisdiction of the courts of
justice
ARTICLE 244 – UNLAWFUL APPOINTMENTS
ELEMENTS:
1. Offender is a public officer
2. He nominates or appoints a person to a public office
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3. Such person lacks the legal qualification thereof
4. Offender knows that his nominee or employee lacks the
qualifications at the time he made the nomination or
appointment
ARTICLE 245 – ABUSES AGAINST CHASTITY
ELEMENTS:
1. That the offender is a public officer
2. That he solicits or makes any indecent or immoral
advances to a woman
3. That the offended party is a woman who is:
a. Interested in matters pending before the public
officer for his decision or where the public officer
is required to submit a report or to consult with a
superior officer; or
b. Under the custody of the offender, who is a
warden or other public officer directly charged
with the care and custody of prisoners or
persons under arrest; or
c. The wife, daughter, sister or any relative falling
within the same degree of affinity of the person
under the custody and charge of the offender
(Mother is not included here)
How are abuses against chastity is committed?
- There are three acts. (Refer to the elements)
1. Public officer solicits or makes any indecent
or immoral advances to a woman who is
interested in matters pending before his for
his decision or where the public officer is
required to submit a report or to consult with
a superior officer
2. Warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest, and he
solicits or makes any indecent or immoral
advances to a woman
3. Warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest, and the
said officer makes any indecent or immoral
advances to the wife, daughter, sister or
any relative falling within the same degree
of affinity of the male prisoner.
Who is the offender?
- He must be a public officer because there must be
abuse of public office in making immoral or indecent
advances.
Essence of the crime is taking advantage of one’s
position in soliciting or making immoral or indecent
advances.
Mere act of soliciting or making immoral and indecent
advances will already give rise to the crime. It is not
necessary that the woman will comply with the said
solicitation or immoral or indecent advances.
The solicitation must not be the gospel type of
solicitation. It must be bad, persistent, threatening such that
if the woman would not comply then it would adverse on her
part.
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If a jail warden impregnated a female detainee, even if they
love one another, still liable because detainees are
liabilities of the state.
TITLE EIGHT
CRIMES AGAINST PERSONS (ARTICLES 246 – 266-A)
ART 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 legitimate other descendant, or
legitimate spouse of the accused
Parricide is committed when a person kills his father,
mother, child, whether legitimate or illegitimate,
legitimate other ascendant, legitimate other
descendant, or legitimate spouse. Therefore the
offended party or deceased or the victim is specified, he
must be the father, mother, child whether legitimate or
illegitimate, legitimate other ascendant, legitimate other
descendant, or legitimate spouse.
Parricide is a crime based on relationship.
What kind of relationship?
First, it must be a legitimate relationship except
in the case of parent and child.
Second, the said relationship must be in the
direct line
Third, the relationship must be by blood
(grandfather killed a grandson, a mother killing
a son, a son killing a father)
Q: So a father killed an illegitimate son. What crime is
committed?
A: It is parricide. Although the crime is based on
legitimate relationship, the exception is in case of
children, whether legitimate or illegitimate.
Q: A brother killed another brother. Is the crime committed
parricide?
A: No, the crime committed is murder or
homicide, as the case may be and not parricide
because the relationship between a brother and
another brother is in the collateral line and not in
the direct line.
Q: What if a stepfather killed his stepson?
A: The stepfather is not liable for parricide. It
can either be murder or homicide, as the case may
be, because their relationship is not based on
blood.
Again, the relationship must be
legitimate, in the direct line and by blood.
In Parricide, the circumstance which will qualify is the
relationship, therefore relationship between the offender
and the offended party must be stated in the
information.
Q: Let us say that the husband killed the wife. In the
information filed by the fiscal, the fiscal failed to state that the
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husband is the legal husband of the said victim. However,
during trial, by virtue of a certificate of marriage, it was
proven that the accused was the legal husband of the said
victim-wife. Can the husband be convicted of parricide?
A: No, the husband cannot be convicted of
parricide. This is because the relationship was not
alleged in the information although proven during
trial. Since the relationship between the husband
and the wife is not alleged in the information,
although proven during trial, he cannot be
convicted of parricide. It can only be murder or
homicide, as the case may be.
Q: What if a husband wanted to kill his wife. So he has a
mistress, the husband wanted to dispose his wife. However,
he cannot do it on his own and so the husband hired a high-
profile killer, he paid the man 100,000 pesos to kill the wife.
And so the man conducted surveillance on the wife, checked
the itinerary of the wife and so when the wife was getting out
of the grocery, here comes the killer. The killer, on board a
motorcycle, went directly to the wife, shot her and off he
went. The wife died. What crime/crimes is/are committed?
A: The husband is liable for principal but said
killer is liable for murder. Conspiracy will not lie.
Although they conspired for the killing of the wife,
the husband, being the principal by inducement
and the killer, being the principal by direct
participation, conspiracy will not lie. This is because
the circumstance which qualifies parricide, the
relationship, is personal to the husband and cannot
be transferred to a stranger. That is why there will
two informations filed, one is parricide as against
the husband as a principal by inducement and the
other one is murder as against the killer.
ART 247 – DEATH OR PHYSICAL INJURIES INFLICTED
UNDER EXCEPTIONAL CIRCUMSTANCES
ELEMENTS:
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 the said legally married spouse 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 to the infidelity of the
other spouse.
FIRST REQUISITE/ELEMENT:
Under the first element, it is required that the legally
married spouse surprises the other spouse while in
the actual act of sexual intercourse with another
person. So note the surprising must be in the
actual act of sexual intercourse and NOT
before, NOT after.
If you will read the book of Reyes, Justice Laurel,
naghinanakitsya. Sabinya, “Why? Why should it be
in the actual act of sexual intercourse, you already
saw your spouse with another man, why wait for the
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sexual intercourse? You know it will happen, why
wait for it for Article 247? This is what Justice Laurel
said. But the Supreme Court said no, the surprising
must be in the act of sexual intercourse with
another person. Not before, not after, not during the
preliminaries.
SECOND REQUISITE/ELEMENT:
The second element requires that the said legally
married spouse kills any or both of them or he
inflicts serious physical injuries upon any or both
of them. Again, while in the act of sexual
intercourse or immediately thereafter. There is no
question as to the “actual act of sexual
intercourse” but what about “immediately
thereafter”?
What does the phrase “immediately thereafter”
mean?
The Supreme Court said, “immediately
thereafter” means there must not be lapse of
time between the surprising and the killing or
infliction of serious physical injuries. Therefore
the surprising and the killing or infliction of
serious physical injuries must be a continuing
process.
Q: What if the husband arrived home and the wife arrived
home from the market. She was about to go the kitchen
when suddenly, she heard voices in the master’s bedroom
and so she opened the said master’s bedroom and saw her
legal husband in actual sexual intercourse with another
person. Notice that the law says, “other person” which
means it could be a man or a woman. Upon seeing that, the
wife who still has a knife in the basket, immediately went
towards the husband and stabbed him. The woman fled. The
husband died. Of what crime would you prosecute the said
wife? The wife is liable for parricide under Article 246 for
having killed her husband. If you are the counsel of the said
wife, what defense would you put up in order to free your
client from criminal liability?
A: Article 247 or Death under exceptional
circumstances. The Supreme Court said that
Article 247 is not a felony. Article 247 is a privilege,
in fact is it a defense. If Article 247 is invoked, the
accused is free from criminal liability. It is an
absolutory cause, an exempting circumstance. The
Supreme Court said that the penalty stated therein,
destierro, is not really a penalty on the legally
married spouse who killed the other spouse. It is
not a penalty but it is more of a guard, a privilege
for him so that he may be free from any retaliation
of any of the family of the victim. So destierro here
is not really a penalty. Again, Article 247 is not a
felony. It is a defense, a privilege; it is an exempting
circumstance or an absolutory cause.
PEOPLE v. ABARCA
In this case, there was this student reviewing for the bar.
There were already rumors that his wife was having an affair.
So one time, he went home unannounced. Upon his arrival,
he saw his wife in sexual intercourse with another man. The
man jumped out the window. The husband wanted to kill the
man but he had no weapon at the time. The man went away.
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It took the husband an hour before he was able to find a
weapon and upon finding a weapon, he went directly to the
whereabouts of the man, the lover of the wife and killed the
man. It took him one hour. The killing took place an hour, not
in the actual sexual intercourse, but is it immediately
thereafter? Despite the fact that one hour had lapsed, would
it be within the meaning of immediately thereafter?
The Supreme Court, in this special case, said yes.
According to Supreme Court, when the law uses the phrase
“immediately thereafter”; that the killing or the infliction of
serious physical injuries must take place immediately
thereafter, the law did not say that the killing must be done
instantly. According to the Supreme Court, it suffices that the
proximate cause for the said killing is the said pain and the
look on the said husband upon chancing his wife in the
basest act of infidelity. This is an exceptional case.
Why an exceptional case?
Because henceforth, after People v Abarca,
the Supreme Court has already interpreted
“immediately thereafter”, as there must be no
lapse of time between the surprising and the
killing. The surprising and the killing must be
continuous.
Legal luminaries say that this is an exceptional
case because the husband was reviewing for
the bar which is why he was given this special
_. Because in all other cases after this, the
Supreme Court is strict in implementing
“immediately thereafter”. The Supreme Court
is strict because this is not a felony, it is a
privilege therefore it must be strictly interpreted
and not liberally interpreted in favor of the
accused.
Look that if the injury inflicted by the legally
married spouse on the lover or the other
spouse, is less serious physical injuries or
slight physical injuries, he is totally free from
criminal liability. Liability will only come in if the
other spouse is killed or inflicted with serious
physical injuries.
With regards to the liability of the accused to
the injuries sustained by other people, liable to
physical injuries through negligence, as the
case maybe. There is no intent to kill the other
victims.
Note that the SC ruled that inflicting death
under exceptional circumstances is NOT
murder.
ART 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 qualifying
circumstances mentioned in Article 248
4. That the killing is not parricide or infanticide
Murder is committed by any person who shall kill
another person which will not amount to parricide or
infanticide and the killing is attended by the following
qualifying circumstances:
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1. 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 mutiny.
2. In consideration of price, reward or promise
3. By means of inundation, fire, poison,
explosion, shipwreck, stranding of a vessel,
derailment or assault upon a railroad, 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 calamities enumerated
in the preceding paragraph, or of an
earthquake, eruption of a volcano, destructive
cyclone, epidemic, or any other public
calamities.
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 (RA 7659)
These are the qualifying circumstances for murder
(See Article 14-aggravating circumstances, Book I)
Know the elements in Article 14.
All of these are aggravating circumstance under
Article 14. Note, in order to qualify a killing to
murder, only one is necessary.
If in the information, A killed B and it was attended by
treachery, in consideration of a price, reward or
promise, by means of a motor vehicle, so there are three
qualifying circumstances. Only one will suffice to qualify
the murder to killing, all the other aggravating
circumstances will be considered not as qualifying
circumstances but as mere generic aggravating
circumstances.
ART 249 – HOMICIDE
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 or infanticide.
When a person kills another person, and it is not
attended by any qualifying circumstance under Article
248, the killing is considered as Homicide under Article
249.
ART 250 – PENALTY FOR FRUSTRATED OR
ATTEMPTED PARRICIDE, MURDER OR HOMICIDE
ART 251 – DEATH CAUSED IN A TUMULTOUS AFFRAY
What is a tumultuous affray?
A tumultuous affray is a commotion, wherein
people fight in a tumultuous or confused manner
such that it cannot be ascertained or determined
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who has killed the victim or who has inflicted
physical injuries on the victim.
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.
Article 251, death in a tumultuous affray, is committed
when there are several persons who do not compose
groups which have been organized to assault and
quarrel with one another reciprocally, assaulted and
attacked each other reciprocally and in the course of the
affray, someone is killed. And it cannot be ascertained
or identified or determined who killed the victim, then the
person who inflicted serious physical injuries or those
who used violence against the said victim can be
identified.
Someone is killed. Note that he can be any person; he
can be someone from the affray, he can be a mere
passerby, he can be just someone watching the affray,
so long as he is killed in the affray and it cannot be
ascertained who killed him, then the person who
inflicted serious physical injuries on him is liable if he
can be identified. If this person cannot be identified, then
the person who used any kind of violence against him
shall be criminally liable.
ART 252 – PHYSICAL INJURIES INFLICTED IN
TUMULTUOUS AFFRAY
ELEMENTS:
1. That there is a tumultuous affray
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 thereof cannot be
identified
4. That all those who appear to have used violence upon
the person of the offended party are known.
Note that the victim here must be a participant. The law
is specific. The participants must be the one injured with
serious physical injuries or less serious physical
injuries. Not slight physical injuries.
Article 252, we have physical injuries inflicted in
tumultuous affray, is committed when in a tumultuous
affray, a participant has suffered serious physical
injuries or less serious physical injuries and it cannot be
ascertained who inflicted these injuries but the person
who used violence on the victim can be identified or
determined.
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If the injury caused to the victim is only slight physical
injuries, then no one is liable because if a person
engaged in a tumultuous affray or participated therein,
the law presumes that it is __ therefore no one is liable
if the injuries sustained is only slight physical injury and
it cannot be determined who inflicted the said slight
physical injury on the victim.
Q: There was this tumultuous affray, several people were
attacking and fighting each other. Suddenly, here comes a
balot vendor. He saw the affray. He was just there, watching,
suddenly he fell on the ground. He died because of a stab
wound. Now, it cannot be ascertained who stabbed him, so
no one saw who stabbed him. Who will be held criminally
liable?
A: Any person who inflicted serious physical
injuries on him. No one has seen also who had
inflicted serious physical injuries against him. The
any person who inflicted any violence against
him shall be criminally liable.
Q: There was this tumultuous affray, several people were
attacking and fighting each other. Suddenly, here comes a
balot vendor who saw the affray and he was just there,
watching. While he was watching the affray, one of the
participants of the affray, X, saw him and went directly to the
balot vendor and stabbed him twice. The balot vendor died.
What crime is committed? Is it under Article 251, Death in
tumultuous affray?
A: No. It is murder or homicide as the case may
be. This is because the perpetrator of the crime is
identified, ascertained or determined. Death in a
tumultuous affray under Article 251 can only be
charged if the actual perpetrator of the crime who
killed the victim cannot be ascertained or identified.
ART 253 – GIVING ASSISTANCE TO SUICIDE
TWO ACTS PUNISHABLE:
I.By assisting another to commit suicide, whether the
suicide is consummated or not; or
II.By lending assistance to another to commit suicide to
the extent of doing the killing himself.
Giving assistance to suicide – binigyan mong rope;
binigyan mo ng poison.
A friend wanted to commit suicide, he doesn’t know the
way, the means and you agreed with him, you assisted
and gave the best poison in the world. So you assisted
the said friend in committing suicide. Note that if a
person assisted in committing suicide by giving him
poison, the initiative must come from him. The desire to
kill himself must come from the victim. He wanted to
commit suicide and you merely provide assistance in
the commission of suicide.
B wanted to commit suicide, here comes A, A gave
assistance to B but B survived. B did not die. Only A is
criminally liable because suicide or attempt to commit
suicide is not a felony within Philippine jurisdiction. It is
only the one who assisted to commit suicide is criminally
liable but not the person who attempted to commit
suicide.
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Q: What if a terminally sick person with cancer, he was lying
in bed, almost lifeless and it was only a machine that was
giving life to his body. Now, the mother of the patient and
she took pity of her son because the son was agonizing and
was only breathing through the said machine. The mother
wanted to finish the suffering of the son and at the time she
visited the hospital, she turned off the machine and the son
died. He killed her son out of mercy. So it is mercy-killing or
euthanasia. Is the mother liable for giving assistance to
suicide?
A: No because the initiative to kill did not come
from the sai person who was ill. The crime
committed by the mother is parricide for killing
her son. If it were other person, it was murder.
Evidently, it was murder because there was evident
premeditation; there was thinking before doing the
act of mercy-killing.
ART 254 – DISCHARGE OF FIREARMS/ ILLEGAL
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
Q: What if there was this park. The park was full of people
and then suddenly, here comes X, X went to the park, put
out his firearm, and he fired shots in the air. What crime is
committed?
A: X committed Alarms and Scandals under
Article 155. When he fired shots in the air, his
intention was to cause disturbance of public peace
and tranquility. The firearm was not aimed towards
any person.
Q: What if X went to a public place full of people. X saw his
enemy, Y, and so to threaten Y, X pulled out his firearm,
aimed the firearm at Y in order to threaten him. X discharges
the firearm, however, with no intention to kill Y. His only
intention is to threaten Y and Y was not killed. What crime is
committed?
A: The crime committed is Article 254, Illegal
Discharge of Firearms. Illegal discharge of
firearms is committed by any person who aims and
discharges the firearm to any other person absent
the intent to kill the said person. The purpose is
merely to threaten the said person.
Q: What if in the same public place, X went there and pulled
out his firearm because he saw his enemy, Y. He aimed the
gun at Y with intent to kill, because he wanted to kill his
enemy. However, Y saw it and was able to avoid. What crime
is committed?
A: X committed attempted homicide or murder,
as the case may be. Although Y was not hit, the
fact that the said firearm was discharged with intent
to kill, it is already attempted homicide or murder,
as the case may be.
Q: What if in the said merry-making, there were so many
people. X went there. He saw his enemy Y and went directly
to Y, took out his gun and he poked the gun without
discharging. What crime is committed?
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A: The crime committed is other light threats.
So here, threatening another with a gun, without
discharging, only poking. It is other light threats. It
is not grave threats, it is not light threats. It is only
other light threats, arrestomenor.
So kapag discharge, pinutok – it could either be alarms
and scandals, illegal discharge of firearms or attempted
or frustrated murder or homicide, as the case may be.
If no discharging, only poking, or threatening with a
firearm, it is only other light threats
ARTICLE 255 – INFANTICIDE
Infanticide is the killing of a child less than three (3)
days old or less than seventy-two (72) hours. So in the case
of infanticide, it is the age of the victim that is controlling. The
victim, the child, the infant, must be less than three (3) days
old. He must be less than seventy-two hours. If it is only
three (3) days old or above it is any other crime but not
infanticide.
Who is the offender in Infanticide?
The offender can be the parents, the mother, the
father, the grandparents or it can be any other person so
long as the child is less than three (3) days old, it is
infanticide. It is the age that is controlling, not the
relationship.
ILLUSTRATION:
Q: So what if there was this woman and this woman gave
birth to a child. After giving birth to the child while the child
was only a day old, she already wanted to kill the child in
order to conceal her dishonor. However, she could not kill
the child by herself and so she asked a favor from a friend.
And so the friend arrived and both the mother and the said
friend killed the child, a day old, by suffocating the said child
with a big pillow. The child less than three days old, died.
What crime/s is/are committed?
A: The mother is liable for infanticide. The said
stranger friend is also liable for infanticide.
There was conspiracy on them. This time
conspiracy on life, both of them are liable for
infanticide under only one information. Isang
information langsa court and that is infanticide.
Both the mother and the friend are conspirators of
infanticide.
Now let us say that the mother is convicted. If the
mother is convicted, the penalty imposed by the law as
provided in Article 255 is equivalent to parricide which is
reclusion perpetua to death. On the other hand, if the
stranger is convicted under Article 255, the penalty to be
imposed is equivalent to murder therefore, also reclusion
perpetua to death. But note the charge is that he is guilty of
infanticide.
The fact that the said mother killed the child, less
than three days old, in order to conceal dishonorwill
mitigate the criminal liability of the mother. NOTE:The
penalty will be lowered not by one, but by two degrees, from
reclusion perpetua to death, the penalty of the mother will
only now become prision mayor.
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Q: What if let us say that the killer of the less than three day
old child is the maternal grandparents. The grandparents
conspired in the killing in order to conceal the dishonor of
their daughter. What is the effect of the concealment of the
dishonor?
A: The concealment of the dishonor will also
mitigate the criminal liability of the maternal
grandparents that is one degree lower. So sa
mother, two degrees lower, from reclusion
perpetua to death magigingprision mayor. Sa
maternal grandparents one degree lower lang, from
reclusion perpetua to death it will now become
reclusion temporal. Whatever it is, concealment of
dishonor is akin to a privilege mitigating
circumstance because the lowering of the penalty
is not merely by periods but by degrees. So it is akin
to a privilege mitigating circumstance.
Q: So what if in the same problem I gave, the woman gave
birth to the child and wanted to kill the child but this time the
infant is already three days old and the child was killed by
the said mother and the friend. What are the crimes
committed?
A: The mother is liable for
parricidewhile the stranger/friend is liable for
murder. And this time no amount of concealment
of dishonor will mitigate the criminal liability of the
mother. So there lies a difference between
parricide and infanticide if the offender is the parent
or the mother of the child.
JUST REMEMBER: If the child is less than three days old
or less than 72 hours, IT IS INFANTICIDE. It is the age that
controls. If the child is three days old and above,
PARRICIDE OR MURDER, as the case may be. It is
obvious murder because a three day old child or infant is
totally defenseless.
ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT
ABORTION
ARTICLE 256 – INTENTIONAL ABORTION
ARTICLE 257 – UNINTENTIONAL ABORTION
ARTICLE 258 – ABORTION PRACTICED BY THE
WOMAN HERSELF OR BY HER PARENTS
ARTICLE 259 - ABORTION PRACTICED BY A
PHYSICIAN OR MIDWIFE AND DISPENSING OF
ABORTIVES
Note that there are four (4) articles on abortion but there are
only two (2) type of abortion:
1.) INTENTIONAL ABORTION
2.) UNINTENTIONAL ABORTION
Because the abortion practiced by the woman herself or the
mother and the abortion practiced by a physician or midwife
are all intentional abortion. So in effect, we only have to
kinds of abortion. We have intentional abortion and
unintentional abortion.
ABORTION – is the willful killing of a fetus from the mother’s
womb or the violent expulsion of a fetus from the maternal
womb which results in the death of the fetus.
INTENTION ABORTION is committed in three (3) ways:
1.) By using violence upon the person of the pregnant
woman resulting to abortion.
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2.) Without violence, by acting without violence,
without the consent of the woman by administering
aborting drugs or beverages without the consent of
the pregnant woman.
3.) By acting without violence, with the consent of the
pregnant woman that is by administering aborting
drugs or beverages to a pregnant woman this time
with her consent.
UNINTENTIONAL ABORTION can only be committed in one
(1) way and that is by exerting physical violence on a
pregnant woman. And in result thereof, an unintentional
abortion was suffered.
In unintentional abortion the force employed was
physically exerted on a pregnant woman. The intention of
the offender is not against the baby or the fetus but against
the mother. His intention is against the mother but in so
doing, since the mother is pregnant, the baby/fetus was also
aborted. So abortion was unintentionally caused.
ILLUSTRATION:
Q: So what if there were two college students, a boyfriend
and girlfriend. The girlfriend became pregnant and the
boyfriend said, ‘I am not yet ready. We are still so young so
I cannot marry you.’ And so by reason thereof the girlfriend
said, ‘how about my situation? I am already pregnant.’ And
so by reason thereof, they both decided in order to conceal
the dishonor of the said female student, they both decided to
abort the fetus. So what the boyfriend did was he went to the
sidewalks of Quiapo and bought there aborting beverages
and he administered the same to the said woman. And the
female student drank the aborting beverage and the fetus
died. What crime/s is/are committed?
A: In so far as the boyfriend is concerned, the crime
committed is intentional abortion under Article 256.
In so far as the said female student is concerned, the
crime committed is also intentional abortion but it is
under Article 258 – Abortion practiced by the woman
herself or by her parents. So, both of them are liable
for intentional abortion.
Q: But what if despite the fact that the female student had
already taken or drank the abortive beverage still the fetus
survived? Malakasangkapitngbatasa maternal womb. What
crime is committed if any by the boyfriend and the girlfriend?
Is there a crime such as frustrated intentional abortion?
A: YES. There is a crime such as frustrated
intentional abortion. Here, the said woman has
already taken the said abortive beverage. He has
already performed all the acts necessary to
consume the crime of abortion however, abortion
did not result because of causes independent of
their will. Malakasangkapitngbatasa maternal
womb and so the baby survived. And so, they are
both liable for frustrated intentional abortion.
IS THERE A CRIME SUCH AS FRUSTRATED
UNINTENTIONAL ABORTION?
NO. This time there is no crime such as
frustrated unintentional abortion. Because in
unintentional abortion, the intention is against the
woman and abortion only happens unintentional.
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ILLUSTRATION:
Q: So let’s say a man exerted physical violence against the
woman who happens to be his enemy. The said woman was
severely hurt however, the baby was not hurt. The fetus
inside the tummy did not die. What is the crime committed
by the said man?
A: Only serious physical Injuries against the
woman. No crimes against the fetus because there
was no intent in so far as the fetus is concerned.
Q: But what if in the said problem, the man inflicted violence
on the pregnant woman who happens to be his enemy. Let’s
say he kicked and moved the said woman severely and by
reason thereof the pregnant woman was 1:44:17. What
crime/s is/are committed?
A: The crime committed against the woman is
serious physical injuries. As against the fetus,
the crime committed is unintentional abortion.
Now, it resulted from one single act therefore it will
result to a complex crime of SERIOUS PHYSICAL
INJURIES WITH UNINTENTIONAL ABORTION
under ARTICLE 48 OF BOOK 1. It is a complex
crime. It is a single act resulting to two less grave
felonies.
Q: What if a husband arrived home at 5 o’clock in the
morning. He saw his wife looking at the children and is
making breakfast. Suddenly the cellphone of the wife rang,
the pregnant wife answered the cellphone and she began
giggling. When she began giggling, the husband took the
cellphone from the said wife and listened to the cellphone.
He heard a voice of a man on the other line of the cellphone.
Since he heard the voice of the man and he just arrived from
work, he became jealous and with the use of a knife he
stabbed the wife. The wife died and the fetus died. What
crime/s is/are committed?
A: In so far as the wife is concerned, the crime
committed is parricide. In so far as the baby is
concerned, the crime committed is
unintentional abortion. Again, it resulted from
one single act of stabbing the wife therefore it will
give rise to a COMPLEX CRIME OF PARRICIDE
WITH UNINTENTIONAL ABORTION. There is a
crime against the wife which is parricide and
against the fetus which is unintentional abortion
resulting from a single act therefore, it is parricide
with unintentional abortion.
ARTICLE 259 - ABORTION PRACTICED BY A
PHYSICIAN OR MIDWIFE AND DISPENSING OF
ABORTIVES
UNDER ARTICLE 259, there is another act punished and
that is dispensing of abortives. Dispensing of abortives is
committed by a pharmacist who shall dispense an abortive
without a prescription from a physician. The mere act of
dispensing the said abortives without prescription from a
physician will hold the said pharmacist criminally liable.
ARTICLE 260 - DUEL
ARTICLE 261 – CHALLENGING TO A DUEL
What is a duel?
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A duel is a combat with deadly weapons concerted
between two or more persons who have decided or agreed
to fight.
ELEMENTS OF A DUEL:
1.) It is necessary that the offenders that there was an
agreement to engage in combat or in a fight.
2.) There must be two or more seconds for each
combatant.
3.) The firearms or the arms to be used as well as the
other terms of the combat must be agreed upon by
the said seconds.
Under Article 260 - Duel, there are three acts punished in
a duel:
1.) By killing one’s adversary in a duel.
2.) By inflicting physical injuries upon one’s adversary.
3.) By making a combat by merely entering into a duel.
So under Article 260, the persons who are liable are the
combatants and adversaries, those who engage in a duel
and yungkanilangalalay, yung seconds.
Under Article 261- Challenging to a duel, there are also
three 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.
Under Article 261, the persons criminally liable are both the
challenger and the instigator.
NOTE that if it is not a duel or there is no agreement to
combat or to fight, let’s say there was no agreement between
A and B to fight and yet they fought and B died, the crime
committed is HOMICIDE because Article 260 and 261 only
applies if there is an agreement to fight, to a duel or a
combat.
CRIMES OF PHYSICAL INJURIES:
ARTICLE 262 – MUTILATION
Mutilation is the clipping off or chopping off of a
particular part of a body which is not susceptible to grow
again.
Two kinds of mutilation:
1.) By intentionally depriving another of a part of his
body which is an essential part for reproduction.
2.) By intentionally committing other mutilation that is,
by depriving him of any other part of his body with
intent to deprive him of such part of his body.
Under the first kind, that is mutilating an organ essential
for reproduction, is otherwise known as CASTRATION. You
will know that the penalty is even higher than homicide.
Killing a person is only punishable by reclusion perpetua
while castrating a person is punishable by reclusion
temporal to reclusion perpetua. Because if you are castrated
it is as if you are already killed. That’s why it has a higher
penalty.
Mutilation is a felony which cannot be committed
out of imprudence or negligence. Because the law
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requires that there must be the deliberate intent to
mutilate, the deliberate intent to clip off, to severe a
particular part of the body of a person. Absent that
deliberate intent, any person who loses a part of his
body, it can only be serious physical injuries but not
mutilation. So in mutilation it is always committed
with deliberate intent or dolo to mutilate. Absent
that, it is serious physical injury.
ILLUSTRATION
Q: Let’s say A and B were engaged in a fight, they were
both fighting and A was losing and so he took out his bolo.
His intention was to cut the body of B in order to defeat him
however, B tried to prevent him and placed his hand and by
reason thereof, the right hand of B was severed from his
body. Is the crime committed mutilation?
A: NO. It is not mutilation because there was no
deliberate intent to clip off or to severe the right
hand of B. His intention was to attack or to stab B
and in so doing, it resulted to the loss of an arm
therefore, the CRIME COMMITTED IS SERIOUS
PHYSICAL INJURIES. Physical injuries can either be
serious physical injuries, less serious physical injuries
or slight physical injuries.
PHYSICAL INJURIES is the act of wounding, beating or
assaulting another with no intent to kill. It also involves the
act of knowingly administering injurious beverages or
substances absent intent to kill. So always there is no intent
to kill in order to amount to physical injuries because even if
the injury is only slight or no injury at all but if there is intent
to kill, it is already in the stage of homicide. So there must
be no intent to kill.
It also includes the act of knowing administering injurious
substances absent intent to kill.
So always, there is no intent to kill in order to amount to
physical injuries.
Because even if the injury is only SLIGHT or no injury at all,
but there is intent7 to kill, it is already in the attempted stage
of Homicide. So there must be no intent to kill.
ARTICLE 263 –SERIOUS PHYSICAL INJURIES
Under Art. 263, the serious physical injuries punished
are:
1. When the injured person becomes insane,
imbecile, impotent, or blind in consequence of the
physical injuries inflicted.
2. When the injured person:
a. Loses the use of speech or the power
to heal or to smell, or looses 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 was therefore habitually
engaged in the consequence of the
physical injuries inflicted
3. When the injured:
a. Becomes deformed
b. Loses any other member of his body;
or
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c. Becomes ill or incapacitated for the
performance of the work in which he
was 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 that 30 days (but
must not be more than 90 days), as a result of the
physical injuries inflicted.
Note: All of this, all of the enumeration mentioned in Art. 263
are already considered serious physical injury. If a person
becomes ill or incapacitated for more than 30 days, it is
already serious physical injuries. It is already divided into
categories for purposes of penalty. Because they differ in
penalty. But the moment the said person, by reason of the
said injury becomes ill or incapacitated for labor for more
than 30 days, it is already, serious physical injury.
So the FIRST CATEGORYis, that the injured person
becomes INSANE.
INSANITY refers to a mental disease by reason thereof a
person can no longer appreciate the consequences of his
act.
IMBECILITY is when a person is already advanced in age,
yet he has only the mind of a 2-7 year old child.
IMPOTENCY includes the inability to copulate or sterility.
BLINDNESS requires loss of vision of both eyes by reason
of the injury inflicted. Mere weakness in vision is not
contemplated.
Under the SECOND CATEGORY:
The offender loses the use of speech or the power to heal or
to smell, or looses an eye, a hand, a foot, an arm or a leg.
- So if it is only an eye which has been lost, it is
serious physical injury but under the Second
Category already. The penalty is lesser than that of
the First Category.
Under the THIRD CIRCUMSTANCE/CATEGORY:
When the offender becomes DEFORMED.
So what is this so-called DEFORMITY which will result in
serious physical injury?
Q: A hacked B with the use of a bolo on his stomach. So
there was a big mark on his stomach despite the fact that it
was already healed, there was a big scar on the said
stomach. The doctor said that the said injury requires
medical treatment for 2 weeks. What crime is committed? Is
it serious physical injury or is it less serious physical injury?
A: The crime committed is only LESS SERIOUS
PHYSICAL INJURY. There was no deformity.
Although there was a big scar on the stomach, it
would not amount to deformity. An injury in order
to amount to deformity which would bring about
serious physical injury must result to a physical
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ugliness on a person. There are 3 requisites befor
deformity may be considered as a serious physical
injury:
1. There must be physical ugliness produced on
a body of a person
2. The said deformity should be permanent and
definite abnormality and it would not heal
through the natural healing process
3. The said deformity must be located in a
conspicuous and visible place
EXAMPLE OF “The said deformity should be permanent and
definite abnormality and it would not heal through the natural
healing process”:
A boxed B. He lost his 2 front teeth permanently. What crime
was committed?
A: The crime committed was SERIOUS PHYSICAL
INJURY. Because it is a deformity even if the doctor
says that he can still replace it, the fact still remains
that it cannot be healed through a natural healing
process.
A boxed B, A lost a molar tooth.
A: The crime committed will LESS SERIOUS OR
SLIGHT PHYSICAL INJURIES depending on the
medical attendance. Because it cannot be seen. It
is not located in a visible or conspicuous place.
A poured muriatic acid on the face of another person whom
he hates and so because of that, the face of that person
becomes deformed, it became ugly. Later, she went on a
plastic surgeon. When he got out of the plastic surgery clinic,
she now looks like Vilma Santos. Is the accused person
liable for serious physical injuries?
A: Yes. Even if she became prettier than before, it
is still a fact that by reason of the said injury it
cannot be healed through the natural healing
process. It will require the attendance of medical
surgeon. Therefore, it is considered as a deformity.
If the said physical ugliness is not located on a visible or
conspicuous place, it would be depending on the
deployment of medical attendance.
Q: When is serious physical injuries qualified?
A: Serious physical injuries is qualified:
1. If it is committed against any of the persons
enumerated in Parricide. That is when serious
physical injuries is committed against the
father, mother, child, whether legitimate or
illegitimate; legitimate other ascendant or other
descendant and legitimate spouse of the
accused.
2. If in the infliction of serious physical injuries, it
is attended by any of the qualifying
circumstances for murder. That is, if it is done
with treachery, evident premeditation, the
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crime committed is qualified serious physical
injuries.
ARTICLE 264 –ADMINISTERING INJURIOUS
SUBSTANCE OR BEVERAGES
ELEMENTS:
1. The offender inflicted serious physical injuries upon
another
2. It was done by knowingly administering to him any
injurious substances or beverages or by taking
advantage of his weakness of mind or cruelty
3. He had no intent to kill
ARTICLE 265 – LESS SERIOUS PHYSICAL INJURIES
LESS SERIOUS PHYSICAL INJURIES is
committed if by reason of the injury inflicted, the offended
party requires medical attendance or he cannot perform the
work with which he is habitually engaged for a period of 10-
30 days. So the requirement of medical attendance or his
incapacity to do his work for a period of 10-30 days, it will
bring about less serious physical injury.
Q: What circumstances will QUALIFY LESS SERIOUS
PHYSICAL INJURIES?
1. When there is manifest intent to insult or offend the
injured person
2. When there are circumstances adding ignominy to
the offense
3. When the victim is the offender’s parents,
ascendants, guardians, curators, or teachers
4. When the victim is a person of rank or person in
authority, provided the crime is not direct assault
So the crime committed here, with the attendance of these
circumstances qualify less serious physical injuries.
ARTICLE 266 – SLIGHT PHYSICAL INJURIES AND
MALTREATMENT
3 KINDS OF SERIOUS PHYSICAL INJURIES AND
MALTREATMENT:
1. Physical injuries which incapacitated the offended
party for labor from 1 to 9 days, or required medical
attendance during 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
any injury
Maltreatment of another by deed without causing any injury
is the act of INFLICTING PAIN ON ANOTHER PERSON
WITHOUT CAUSING ANY WOUND OR INJURY.
CASE: PEOPLE VS MAPALO (in Book I)
Let us say that A was walking. Here comes B. B
used a lead pipe, he went to A and hit the head of A with a
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lead pipe. Thereafter, he ran away. The medical certificate
showed that the head of A did not sustain any injury. He was
charged with wttempted homicide. Supreme Court said, the
crime committed is ILL-TREATMENT OF ANOTHER BY
DEED, a form of slight physical injury under Art. 266.
According to the Supreme Court, there was pain
inflicted on A, but there was no injury and there was no intent
to kill because the said offender immediately ran away after
hitting him a single time. So the crime committed is
MALTREATMENT OF ANOTHER PARTY.
ARTICLE 266-A – RAPE
RAPE is now a crime against person; it is no longer
a crime against chastity. Because of the amendment brought
about by RA 8353 – THE ANTI-RAPE LAW.
2 TYPES OF RAPE/HOW RAPE IS COMMITTED:
1. By a man who shall have carnal knowledge of a
woman
2. Sexual Assault
There is RAPE BY CARNAL KNOWLEDGE when a man
has carnal knowledge of a woman against her will.
ELEMENTS OF A RAPE BY A MAN WHO SHALL HAVE
CARNAL KNOWLEDGE OF A WOMAN :
1. Offender is a man
2. Offender had carnal knowledge of the woman
against her will
3. Such act is accomplished under any of the
following circumstance:
a. Through force, threat, or intimidation
b. When the offended party is deprived of reason
or is 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 the
circumstances mentioned above be present
FIRST - “OFFENDER IS A MAN”
So in rape by carnal knowledge, who is the offender? A
MAN.
Who is the offendeaprty? A WOMAN.
The law is SPECIFIC.
SECOND - “OFFENDER HAD CARNAL KNOWLEDGE OF
THE WOMAN AGAINST HER WILL”"
The offender has carnal knowledge of a woman against her
will and it is committed by using force, threat, or intimidation.
When the offended party is deprived of reason or otherwise
unconscious.
Q: What if the woman was sleeping when a man had a carnal
knowledge of the said woman. Is it rape by carnal
knowledge?
A: Yes. The Supreme Court said that the woman
who is sleeping is unconscious.
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Q: What if the woman is half asleep when the carnal
knowledge was done by the said man? Is it still rape?
A: Yes, said by the Supreme Court. The woman
was unconscious.
THIRD:
A is 11 years old. He is cohabiting with a man who is 20
years old. They are luvingtgether as if they are husband and
wife. Of course, they had carnal knowledge. The man is
liable for STATUTORY RAPE. The number of times that he
had carnal knowledge of the said woman, that is the number
of the counts of rape. So if he had carnal knowledge of the
woman 5 times during the time that they were together – 5
counts of statutory rape. That is because the child, the
victim, is below 12 years of age. Insofar as criminal law is
concerned, she does not have a mind of her own, she cannot
give a valid consent.
Q: What if, so the law requires that the said act of carnal
knowledge must be with the use of force, threat, or
intimidation, a father raped his daughter. The daughter did
not put up a fight, the father did not use force, threat, or
intimidation in the said carnal knowledge of a daughter. Is
the crime committed rape?
A: Yes. The crime committed is rape. It is
INCESTUOUS RAPE. In case of incestuous rape,
it is the overpowering and overbearing moral
influence or moral ascendency of an ascendant
over a descendant which takes place of force,
threat, or intimidation. That is why in case of
inceuous rape, force, threat, or intimidation is not
indispensable; it is not necessary. Because it is the
overpowering and overbearing moral influence or
moral ascendency which a father has over his
daughter which takes place of force, threat or
intimidation.
Q: What if A and B are lovers and then suddenly B filed a
case against A because according to B, he was raped by her
boyfriend. In the course of the trial of the case, the defense
of the man was the so-called, “sweetheart defense theory.”
According to him, “We are sweet lovers.” Therefore
according to him, it is impossible for him to have raped her
because we are sweet lovers. Will said sweetheart defense
theory lie in his favor?
A: Supreme Court said, in case of “sweetheart
defense theory”, for it to lie, mere oral testimonty
will not suffice. There must be documentary
evidence, memorabilia, picture, love letters, etc.
which would show that indeed they are sweethearts
– boyfriend & girlfriend or lovers. But mind you,
even the Supreme Court said this, there was not a
case wherein the “sweetheart defense theory” has
acquitted a man.
Therefore, under any all circumstances which involves the
“sweetheart defense theory” will not lie in favor of a man.
Because it does not mean that when you are the sweetheart,
you can no longer rape the other person.
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In Book I, there is no such thing as FRUSTRATED RAPE.
Rape admits only 2 stages: ATTEMPTED RAPE and
CONSUMMATED RAPE.
The reason is that a mere touch of an erected penis on the
labia or lips of a woman’s genitalia will already consummate
rape.
It is not necessary that there be deep or complete
penetration. It is not necessary that the vagina did lacerated.
Mere touch of the lips or the labia of a woman’s genitalia
already consummates rape.
Q: What if, what the erectile penis has touched was the outer
portion of genitalia, that portion which became hairy during
puberty, you have to distinguish whether it is acts of
lasciviousness or attempted rape.
A:
CASE: PEOPLE VS JALOSJOS
If when an erectile penis has touched the outer
portion of a woman’s genitalia which becomes hairy
during puberty, if the intention of the said offender
is to lie, to have carnal knowledge against the said
woman, it is attempted rape. But if in doing so, the
said man has no intention to lie or to have carnal
knowledge, that is only ACTS OF
LASCIVIOUSNESS.
What about the other form of Rape – RAPE BY SEXUAL
ASSAULT
ELEMENTS:
1. Offender commits an act of sexual assault
2. The act of sexual assault is committed by any of the
following means
a. By inserting his penis into another person’s
mouth or anal orifice, or
b. By inserting any instrument or object into the
genital or anal orifice of another person
3. The 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, or
c. By means of fraudulent machination or grave
abused of authority
d. When the woman is under 12 years of age or
demented
*So what if what has been inserted is the penis inside the
mouth or the anal orifice, before that would only amount to
acts of lasciviousness - before the passage of RA 8353.
*The law says that it must be an instrument or object which
was inserted in the genitalia or in the anal orifice of another
person.
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Q: What if it was the finger which was inserted in the genitalia
of a person? Is it acts of lasciviousness or rape by sexual
assault?
A: Supreme Court said it is RAPE BY SEXUAL
ASSAULT. According to the Supreme Court, it
would be so weird if what has been inserted is an
instrument or object, it would be rape by sexual
assault, but if it was finger, it would be rape by
acts of lasciviousness. The finger is within the
mean of an instrument or object insofar as rape by
sexual assault is concerned.
Q: In case of RAPE, what are the circumstances which will
qualify the penalty?
A: In case of RAPE BY SEXUAL ASSAULT, the
penalty is only PRISION MAYOR. It is a bailable
offense.
If it is a RAPE BY CARNAL KNOWLEDGE, note
that the penalty is RECLUSION PERPETUA. It is a
non-bailable offense
Q: In case of a RAPE BY CARNAL KNOWLEDGE, when is
a penalty qualified?
A: Reclusion Perpetua to Death:
1. When rape is committed with the use of a
deadly weapon
2. When rape is committed by two or more
persons
3. When by reason or on occasion of rape, the
victim becomes insane
4. When rape is attempted and homicide is
committed
Q: What are the instances wherein the penalty to be imposed
is the capital punishment of death, so the extreme penalty of
death?
1. When by reason or on the occasion of rape,
homicide is committed
2. When the victim is under 18 years of age and the
offender is a parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within
the 3rd civil degree, or the common law spouse of
the victim
3. When the victim is under the custody of the police
or military authorities or any penal institution
4. When the rape is committed in full view of the
spouse, the parent, any of the children of the
relative by consanguinity within the 3rd civil degree
5. When the victim is a religious and gauged in
legitimate religious calling or vocation and he
known to be such by the offender before or during
the commission of the rape
6. When the victim of the rape is below 7 years of age
7. When the said offender knows that he has been
afflicted with HIV virus or AIDS or any other
sexually transmissible disease and the virus of the
disease is transmitted to the victim
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8. When the said offender is a member of the AFP or
parliamentary units, the PNP or any other member
of the law enforcement agency who took advantage
of his position in order to facilitate the commission
of the crime
9. By reason or on the occasion of rape, the said
victim suffered permanent physical mutilation or
disability
10. When the offender knew that the offended party or
victim is pregnant at the time of the commission of
rape
11. When the offender knew of the mental disability,
emotional disorder and/or physical handicap of the
offended party at the time of the commission of the
crime
The presence of any of these circumstances will bring about
the imposition of the maximum penalty of death. However,
death is lifted because of RA 9346 which prohibits the
imposition of death penalty.
In case of rape, PARDON will not extinguish the criminal
liability of the offender. According to Art. 266, pardon will not
extinguish the criminal liability of the offender. It is only
through:
1. The offended woman may pardon the offender
through a subsequent valid marriage, the effect of
which would be the extinction of the offender’s
liability
2. The legal husband maybe pardoned by forgiveness
of the wife provided that the marriage is not void ab
initio
EXCEPTION: In case of MARITAL RAPE. If the legal wife
has forgiven or pardoned the legal husband.
Q: When is there PRESUMPTION OF RESISTANCE?
A: If in the course of the commission of rape, the
said offended party has performed any acts in any
degree amounting to resistance of rape or when the
said offended party cannot give a valid consent.
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
ACT (VAWC) – R.A. 9262
Violence against women and their children
- refers to any act or a series of acts committed by any
person against a woman who is his wife, former wife, or
against a woman with whom the person has or had a sexual
or dating relationship, or with whom he has a common child,
or against her child whether legitimate or illegitimate, within
or without the family abode, which result in or is likely to
result in physical, sexual, psychological harm or suffering, or
economic abuse including threats of such acts, battery,
assault, coercion, harassment or arbitrary deprivation of
liberty.
Acts consisting violence against women and children:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
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B. "Sexual violence" refers to an act which is sexual in
nature, committed against a woman or her child. It includes,
but is not limited to:
a) rape, sexual harassment, acts of lasciviousness,
treating a woman or her child as a sex object,
making demeaning and sexually suggestive
remarks, physically attacking the sexual parts of
the victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the
woman or her child to do indecent acts and/or make
films thereof, forcing the wife and mistress/lover to
live in the conjugal home or sleep together in the
same room with the abuser;
b) acts causing or attempting to cause the victim to
engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions
causing or likely to cause mental or emotional suffering of
the victim such as but not limited to intimidation, harassment,
stalking, damage to property, public ridicule or humiliation,
repeated verbal abuse and mental infidelity. It includes
causing or allowing the victim to witness the physical, sexual
or psychological abuse of a member of the family to which
the victim belongs, or to witness pornography in any form or
to witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of
common children.
D. "Economic abuse" refers to acts that make or attempt to
make a woman financially dependent which includes, but is
not limited to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73
of the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties
or solely controlling the conjugal money or
properties.
Acts of Violence Against Women and Their Children.- The
crime of violence against women and their children is
committed through any of the following acts:
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(a) Causing physical harm to the woman or her
child;
(b) Threatening to cause the woman or her child
physical harm;
(c) Attempting to cause the woman or her child
physical harm;
(d) Placing the woman or her child in fear of
imminent physical harm;
(e) Attempting to compel or compelling the woman
or her child to engage in conduct which the woman
or her child has the right to desist from or desist
from conduct which the woman or her child has the
right to engage in, or attempting to restrict or
restricting the woman's or her child's freedom of
movement or conduct by force or threat of force,
physical or other harm or threat of physical or other
harm, or intimidation directed against the woman or
child. This shall include, but not limited to, the
following acts committed with the purpose or effect
of controlling or restricting the woman's or her
child's movement or conduct:
(1) Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
(2) Depriving or threatening to deprive the
woman or her children of financial support
legally due her or her family, or
deliberately providing the woman's
children insufficient financial support;
(3) Depriving or threatening to deprive the
woman or her child of a legal right;
(4) Preventing the woman in engaging in
any legitimate profession, occupation,
business or activity or controlling the
victim's own mon4ey or properties, or
solely controlling the conjugal or common
money, or properties;
(f) Inflicting or threatening to inflict physical harm on
oneself for the purpose of controlling her actions or
decisions;
(g) Causing or attempting to cause the woman or
her child to engage in any sexual activity which
does not constitute rape, by force or threat of force,
physical harm, or through intimidation directed
against the woman or her child or her/his immediate
family;
(h) Engaging in purposeful, knowing, or reckless
conduct, personally or through another, that alarms
or causes substantial emotional or psychological
distress to the woman or her child. This shall
include, but not be limited to, the following acts:
(1) Stalking or following the woman or her
child in public or private places;
(2) Peering in the window or lingering
outside the residence of the woman or her
child;
(3) Entering or remaining in the dwelling
or on the property of the woman or her
child against her/his will;
(4) Destroying the property and personal
belongings or inflicting harm to animals or
pets of the woman or her child; and
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(5) Engaging in any form of harassment or
violence;
(i) Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
including, but not limited to, repeated verbal and
emotional abuse, and denial of financial support or
custody of minor children of access to the woman's
child/children.
DATING RELATIONSHIP- refers to a situation wherein the
parties live as husband and wife without the benefit of
marriage or are romantically involved over time and on a
continuing basis during the course of the relationship. A
casual acquaintance or ordinary socialization between two
individuals in a business or social context is not a dating
relationship.
Q: The neighbor was aware of the beatings that the husband
has been doing to his wife so the neighbor who was a
witness to all these beatings filed a case against the
husband. Will the case prosper?
A: Yes because under sec. 25, Violation Against
Women and Children (VAWC) is a public offense.
Q: When does the crime prescribe?
A: If it involves physical abuse; it shall prescribe
after 20 years. If it involves psychological, sexual,
and economical abuse; it shall prescribe in 10
years.
Q: Let’s say the wife filed a case against the husband for
violation of RA 9262; during the presentation of evidence by
the defense, the husband testified that he was always drunk.
He was alcoholic. That’s why he lost temper and beats the
wife. Will such defense mitigate the criminally guilty
husband? Can he use such defense?
A: Under Sec. 27 it cannot be used because under
Sec. 27; the fact that the husband is under the
influence of alcohol, any illicit drug, or any other
mind-alteringsubstance cannot be used as defense
in VAWC therefore; alcoholism and drug addiction
cannot be a defense in VAWC.
Battered Women Syndrome (Sec. 26)
- Scientifically defined pattern of psychological
and behavioral symptoms found in the
battering relationship as a result of cumulative
abuse.
Under Sec. 26, it is provided that victim survivors
founded to be suffering from this battered women
syndrome shall be exempted from both criminal
and civil liability notwithstanding the absence of any
of the elements of self-defense.
The court however shall be held by a testimony of
a psychologist or psychiatrist if the woman is
indeed suffering from the so called battered women
syndrome.
ANTI-HAZING LAW – R.A. 8049
Q: What is hazing?
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A: Hazing is an initiation rite or practice which is
used as an admission into membership in any
fraternity or any other organization wherein the said
recruit/neophyte/applicant is placed under the an
embarrassing or humiliating situations such as
forcing him to do menial, silly, and foolish tasks or
services or subjecting him into psychological or
physical injury or crime.
Q: Is hazing totally prohibited in the Philippines?
A: No. Hazing is not totally prohibited in the
Philippines. Hazing is allowed provided that the
following requisites are present:
1. There must be a prior written notice sent to the
head of the school authorities or the head of
the organization 7 days before the said
initiation rites and this prior written notice shall
contain the following:
a. It shall indicate the date of the said
initiation rites which shall not be more
than 3 days.
b. It shall indicate/state the names of the
neophytes or applicants who will
undergo the said hazing or initiation
rites.
c. It shall contain an undertaking which
states that there shall be no physical
violence employed in any form on these
neophyte recruits or applicants.
2. Upon the receipt of such prior written notice;
the head of the school or organization shall
assign atleast 2 representatives from their
school or organization who must be present
during the time of the said initiation rite or
hazing and these 2 representatives shall see
to it that no amount of physical violence shall
be employed on any person or any neophyte
or recruit or applicant during the said hazing or
initiation rite.
Q: What if in the course of the said hazing or initiation rite
someone died or suffered physical injuries; who shall be held
criminally liable?
A: If in the course of hazing or initiation rite,
someone died or some suffered any physical
injuries; all of the officers and members of the said
fraternity or organization who are present and who
participated in the said initiation rite shall be liable
as principal.
Q: What if the said initiation rite was conducted or held in a
house of an Aling Nene? Is Aling Nene criminally liable?
A: Aling Nene is liable as an accomplice if
she has knowledge of the conduct of the said
initiation rites and she did not do any act in order to
prevent its occurrence.
If the said initiation rite took place in the house
of a member or an officer of the said fraternity
or sorority; the parents of the said members or
officers shall be held liable not as an
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accomplice but as a principal if they have
such knowledge of the said conduct of the
initiation rites and they did not perform any act
inorder to prevent its occurrence.
Q: When is there a prima facie evidence of participation?
A: Any person who is present in the said hazing
or initiation rite shall constitute a prima facie
evidence that there is a participation and shall be
held liable as principal.
Q: What if in the said hazing an officer beat an applicant and
he hit the neck thereby causing the death of the said
neophyte/recruit/applicant and so when prosecuted he said:
“I have no intention to commit so grave a wrong as that
committed”. Can such defense be used so as to mitigate his
criminal liability?
A: No such defense is prohibited defense. Under
RA 8049; the defense that such person has no
intention to commit so grave a wrong as that
committed cannot be used by an accused under
RA 8049.
Whenever a person hits an applicant/neophyte,
he is already performing a felonious act
therefore he shall be held criminally liable for all
the consequences of his actions. (Art 4 book 1)
In the case of Lenny Villa Hazing; Sereno et. al.
considered Art. 4 wherein they ruled Reckless
Imprudence resulting to homicide.
o (I disagree) In Reckless imprudence,
the said person must be performing an
act which is not felonious but by reason
of negligence or imprudence, a felony
resulted. Therefore, in the case of
Lenny Villa, the ruling shall be
homicide, it shall not be reckless
imprudence.
ANTI- CHILD ABUSE ACT – R.A. 7610
In so far as RA 7610 is concerned; Children are those:
Below 18 years of age
Above 18 years of age who does not have the
capacity to fully protect themselves against any
abuse, cruelty or maltreatment because of their
physical or mental disability.
Q: What if two children, A and B were fighting over a gun
toy. The mother of A saw B beating A so A’s mother held B
and gave him a tender slap. However, because B is still a
child, his face became reddish. Based in the medical
certificate, it showed that the said act of slapping was the
cause of the injury sustained by B that made his face
reddish. What crime was committed by the mother of A? Is
the mother liable for Child abuse or is the mother liable for
slight physical injuries?
A: The mother of A is liable for slight physical
injuries only and not for violation of RA 7610.
Q: What do you mean by Child Abuse?
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A: Child abuse refers to the maltreatment,
whether habitual or not, of the child which includes
any of the following:
Physical or psychological abuse, neglect,
cruelty, sexual abuse and emotional
maltreatment;
Any act by deeds or words which debases,
degrades or demean the intrinsic worth and
dignity of a child as a human being.
Unreasonable deprivation of his basic needs
for survival, such as food and shelter; or
Failure to immediately give medical treatment
to an injured child resulting in serious
impairment of his growth and development or
in his permanent incapacity or death.
Not all acts committed against a child will result to
child abuse. It is necessary that in the said act,
there was this intention to debase, degrade or
demean the intrinsic worth of a child as a human
being.
Child Prostitution and Other Sexual Abuse
What is child prostitution?
Children, whether male or female, who for money, profit, or
any other consideration or due to the coercion or influence
of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct, are deemed to be children
exploited in prostitution and other sexual abuse.
Aggravating Circumstances:
(a) Those who engage in or promote, facilitate or
induce child prostitution which include, but are not
limited to, the following:
(1) Acting as a procurer of a child
prostitute;
(2) Inducing a person to be a client of a
child prostitute by means of written or oral
advertisements or other similar means;
(3) Taking advantage of influence or
relationship to procure a child as
prostitute;
(4) Threatening or using violence towards
a child to engage him as a prostitute; or
(5) Giving monetary consideration goods
or other pecuniary benefit to a child with
intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse
of lascivious conduct with a child exploited in
prostitution or subject to other sexual abuse;
Provided, That when the victims is under twelve
(12) years of age, the perpetrators shall be
prosecuted under Article 335, paragraph 3, for rape
and Article 336 of Act No. 3815, as amended, the
Revised Penal Code, for rape or lascivious
conduct, as the case may be: Provided, That the
penalty for lascivious conduct when the victim is
under twelve (12) years of age shall be reclusion
temporal in its medium period; and
(c) Those who derive profit or advantage therefrom,
whether as manager or owner of the establishment
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where the prostitution takes place, or of the sauna,
disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages
in prostitution in addition to the activity for which the
license has been issued to said establishment.
When is there attempt to commit child prostitution?
1. when any person who, not being a relative of a
child, is found alone with the said child inside the
room or cubicle of a house, an inn, hotel, motel,
pension house, apartelle or other similar
establishments, vessel, vehicle or any other hidden
or secluded area under circumstances which would
lead a reasonable person to believe that the child
is about to be exploited in prostitution and other
sexual abuse.
2. when any person is receiving services from a child
in a sauna parlor or bath, massage clinic, health
club and other similar establishments.
What is Child Trafficking
Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and
selling of a child for money, or for any other consideration,
or barter
Aggravating Circumstance: if the victim is under 12 years
of age
Attempt to Commit Child Trafficking. – There is an
attempt to commit child trafficking under Section 7 of this Act:
(a) When a child travels alone to a foreign country
without valid reason therefor and without clearance
issued by the Department of Social Welfare and
Development or written permit or justification from
the child's parents or legal guardian;
(b) when the pregnant mother executes an affidavit
of consent for adoption for consideration;
(c) When a person, agency, establishment or child-
caring institution recruits women or couples to bear
children for the purpose of child trafficking; or
(d) When a doctor, hospital or clinic official or
employee, nurse, midwife, local civil registrar or
any other person simulates birth for the purpose of
child trafficking; or
(e) When a person engages in the act of finding
children among low-income families, hospitals,
clinics, nurseries, day-care centers, or other child-
during institutions who can be offered for the
purpose of child trafficking.
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TITLE NINE
CRIMES AGAINST PERSONSAL LIBERTY AND
SECURITY (ARTICLES 267 – 292)
ART 267 – KIDNAPPING AND SERIOUS ILLEGAL
DETENTION
It is committed when: a private individual kidnaps or
detains another or in any other manner to deprive him
of his liberty when such detention is illegal and it is
committed in any of the following circumstances:
1. If the kidnapping or detention should have
lasted for more than 3 days.
2. If it is committed simulating a public authority.
3. If threats to kill had been made upon the
person kidnapped or any serious physical
injuries are inflicted upon same.
4. If the person kidnapped or detained is a minor,
female, or a public officer.
Any of the circumstances present, then we have serious
illegal detention.
Q: Who is the offender in Art 267?
A: He must be a private individual because if
he is a public officer who has been vested by
law to make arrest and he detains a person; it
will be arbitrary detention under Art 124.
Q: Can a public officer commit kidnapping and serious
illegal detention?
A: Yes if the said public officer has not been
vested by law with the authority to effect arrest
and to detain a person then the said public
officer is acting in his private capacity.
Although a public officer; since he is acting in
his private capacity, the crime committed is
kidnapping and serious illegal detention under
Art 267 and not arbitrary detention under Art
124.
The second element requires that the offender kidnaps
or detains another or in any other manner depriving him
of his liberty.
Q: When is there detention?
A: There is detention if the offender restrains a
person or the liberty of another person. He
must be detained, incarcerated. There must be
showing that there is a restraint on his person
or liberty; otherwise, if there is no restraint on
the person or liberty on the part of the offended
party, it could be any other crime but not
kidnapping and serious illegal detention.
The law requires that the kidnapping and detention must
be illegal therefore there must be no reasonable ground.
Circumstances which will make the crime serious:
1. The kidnapping or detention should have lasted for
more than 3 days;
2. If it is committed by simulating public authority.
By pretending to be police officers,
pretending to be NBI agents
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3. If any serious physical injuries are inflicted upon the
person kidnapped or detained or threats to kill him
are made.
4. If the person kidnapped or detained is a minor
(unless the offender is his parents); a female, or a
public officer.
The presence of any of these circumstances will meet
the crime of Serious Illegal Detention and the absence
of any of the circumstance will make the crime Slight
Illegal Detention under Art 268.
Note that the penalty is reclusion perpetua to death.
Circumstances which will qualify the penalty:
1. If the purpose of the kidnapping is to extort ransom
from the victim or from any other person.
Kidnapping and Serious Illegal Detention
for Ransom.
Q: What is ransom?
A: A ransom is the money, price, or any
other consideration given or demanded
for the redemption of the liberty of the
person who has been detained or
incarcerated.
PEOPLE VS. MAMANTAK
- While the mother and the daughter where in a food
chain in tondo; the mother lost the said child.
- she had been looking for the said child for a year.
- A year and six months thereafter, the said mother
received a call from a woman who sounded to be a
masculine man from Lanaodel Norte according to
the said woman.
- The woman said that she has the child with her and
the woman was demanding P 30,000 in exchange
for the child.
- The said woman, Mamantak and company asked
the mother to go to a certain restaurant.
- The mother went to the said restaurant however the
mother already informed the authorities.
- Upon the exchange of the child and the demand;
Mamantak and co. were arrested by the said
authorities.
- The crime charged was: Kidnapping and Serious
Illegal Detention for Ransom.
- RTC ruled that it is only kidnapping and serious
illegal detention but not for ransom because
according to the trial court; the amount given is
measly a sum to be considered as ransom because
according to the RTC; it is only in payment for the
board and logging of the child during the time that
she was in the captivity of the said woman.
- SC ruled that the crime committed is kidnapping
and serious illegal detention for ransom. Even if it
is only 5 centavos; if it was given in exchange for
the liberty of a person who has been detained, by
whose liberty has been restricted; it is already
considered as ransom.
- There is no such thing as small amount in so far
as ransom is concerned.
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Q: Let’s say A is indebted to B; B was asking payment
from A, A however said that he has no money until B
got fed up so what B did is he kidnapped and detained
the minor child of A. He then called A telling the same:
“I will only release your minor child the moment you
give your indebtedness in the amount of a million
pesos”. Is the crime committed kidnapping and serious
illegal detention for ransom?
A: Yes it is already kidnapping and
serious illegal detention for ransom even
if the amount being asked by the
kidnapper is the indebtedness of the
father of the said child. Any amount
demanded in exchange for the liberty of
the person detained; that is already
considered as ransom.
2. When the victim is killed or dies as a consequence
of the kidnapping or detention.
Kidnapping and Serious Illegal
Detention with Homicide.
This is a special complex crime.
Therefore, since it is a special
complex crime; regardless of the
number of victims killed; it is still
kidnapping and serious illegal
detention with homicide.
PEOPLE VS. LARANAGA
- There were two kidnap victims and these two
sisters were both killed and raped yet the SC held
that the crime committed was kidnapping and
serious illegal detention with homicide and rape.
- Despite the fact that there were 2 victims who were
killed and raped because regardless of the
numbers of the victims killed, since it is a special
complex crime; in the eyes of the law there is only
one crime committed so it is only: Kidnapping and
Serious illegal detention with homicide.
Note however that it is required that the victim himself is
the one who has been killed. If it is another person; it
will result to a separate and distinct crime because the
law is particular that the person detained/ kidnapped
must be the one who is killed or died as a consequence
thereof.
Q: What if A kidnapped the child of B who is his enemy.
The said child is 10 years old and he was placed in a
hideout. The child tried to escape but A saw him so A
fired a shot towards the child which resulted to the death
of the child. What crime is committed?
A: The crime committed is kidnapping
with serious illegal detention with
homicide.
Q: What if in the same problem; the father learned about
the said kidnapping so the father informed the NBI
agents. The NBI agents were able to track down the
place where the said child was being hidden so the NBI
agents together with the said father went to the hideout.
There was an exchange of gun fires between A (the
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kidnapper) and the NBI agents. While there was an
exchange of gun fires, the father saw his child so the
father rushed towards the son, carry the son and they
were able to leave the said hideout. While they were
leaving, A the kidnapper saw them and A the kidnapper
shot the father. What crime/s is/are committed?
A: In so far as the minor is concerned; the
crime committed is Kidnapping and
serious illegal detention even if it did not
last for a period of more than 3 days, the
fact that the offended party is a minor, it is
already kidnapping and serious illegal
detention.
In so far as the father who has been killed;
since he is not the victim of serious illegal
detention, it will constitute a separate and
distinct crime of: homicide.
Therefore, there are 2 crimes committed
by the said kidnapper. Kidnapping and
serious illegal detention in so far as the
child is concerned and homicide in so far
as the father who has been killed is
concerned.
3. When the victim is raped.
Kidnapping and Serious Illegal
Detention with Rape.
It is necessary that the victim is the one who
has been raped.
Again; since this is a special complex crime;
regardless of the times that the victim has been
raped. The crime committed is only kidnapping
and serious illegal detention with rape. There
is no kidnapping and serious illegal detention
with multiple rape.
4. When the victim is subjected to torture or any
dehumanizing acts.
The presence of any of these circumstances will bring
about the imposition of maximum penalty of death.
Q: A, a 6 yr old child is playing at a playground at about
5 o’clock in the afternoon while the mother is hanging
clothes. A man (X) gave the child a candy and the child
was so happy. Later, the man again approached the
child and gave the child money and then the said man
invited the child to go with him. Since the child was so
happy because the man was so good to her; the child
went with the said man. At 6 o’clock; the mother came
looking for the child but the child was no longer in the
playground. Meanwhile, the man brought the child to his
place. That evening, the mother kept on looking for the
child however they could not locate the child. In the
house of the man, the child was molested and raped
twice. The following morning, when the mother opened
the door of the house, she saw her child at the door with
torn clothes and blood. So the man was charged with
serious illegal detention with rape. Is the charge
correct?
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A: The charge is wrong because the
obvious intention of the man is to rape the
child and not to detain the child therefore
the SC said: the crime committed would
be 2 counts of statutory rape not only a
single indivisible offense of kidnapping
and serious illegal detention with rape but
2 counts of statutory rape because the
said child is under 12 years of age and she
was raped and molested twice. Therefore,
unless and until there was an intent to
detain on the part of the offender; it could
be any other crime but not kidnapping and
serious illegal detention.
Q: A saw his enemy walking. He abducted his enemy
and placed him inside the van. The following morning,
the said enemy was found in a vacant lot with 10
gunshot wounds. What crime is committed?
A: The crime committed is Murder.
Obviously, there was no intent to detain
the offended party. The intent was to kill
him. Therefore the crime committed is
murder and not kidnapping and serious
illegal detention with homicide or murder
as the case may be.
Inorder for kidnapping and serious illegal detention to
amount to with rape, murder, with homicide with
physical injuries; it is necessary that there is an intent to
detain and in the course of the said detention, the victim
dies, raped, subjected to torture or other dehumanizing
acts.
Again, as mentioned earlier; the absence of any of the
circumstances which will make illegal detention serious
will make the crime Slight Illegal Detention under Art
268.
ART 268 – SLIGHT ILLEGAL DETENTION
Slight illegal detention is committed by: any person
who shall kidnap or detains another or in any other
manner deprive him of his liberty when the said
detention is illegal absent of any of the
circumstances under Art 267; it will only be slight
illegal detention.
Q: What if A was so envious of his neighbor. To teach
the neighbor a lesson, he kidnapped and detained the
said neighbor and placed the said neighbor in a
secluded place in a vacant area one morning. However,
later on, A felt sorry for his neighbor and he released his
neighbor that night. What is the effect in the criminal
liability of the offender A?
A: Under Art 268 (Slight Illegal Detention);
if the offended party has been released.
Such release will be considered as a
privileged mitigating circumstance
because from the penalty of reclusion
temporal, the penalty would be lowered by
one degree that is prision mayor.
Note however that this voluntary release of the victim
may only be considered as a privileged mitigating
circumstance the ff requisites must concur:
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1. It is necessary the release has been
made within 3 days from the
commencement of the said
kidnapping.
2. It must have been made without the
offender having attained or
accomplished his purpose.
3. It must have been made before the
institution of the criminal proceedings
against the said offender.
If all of these 3 are present then such
voluntary release of the offender will
mitigate the criminal liability of the said
offender.
Q: What if the person kidnapped by A is a public
officer? He is mad with the said public officer and
so he kidnapped the same and detained him in the
morning. In the evening, he immediately released
the public officer because he told himself that
perhaps the NBI would look after him so he
immediately released the public officer. Will such
release mitigate his criminal liability?
A: No. the fact that the person kidnapped
is a public officer; the crime would
immediately be kidnapping and serious
illegal detention under 267. And if the
crime is committed under Art 267, no
amount of voluntary release will mitigate
the criminal liability of the offender.
So if the victim is a minor, a female, or a public
officer; automatically, it will be kidnapping and
serious illegal detention and no amount of voluntary
release will mitigate the offender’s criminal liability.
ART 269 – UNLAWFUL ARREST
Unlawful arrest is committed by: any person who
shall arrest or detain another without authority by
law or without reasonable ground therefore and his
main purpose is to deliver him to the proper
authorities.
The purpose is: to deliver him to the proper
authorities.
Q: A was walking when suddenly he was arrested by
B, a police officer. The police officer said that a case
has to be filed against him. The arrest was made without
warrant of arrest. A was not caught committing a crime
inflagrante delicto and not also an escapee but he was
incarcerated. Thereafter a case has been filed against
him however since there was no complainant, the fiscal
dismissed the case for lack of probable cause. What
crime is committed by the police officer?
A: The crime committed is unlawful arrest.
Q: What about the fact that he has been detained
arbitrarily?
A: It is already absorbed because the
intention of the said police officer is to file
a case against him that is; to deliver him
to the proper authorities. Therefore the
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arbitrary detention is merely incidental in
the said act of unlawful arrest.
ART 270 – KIDNAPPING AND FAILURE TO RETURN A
MINOR
Kidnapping and failure to return a minor is
committed by: any person who had been entrusted
with the custody of a minor who shall deliberately
fail to restore the said minor to his parents or
guardians.
Q: Who is the offender?
A: The offender is the person entrusted
with the custody of a minor.
Q: When will the crime arise?
A: The crime will arise if the offender shall
deliberately fail to restore the said minor
to his parents or guardians.
Q: What if A and B has a child and they entrusted the
child to X as they will be going for a vacation for a week.
They told X to deliver the child to them after 7 days. A
week after, the husband and wife arrived home but X
failed to deliver the said child. The reason of X was he
was so busy with his work that he forgot that it was
already the 7th day from the time that he has been
entrusted with the child. Can he be held liable under Art
270?
A: No because he did not deliberately fail
to restore the said minor to his parents or
guardians. The law requires deliberate
failure. Here, he only failed because of
negligence or just because he was so
busy.
ART 271 – INDUCING A MINOR TO ABANDON HIS HOME
It is committed by: any person who induces a minor
to leave the home of his parents, guardians, or
person entrusted with the custody of the said minor.
The crime will arise even if the child hasn’t left the
house of the parents or guardians. Mere
inducement with intent to cause damage will
suffice.
Q: A and B husband and wife’s marriage has been
declared a nullity by the court and the custody of their 5
yr old child has been given definitely to the mother.
However the father has been given visiting rights. One
Sunday, the father visited the 5 yr old son and the son
was brought out by the father. Usually, whenever the
father takes his son out; he will return the child by night
time. However this time, the father did not bring back
the child to the house of the mother and so the mother
demanded the return of her son but the father still failed
to return their child therefore the mother filed a case of
Kidnapping and failure to return a minor under Art 270
against the father. Will the case prosper?
A: Yes the case will prosper. Under Art
271 it is provided that Art 270 and 271 can
also be committed not only by strangers
but also by the father or the mother. The
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only difference is that under Art 270; if the
offender is any other person the penalty is
reclusion perpetua. But if the offender is
the father or the mother, note that the
penalty is so low; only arresto mayor or a
fine of not more than P300 or both fine and
penalty depending upon the discretion of
the court therefore, even the father or the
mother can be held liable under Articles
270 and 271. The only difference is their
respective penalties.
ART 272 – SLAVERY
ELEMENTS:
1. The offender purchases, sells,
kidnaps or detains a human being.
2. The purpose of the offender is to
enslave such human being.
It is committed by: Any person who shall buy, sells,
kidnaps or detains a person for the purpose of
enslaving the said person.
If the purpose is to engage in immoral traffic; then
the penalty will be qualified.
ART 273 – EXPLOITATION OF CHILD LABOR
ELEMENTS:
1. Offender retains a minor in his
service.
2. It is against the will of the minor.
3. It is under the pretext of reimbursing
himself of a debt incurred by an
ascendant, guardian or person
entrusted with the custody of such
minor.
It is committed by: Any person who shall detain a
child in his service against the will of the child under
the pretext of reimbursing a debt incurred by the
parents, ascendants, guardian or any person
entrusted with the custody of the child.
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ART 274 – SERVICES RENDERED UNDER
COMPULSION IN PAYMENT OF DEBT
ELEMENTS:
1. Offender compels a debtor to work for him,
either as household servant or farm
laborer.
2. It is against the debtor’s will.
3. The purpose is to require or enforce the
payment of a debt.
It is committed by: a creditor to shall compel a
debtor to work for him as a household servant or a
farm laborer against the will of the said debtor
inorder to require or enforce the payment of a debt.
ART 275 – ABANDONMENT OF PERSONS IN DANGER
AND ABANDONMENT OF ONES OWN VICTIM
ACTS PUNISHED:
1. Failing to render assistance to any
person whom the offender found in
an uninhabited place wounded or in
danger of dying when he can render
such assistance without detriment to
himself, unless such omission shall
constitute a more serious offense.
2. Failing to render help or assistance to
another whom the offender has
accidentally wounded or injured.
3. Failing to deliver a child under 7 years
of age whom the offender has found
abandoned, to the authorities or to his
family, or failing to take him to a safe
place.
Q: A saw B at Luneta Park. He was wounded and
bitten by a dog and he was crying for help.
However, A, instead of helping B left. Is A liable
under Art 275?
A: No because the place is not an
uninhabited place. Luneta Park is a public
place. People come and go there.
Therefore, A is not liable under Art 275
despite the fact that B is wounded and
dying.
Uninhabited place
- One wherein there’s a remote possibility for the
victim to receive some help.
Q: What if in the same problem, A found B in a
forest? So A went hunting in a forest when he
suddenly saw B in the middle of the forest. There
was this big trunk of tree on the neck of B and he
cannot move. He was begging for the help of A. A
however left. Later, B was rescued. Can he file a
case in violation of Art 275 against A?
A: Yes because B was found by A in an
uninhabited place and he was wounded
and in danger of dying because there’s a
big trunk of tree on his neck and there’s no
detriment on the part of A to render
Dizon | Manalo | Navarez | Shyu | Tubio
assistance but he failed to render
assistance therefore A may be held liable
for violation of Art 275.
Q: But what if when A found B and he was bitten by
a snake and the snake was still there. B was asking
for help however A did not give help because
there’s a snake. He’s afraid that he might get bitten
by the snake too. Can A be held liable under Art
275?
A: No because helping B will be
detrimental on his part.
Q: What if A was driving his vehicle when suddenly
his car tripped on a stone so the stone flew and hit
an eye of a bystander. The left eye bled. Is A liable?
A: No because it is purely accidental; it is
an exempting circumstance. He was
performing an act with due care and
accident happened without fault or
negligence on his part
Q: What if when the left eye of the bystander bled;
A saw him and he knows that the bystander is his
victim. However, instead of bringing the bystander
to the hospital; he increased his speed and left. Is
A criminally liable this time?
A: Yes.
For the first act he is not liable because it
is purely accidental but when he failed to
render help or assistance to his own
victim. This time, he is criminally liable
under Art 275.
ART 276 – ABANDONING A MINOR
ELEMENTS:
1. Offender has the custody of the child.
2. Child is under 7 years of age.
3. He abandons such child.
4. He has no intent to kill the child when
the latter is abandoned.
Abandoning a minor is committed by any person
who has been entrusted with the custody of a child
under 7 years of age and he abandons the said
child permanently, deliberately, and consciously
with no intent to kill the said child.
The penalty will be qualified if DEATH resulted from
the said abandonment or WHEN THE SAFETY OF
THE CHILD HAS BEEN PLACED IN DANGER.
Q: A woman; an OFW worker who left her newly
born child inside a garbage bin of an
aircraft/airplane and later she has been arrested.
What crime is committed by the said mother?
A: The crime committed is Abandoning a
Minor under Art. 276. The mother is in
custody of the child and she deliberately
or and consciously abandoned her child
without the intent to kill. Obviously there
was no intent to kill because she could
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have killed the said child instead she
placed her child inside a garbage can in
the restroom of an aircraft so there was no
intent to kill therefore the crime committed
is Abandoning a Minor under Art. 276.
ART 277 – ABANDONMENT OF MINOR BY A PERSON
ENTRUSTED WITH HIS CUSTODY; INDIFFERENCE OF
PARENTS
ACTS PUNISHED:
1. Abandonment of a child by a person
entrusted with his custody.
It is committed by: any person
who, having entrusted with the
living and education of a minor
shall deliver a minor to a public
institution or other persons
without the consent of the person
who entrusted such minor to the
care of the offender or, in his
absence, without the consent of
the proper authorities.
2. Indifference of parents
It is committed by: any parent who
neglects any of his children by not
giving them the education which
their station in life requires and
financial capability permits.
ART 278 – EXPLOITATION OF A CHILD
ACTS PUNISHED:
1. Causing any boy or girl under 16 to engage
in any dangerous feat of balancing,
physical strength or contortion, the offender
being any person.
2. Employing children under 16 years of age
who are not the children or descendants of
the offender in exhibitions of acrobat,
gymnast, rope walker, diver, or wild animal
tamer, the offender being an acrobat, etc.,
or circus manager or person engaged in
any of said callings.
3. Employing any descendants under 12
years of age in dangerous exhibitions
enumerated on the next preceding
paragraph, the offender being engaged in
any of the said callings.
4. Delivering a child under 16 years of age
gratuitously to any person if any of the
callings enumerated in paragraph 2, or to
any habitual vagrant or beggar, the
offender being an ascendant, guardian,
teacher, or a person entrusted in any
capacity with the care if such child.
5. Including any child under 16 years of age
to abandon the home of its ascendants,
guardians, curators or teachers to follow
any person entrusted in any of the callings
mentioned in paragraph 2 or to accompany
any habitual vagrant or beggar, the
offender being any person.
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These acts are considered as exploitation of minors
because these acts endanger the life and safety, the
growth and development of the minors. (usually these
involves circus)
Note: If the delivery of the said child is on the basis of a
consideration, compensation or money, the penalty will be
QUALIFIED.
Mere act of delivering the child gratuitously under 16
years of age; the crime is already committed.
The fact that it is with consideration; the penalty will be
qualified.
ART 280 – QUALIFIED TRESSPASS TO DWELLING
It is committed by: a private individual who shall
enter the dwelling of another against the will of the
latter.
ELEMENTS:
1. Offender is a private individual
It is committed by a private individual
because if it is a public officer; then the
crime is under Art 128 which is: Violation
of Domicile.
2. He enters the dwelling of another
3. Such entrance is against the will of the latter.
As discussed under Art. 128; when
the law says against the will, there
must be a prohibition or opposition
from entering whether express or
implied.
Mere entry without consent will not bring about
QUALIFIED TRESSPASS TO DWELLING.
If the door is opened therefore it means that anyone
could enter even without the consent of the owner and
the moment he enters he is not liable for qualified
trespass to dwelling because there is no prohibition or
opposition from entering.
It is necessary that there is an opposition or prohibition
from entering. It can be expressed prohibition (e.g. A
note which states: “Do Not Enter” or the door was closed
and a person knocked so the owner got up and opened
the door but upon seeing the person he immediately
closed the door) or implied prohibition (e.g. Door is
closed even if it is not locked).
ART 281 – OTHER FORMS OF TRESSPASS TO
DWELLING
(TRESSPASS TO PROPERTY)
ELEMENTS
1. Offender enters the closed premises
or the fenced estate of another.
2. Entrance is made while wither of
them is uninhabited.
3. Prohibition to enter is manifest.
4. Trespasser has not secured the
permission of the owner or the
caretaker thereof.
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Trespass to property is committed by: any person DISTINCTION: GRAVE, LIGHT, OTHER LIGHT
who enters a closed premises or fenced estate THREATS
which at that time is uninhabited and the
GRAVE LIGHT OTHER LIGHT
prohibition to enter is manifest and the offender
enters the said uninhabited place without securing THREATS THREATS THREATS
the permission of the owner or the care taker The threat is The threat does Committed by
thereof. always & not amount to a threatening
always crime. It is another with a
TRESSPASS TO TRESSPASS TO amounting to always and weapon or draw
DWELLING PROPERTY and constituting always subject such weapon in a
Place entered into is a Place entered into is a a crime. It may to a demand of quarrel, unless it be
dwelling and closed premises or a fenced or may not be money or the in lawful self-
uninhabited. estate which is uninhabited. subject to imposition of defense; or orally
Prohibition to enter can demand of any other threatening, in the
Prohibition to enter must be
either be expressed or
manifest. money or condition, even heat of anger,
implied.
imposition of though not another with some
Entry was made against Entry was made without other unlawful. harm not
the will of the owner or securing the permission conditions. The constituting a
the possessor of the said from the owner or the care
offender may or crime, and who by
dwelling. taker of the said property.
may not attain subsequent acts
his purpose. show that he did
not persist in the
Q: Let’s say there are these town houses. In one of
the town houses, town house A; there’s no person idea involved in his
living at the moment and there was this sign: FOR threat; or orally
RENT/ FOR LEASE. X entered the said town threatening to do
house. What crime is committed by X? Is it qualified any harm not
trespass to dwelling or is it trespass to property? constituting a
A: It is trespass to property because it is
felony.
a closed premises which is uninhabited at
the time of the entering and he entered
without first securing the permission of the
ARTICLE 282 – GRAVE THREATS
owner/care taker.
PUNISHABLE ACTS:
1. Threatening another with the infliction upon his
Q: What if there is this house which is occupied by
person, honor or property or that of his family of any
husband A and B. Husband A and B went for a
wrong amounting to a crime and demanding money
vacation for a month. So for a month, there is no
or imposing any other condition even though not
person in the said place. X learned that there is no
unlawful, and the offender attained his purpose.
person in the said place. He entered the said place.
2. By making such threat with the infliction upon his
What crime is committed? Is it qualified trespass to
person, honor or property or that of his family of any
dwelling or trespass to property?
wrong amounting to a crime and demanding money
A: The crime committed is Qualified
or imposing any other condition even though not
Trespass to Dwelling. The said place is
unlawful and without the offender attaining his
a residential place and there is someone
purpose. (Elements for this act are the same with
who is occupying it even if at the moment
the first except that the purpose is not attained.)
there are no people because the said
3. By threatening another with the infliction upon his
husband A and B are on vacations, it is
person, honor or infliction upon his person, honor
still considered as an inhabited place.
or property or that of his family of any wrong
Therefore, the moment anyone enters, the
amounting to a crime, the threat not being subject
crime committed is trespass to dwelling
to any demand of money or imposition of any
and not trespass to property.
condition.

THREE KINDS OF THREATS:

ARTICLE 283 – LIGHT THREATS
1. Grave threats
Light threats is committed if a person threatens another with
2. Light threats
the commission of any wrong which does not amount to a
3. Other light threats
crime. But it always subject to a demanded money or the
imposition of any other condition even though not unlawful.

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
Art. 284 – BOND FOR GOOD BEHAVIOR
“In all cases falling within the two next preceding
articles, the person making the threats may also be required
to give bail not to molest the person threatened, or if he shall
fail to give such bail, he shall be sentenced to destierro.”
ARTICLE 285 – OTHER LIGHT THREATS
There are 3 instances or punishable acts under light
threats:
1. Threatening another with a weapon or by drawing
such weapon in a quarrel, unless it be in lawful self-
defense. Here, the weapon must not be
discharged.
2. Orally threatening another, in the heat of anger,
with some harm constituting a crime, without
persisting in the idea involved in his threat.
3. Any threat made in a jest or in the heat of anger
constitutes light threat only.
4. Orally threatening to do another any harm nt
constituting a felony.
So whether it be grave threats, light threats or other light
threats, the essence of threats is INTIMIDATION. It is a
promise of a future wrong, a promise of a future harm. Not
now, but in the future.
So, since it is a promise of a future wrong, threats may be
committed either personally or orally or it can also be
committed in writing or through an intermediary. If threats are
committed through writing or through an intermediary, the
penalty is qualified.
Q: What is the difference between grave threats, light threats
or other light threats?
A: In GRAVE THREATS, the threat will always
amount or constitute a crime. It may or may not be
subject to a demand money or condition. The
offender may or may not attain his purpose. But, in
grave threats, the threats will always amount or will
always constitute to a crime. On the other hand, in
case of LIGHT THREATS, the threat will not
constitute to a crime but it is always and always
subject to a demand of money or the imposition of
any other condition.
So in LIGHT THREATS, the threat threatened to be
committed will not amount to a crime, will not
constitute to a crime, however it is always subject
to a demand of money or the imposition of any
other condition, even though not unlawful.
Lastly, in case of OTHER LIGHT THREATS, other
light threats can be done by threatening another
with a weapon or by drawing such weapon in a
quarrel, unless it be in lawful self-defense or it can
be done by orally threatening another with a harm
amounting to a crime in the heat of anger. So it is
necessary that the offender is in the heat of anger
or he threatens another with a harm amounting to
a crime. But he did not pursue with the idea
involved in his threat. And the last one is by orally
threatening another which does constitute a crime.
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Q: So what if A went to the store and then from the said store
he learned that had been spreading negative rumors against
him. And so A was so mad, he was so angry that he went to
the house of B and he called on B: “B get out of the house! I
will kill you! I will kill you! Get out of the house B!” But B did
not get out of the house. Instead, it was the son of B who
came out of the house and said: “What do you want with my
father?” A angrily said that, “You let your father come out or
I will kill him because he has been spreading negative
rumors about me.” The son went inside the house and did
not come back. The father also did not come out of the
house. And so later, A just left the house. What crime is
committed by A? Is it grave threats, light threats or is it other
light threats?
A: The crime committed is under Article 285 –
OTHER LIGHT THREATS. Orally, in the heat of
anger, he threatened another with a harm
constituting a crime, but he did not pursue with the
idea in his threat. It is only other light threats.
Q: What if, let us say, A saw that B has a new car. It was a
luxury car. He knew that it was smuggled and so he told B:
“B, if you will not give me P500,000, I will call the Bureau of
Customs, I will tell Comissioner Biazon right now that your
car is smuggled.” What crime if any is committed by A
against B?
A: It is LIGHT THREATS. He threatened to commit
a wrong which does not constitute a crime. It is not
a crime to inform the Bureau of Customs that the
car was smuggled and it is subject to a demand of
money and the imposition of any other condition
even though not unlawful.
Q: What if A, who is the creditor of B, was inside the house
of B. He was asking B to pay his indebtedness. B said: “Get
out of my house. If I still see you in the afternoon when I get
back inside my house and if you are still here, I will kill you.”
What crime is committed?
A: In this instance where B told A : “Get out of my
house. If I still see you in the afternoon when I get
back inside my house and if you are still here, I will
kill you.” The crime committed is GRAVE
THREATS. There is a promise of a future wrong to
be committed in the afternoon if A is still there in the
house.
Q: What if in the same problem, A was asking B to pay his
indebtedness. B said: “Get out of my house! Otherwise, I will
kill you.” What crime is committed?
A: The crime committed is GRAVE COERCION.
The threat is present, direct, personal, immediate
and imminent. Not in the future, but now direct,
personal and immediate.
Note that in case of threats made while committing
physical injuries, threats are absorbed.
ARTICLE 286 – GRAVE COERCIONS
2 way of committing grave coercion:
1. Preventive Coercion
2. Compulsive Coercion
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PREVENTIVE COERCION – if a person prevents another,
by means of violence, threat or intimidation, from doing
something not prohibited by law.
COMPULSIVE COERCION – if a person compels another,
by means of violence, threat or intimidation, to do something
against his will, whether it be right or wrong, whether it be
prohibited or not by law.
So, to amount to preventive coercion, the offender by means
of violence prevents someone from doing something which
is not prohibited by law.
Q: Therefore, what if, the offender prevents someone from
doing something which is prohibited by law? So let us say A,
wanted to enter the house of B, against the will of B. X saw
A wanting to enter the house of B against the will of B. X
prevented A. A in his act of wanting to enter the house of B,
is an act prohibited by law, so X prevented A from doing so.
However, A still pursued with the act of entering and so what
X did in order to prevent him is that X boxed A resulting in
his injury of slight physical injuries. What crime is committed
by X?
A: It is not grave coercion. Because X is preventing
A by means of violence and intimidation, not from
doing something which is prohibited by law but from
doing something which is prohibited by law.
Therefore, it is not grave coercion.
So what crime is committed?
The crime committed is SLIGHT PHYSICAL
INJURIES.
Q: What if in case of grave coercion, it is necessary that the
offender compels another to do something against his will,
regardless of whether it be right or wrong, regardless of
whether it is allowed or prohibited by law. The fact is a
person cannot put the law in his hands and prevent someone
from doing something so long as it is against his will.
A: So in case of grave coercion, if the essence of
threats is intimidation or a promise of a future
wrong, a promise of a future injury, the injury or
threat is present, direct, personal, immediate and
imminent. It is NOW. That is why, grave coercion
cannot be committed in writing or through an
intermediary because it is always personal. Hence,
it is about to take place imminent and immediate.
Q: So how would you distinguish threat vs. coercion?
THREAT COERCION
The wrong threatened to
The wrong threatened to
be committed is direct,
be committed is in the
personal, immediate and
future
imminent
Cannot be committed in
May be committed in writing or through internet
writing or through an chatting because it is
internet chatting always personal and
immediate
It is violence or intimidation
The essence of threat is
amounting serious enough
intimidation
to amount to violence
ARTICLE 287 – LIGHT COERCION
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It is committed by a creditor who shall seize anything
belonging to his debtor by means of violence or intimidation
in order to apply the same to the indebtedness.
There is one form of light coercion under Article 287, that is
UNJUST VEXATION. It is a form of light coercion.
UNJUST VEXATION – refers to any human conduct, which
although not capable of producing any material harm or
injury, annoys, vexes or irritates an innocent person.
Example in Book I: a person walking and hit with a lead pipe
on the head.
CASE OF BALEROS, JR.:
There was a UST medical student. There was a
cloth soaked with chemical pressed on her face. So
there was this man, she was awakened with a man
on top of her placing a cloth soaked with chemical
pressed on her face. The charge was attempted
rape. Supreme Court said it was just UNJUST
VEXATION – nang-iinis lang daw yung lalaking
yun. So, Supreme Court said it is a human conduct
which annoys or vexes the said female medical
student.
Art. 288 – OTHER SIMILAR COERCIONS;
(COMPULSORY PURCHASE OF MERCHANDISE AND
PAYMENT OF WAGES BY MEANS OF TOKENS)
Other light coercion is committed by forcing or compelling
directly or indirectly or knowingly permitting the forcing or
compelling any employee or laborer to buy merchandise or
commodities from the said employer. And lastly, by paying
the wages due to the laborer or employees by any tokens or
object other than the legal tender currency of the Philippines
unless to be requested by the said employee or laborer.
So it is more on LABOR – other light coercion.
Q: What if a person, A threatened to kill B. and so B filed a
case of grave threats against A. The case was filed before
the court. Upon the filing of the court, what bail, if any, should
the court impose on A in order to insure that A will not make
good the said threat?
A: Under Article 284, we have BOND FOR GOOD
BEHAVIOR. Bond for good behavior is a bail which
is required by the court to be posted by any
accused only in the crimes of grave threats and
other light threats. In the crimes of grave threats or
other light threats, the court would allow or would
require an accused to file or to post a bond for good
behavior in order to ensure that he will not make
good the said threat. If the said accused failed to
pay or post the said bond for good behavior, then
the penalty hat would be imposed is destierro in
order to ensure that he will not make good the said
threat.
REVELATION OF SECRETS:
ARTICLE 290 – DISCOVERING SECRETS THROUGH
SEIZURE OF CORRESPONDENCE
We have seizure of correspondence in order to discover the
secrets of another.
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This is committed by any person who shall seize any without the consent of all the parties. Without being
correspondence of another in order to discover the secret of authorized by all the parties to the said private
any person. communication or spoken word.

NOTE: In case of seizure of correspondence in order to
discover the secrets of another, DAMAGE is not element.
Likewise, REVELATION is not an element.
The mere act of seizing the correspondence of another
with the intention to discover the secrets, the crime is
already consummated. It is not necessary that the secret
be revealed, it is not necessary that there be damage on the
part of the offended party.
ARTICLE 291 – REVEALING SECRETS WITH THE
ABUSE OF OFFICE
This is committed by a manager or by an employee or by a
servant who reveals the secrets of his principal or master
learned by him in such capacity.
It is the REVELATION OF SECRETS which will
consummate the crime, not merely discovery but revelation
of the said secrets. Again, damage is not an element. It is
not necessary that the offended party be prejudiced or
damaged.
ARTICLE 292 – REVELATION OF INDUSTRIAL
SECRETS
This is committed by any person in charge, employee or
workman of a manufacturing or industrial establishment who
shall learn and discover the secrets of the industry and shall
reveal the same to the prejudice of the owner thereof.
In case of revelation of industrial secrets, mere revelation
of those secrets will not suffice. There must be DAMAGE
OR PREJUDICE CAUSED TO THE OFFENDED PARTY.
The law requires to the prejudice of the owner thereof.
Q: So what if A told B to come inside his room and when B
entered the room, A started scolding B. In scolding B, A said
scandalous remarks against B. Unknown to A, B was tape
recording the private conversation between them. Can B
later use the said tape recording in order to file a case of
defamation or slander against A?
A: NO. Because the said act of tape recording
without being authorized by all the parties to a
private communication or spoken word is
inadmissible in any judicial, quasi-judicial,
legislative or administrative proceedings or
investigation.
The ONLY EXCEPTION is when a police officer or peace
officer is authorized by written order of the court to listen to,
intercept or record any communication in crimes involving
treason, espionage, inciting to war or giving motives for
reprisals, piracy, mutiny, rebellion, conspiracy and proposal
to commit rebellion, sedition, conspiracy to commit sedition
and kidnapping. Only in these instances and provided that
the said peace officer is authorized by a written order coming
from the court may he be allowed to intercept, listen to or
record the private communication or spoken word.

RA 92400 - ANTI-WARTAPPING LAW

The following acts are punishable:
1.) It shall be unlawful for any person, without
securing the consent of all the parties to any
private communication or spoken word, to tap
any wire or cable, or by using any other device
or arrangement to secretly overhear, intercept
or record such private communication or
spoken word by using a device commonly
known as a Dictaphone or dictagraph, walkie
talkie, tape recorder, or other similar devices.
2.) Knowingly possessing any tape record, wire
record, disc record, or any other such record,
or copies thereof, of these private
communication or spoken word.
3.) Replaying these any tape record, wire record,
disc record to another person.
4.) Communicating the contents of the said tape
record, wire record or disc record, in writing or
verbally to another person.
5.) Furnishing transcriptions of these tape record,
wire record or disc record whether totally or
partially to any other person.

What is foremost prohibited is the act of tapping, recording

or intercepting any private communication or spoken word

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
TITLE TEN
CRIMES AGAINST PROPERTY
Art. 293 – Who are guilty of robbery?
Robbery is committed by any person, who with
intent to gain shall take any personal property belonging to
another by means of violence against, or intimidation of any
person, or using force upon anything.
Elements of Robbery:
1. That the offender unlawfully takes a personal
property
2. That the said personal property belongs to another
person
3. There must be intent to gain in the taking of the said
property
4. That the said taking is either by means of violence
against, or intimidation of any person, or using
force upon anything
5.
Unlawful taking – is the deprivation of the offended party of
his personal property with an element of permanency. So, it
is necessary that in taking the personal property from
another person, there is an element of permanency.
The law requires that the property must be personal
property, not real property because real property is under
Article 312 – Occupation of real property.
The personal property must belong to another person
because if it do not belong to another person it cannot be
said that there is intent to gain on the part of the offender.
The law requires that there must be intent to gain.
Intent to gain is an internal state of mind. So how can you
prove intent to gain? The law presumes there is intent to gain
the moment there is taking of the personal property of
another person. Intent to gain is presumed by law.
Two ways of committing robbery:
1.) Robbery with violence against or intimidation
(Art.294)
2.) Robbery with the use of force upon things (Art.299)
The value of the property taken in robbery with violence
against or intimidation against people is immaterial because
the penalty is dependent on the violence used by the
offender against the offended party. However, in Robbery
with the use of force upon things (Art.299), the value of the
property taken is material because the penalty is dependent
on the value of the property taken.
Art.294 - Robbery with violence against or intimidation
of persons
The following acts constitute robbery with violence against
or intimidation of persons:
1.) When by reason or on occasion of the robbery, the
crime of homicide is committed.
2.) When robbery is accompanied by rape or
intentional mutilation or arson.
3.) When by reason or on occasion of such robbery,
any of the physical injuries resulting in insanity,
imbecility, impotency or blindness is inflicted.
4.) When by reason or on occasion of robbery, any of
the physical injuries resulting in the loss of the use
of speech or the power to hear or to smell, or the
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loss of an eye, a hand, foot, an arm, or a leg or the
loss of the use of any such member or incapacity to
go to work in which the injured person is thereto
habitually engaged is inflicted.
5.) If violence or intimidation employed in the
commission of the robbery is carried to a degree
clearly unnecessary for the commission of the
crime
6.) When in the course of its execution, the offender
shall have inflicted upon any person not
responsible for the commission of the robbery any
of the physical injuries in consequence of which the
person injured becomes deformed or loses any
other member of his body or loses the use thereof
or becomes ill or incapacitated for the performance
of the work in which he is habitually engaged for
more than 90 days or the person injured becomes
ill or incapacitated for labor for more than 30 days
7.) If violence employed by the offender does not
cause any of the serious physical injuries defined
in Article 263, or if the offender employs
intimidation only.
In other words, we have robbery with homicide, robbery with
rape, robbery with intentional mutilation, robbery with arson,
robbery with serious physical injuries, robbery with
unnecessary violence and lastly, simple robbery.
Robbery with Homicide
Robbery with homicide is a special complex crime or a
composite crime or a single indivisible offense. In reality two
or more crimes have been committed, the robbery and the
homicide yet, in the eyes of the law only one crime, a single
indivisible offense of robbery with homicide.
Q: When should the killing or the homicide take place?
A: In case of robbery with homicide, for as long as
the original intent of the offender, for as long original criminal
design is to commit robbery or to rob, the killing may take
place before, during or after the said robbery provided, that
the original intent/ original criminal design is to commit
robbery or to rob.
Since it is a special complex crime, regardless of
the number of the persons killed there is only a single
indivisible offense of robbery with homicide. Even if the
killing is an unintentional killing or accidental killing still, it is
a single indivisible offense of robbery with homicide. Even if
the victim of the said robbery is different from the victim of
the killing, it is still robbery with homicide. There lies the
difference between Article 294 and Article 267. In
kidnapping and serious illegal detention with homicide, the
victim of the kidnapping and serious illegal detention must
be the victim in the said killing to amount to kidnapping and
serious illegal detention. But in case of robbery with
homicide, regardless of who the offended party may be,
whether the offended party in robbery is different from the
offended party in the killing it is still robbery with homicide.
Q: So let us say, A entered the house of B in order to commit
robbery. He took the valuables therein and after taking the
jewelries suddenly the box of jewelries fell so X was awaken.
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When A saw that X was awaken, A shot X. X died. What
crime is committed?
A: Robbery with homicide. Because by reason or
on occasion of robbery, homicide was committed.
Q: What if in the same problem, when X was awaken, the
robber, A, shot X. The wife was also awaken and so the wife
started shouting so A also shot the wife. The wife also
died. What crime/s is committed?
A: Two persons are killed still, the crime committed
is still a single indivisible offense of robbery with
homicide. All the killings are merged into a
composite intergraded whole that is a single
indivisible offense of robbery with homicide.
Q: What if let us say, in the same problem, so A went to the
house of X and took the jewelries. He was on his way out
when he bumped the door and so the owner of the house
was awaken. So A went down and saw the back of the
robber. And so he chased the robber. In the garden, A tried
to shoot the owner of the house and so A jumped on him and
they struggled for the possession of the gun. In the course
of struggle for the possession of the gun, the gun fired hitting
a ballot vendor passing by. The ballot vendor died. What
crime/s is committed?
A: The crime committed is still the single indivisible
offense of robber with homicide. Since it is a
special complex crime, even if the victim of the
robbery is different from the victim of the homicide,
it is still robbery with homicide. Even if it is only
accidental killing it is still robbery with homicide so
long as the killing is by reason or on occasion of the
said robbery.
Q: So what if, A, B, and C entered the house of X in order to
commit robbery. They have already taken the valuables
when the owner of the house was awaken. It was only A
who saw the owner of the house was awaken and so A shot
X and killed him. Are they all liable for robbery with homicide
or only A who shot X?
A: All of them are criminally liable for the crime of
robbery with homicide. Under Article 8, that in case of an
express or direct conspiracy, the conspirators are liable only
for the crime agreed upon. The crime agreed is to commit
robbery but how come all of them are liable for homicide?
Because it falls under the exception that when the resulting
felony is a special complex crime because you cannot
separate or divide a special complex crime. Therefore, even
if it was only A who killed the victim, even if their agreement
is only to commit robbery, because homicide or the killing
was committed by reason or on occasion of the said robbery,
all of them are criminally liable for the crime of robbery with
homicide.
The only exception to the exception is when B and
C performed acts in order to prevent A from committing the
homicide.
CASE OF PEOPLE vs CABBAB
Let us say, A and B versus X, Y and Z. A and B
committed robbery and upon leaving the said place, X and
Y saw A and B and shot them and made gun fires. Z, a police
officer dove into the canal in order to prevent himself from
being killed. A and B went directly to X and Y and killed them
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both. And thereafter, A and B took the winnings. Based on
the circumstances or facts the fiscal filed the following cases
before the RTC, robbery, double murder, and attempted
murder, robbery because of the taking of the winnings,
double murder for the death of X and Y and attempted
murder as to the police officer who dove into the canal. What
is the ruling of the RTC? It said wrong ka fiscal! The crime is
robbery with double homicide and attempted murder. Then
it went to appeal on the Court of Appeals, sabiniya wrong
fiscal! Wrong ka din RTC! The crime committed is robbery
with homicide and attempted murder. Then it went up to the
Supreme Court. Sc said, malika fiscal! Mali ka RTC! Mali
kadn CA! Mali kayo lahat! The only crime committed is the
single indivisible crime of robbery with homicide. Because all
the acts are considered absorbed in the crime of robbery
with homicide despite the fact that two persons were killed,
despite the fact that one person was greatly injured, all these
circumstances are merged into a composite integrated
whole that is single indivisible offense of robbery with
homicide.
Robbery with rape
Just like robbery with homicide, is also a special
complex crime or a single indivisible offense. So, for as long
as the intention of the offender is to commit robbery, rape
may be committed before, during or after the commission of
robbery. Since it is a special complex crime, regardless of
the number of times the victim was raped, the crime
committed is only robbery with rape. There is no such crime
as robbery with multiple rapes. There is only robbery with
rape.
Q: So a woman was walking on her way home and because
it was pay day here comes X. X dragged the woman in a
dark place and took the bag and took the money inside it.
And then he found the woman attractive so he raped the
woman not once but twice. What crime/s is committed?
A: X committed the crime of robbery with rape
regardless of the times the woman was raped.
CASE OF PEOPLE vs SUYU
Two persons, boyfriend and girlfriend, they were
having snack and saw the shadow of 3 men. And these 3
men were pushing the truck trying to open the door. They
took their valuables and the boyfriend hurriedly left the
girlfriend allegedly to ask help to the police. And so the
girlfriend was alone with the three men and they dragged her
into a nipa hut and there she was raped by the mastermind,
Suyu. Not only she was raped by Suyu but also Cainglet
while, the other two was outside serving as lookouts. So the
said woman, Clarissa, was raped by two persons and she
was raped three times. Suyu and Cainglet raped her by
carnal knowledge. Not only that, Cainglet also inserted two
fingers to her genitals therefore, he also committed rape by
sexual assault. What crimes are committed by the 4
persons? What crime/s they should be criminally liable of?
Supreme Court said, they are all liable for the single
indivisible offense of Robbery with Rape. Regardless of the
fact that two persons raped the victim, regardless of the fact
that the victim was raped 3 times, regardless of the fact that
there is two nature of rape committed against the victim
(rape by carnal knowledge and rape by sexual assault), still
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the crime committed is the single indivisible offense of
robbery with rape.
There are four conspirators but not all of them
raped the victim. Yet they are all liable for robbery with rape
because the two lookouts did not perform acts in order to
prevent the consummation of the said rape. So since it is a
special complex crime and a single indivisible offense all the
other rapes are merged into a composite integrated whole
that is robbery with rape.
The same theory applies in case of robbery with intentional
mutilation and robbery with arson.
Robbery with intentional mutilation, arson and serious
physical injuries
For as long as the intent or the criminal design of
the offender is to commit robbery, the intentional mutilation,
arson or serious physical injuries may be committed before,
during or after the commission of the said robbery.
Q: So let say A and B saw X walking. It was pay day and so
A and B announced a holdup. They were both armed with
guns and so what X did since they were both armed with
guns, he gave the bag. By reason thereof, A and B already
left the place. While A and B was waiting for a ride in a
waiting shed, A and B divided the things they took from X.
So A told B, this is your share. B said, why is my share
smaller than your share?! And so B got and he shot A. A
died. What is the crime committed?
A: The crime committed is robbery with homicide
because even if it was also an offender who was
killed, the killing took place by reason of the said
robbery.
Q: So what if in the same problem, so A and B were already
dividing the things they took and B said, wait why is my share
so small? B got mad shot A but A did not die. A suffered
serious physical injuries. What crime is committed?
A: The crime committed is robbery with serious
physical injuries.
Q: What if in the same problem, A were dividing the things
and B said, why is my share so small compared to your
share? B got mad and what he did was took an ice pick from
his pocket and stab A in his face and placed the ice pick in
A’s face. A suffered serious physical injuries and deformity
in his face. It caused physical ugliness to A therefore there
is deformity. What crime/s is committed?
A: This time the crime committed by B is not the
single indivisible crime of robbery with serious
physical injuries but two crimes, Robbery and
Serious physical injuries under paragraph 3 of
Article 263 because of the deformity. Why?
Because under paragraph 4 of Article 294, when
the serious physical injury that resulted is a
deformity or the loss of any of the member of his
body, the law requires that the said physical injury
or deformity must be inflicted because of the
execution of a robbery and to a person not
responsible to the commission of the crime of
robbery. Here, the deformity was inflicted after the
robbery, not before. Not only that. The deformity
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was inflicted on A, the person responsible for the
commission of the robbery.
If the serious physical injuries inflicted resulted to a deformity
or to a loss of any of the member of his body or loss of the
use of any such member or incapacity to go to work in which
the injured person is thereto habitually engaged for more
than 90 days, under paragraph 3 of Article 263, it is required
that in order to amount to a single indivisible offense the said
deformity or serious physical injury must be inflicted in the
course of the execution of the robbery and to a person not
responsible to the commission of the robbery. Otherwise, it
will bring about a separate and distinct crime.
Art. 295. Robbery with physical injuries, committed in
an uninhabited place and by a band, or with the use
of firearm on a street, road or alley.
Art. 296. Definition of a band and penalty incurred by
the members thereof.
Art. 297. Attempted and frustrated robbery committed
under certain circumstances.
Art. 298. Execution of deeds by means of violence or
intimidation.
Section Two – Robbery by the use of force upon things
ROBBERY WITH USE OF FORCE UPON
THINGS
Art. 299. Robbery in an inhabited house or public
building or edifice devoted to worship
Another form of robbery is robbery with the use of force
upon things in Art 299.
In case of violence against persons, the value of the
property is not important because the penalty is the
basis of the violence.
In Art. 299, the basis of the penalty is the value of the
property taken.
3 ways of committing robbery with use of force upon
things:
1) When a person enters the dwelling, house, public
building or edifice devoted to worship where
personal property is taken through:
a. An opening not intended for entrance or
egress
b. By breaking any wall, roof, or floor or
breaking any door or window.
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c. By using false keys, picklocks or similar
tools
d. By using any fictitious name or pretending
the exercise of public authority
NOTE:
Under the first act, the essence of the crime is in
the unlawful entry; it is the act of trespassing and
also the taking of the property of another.
It is necessary that the entire body must have enter,
otherwise, even if there is breaking, it would only
amount to theft and that breaking would amount
only to aggravating circumstance. The Supreme
Court ruled that when the law used the word
“enter”, it means that the entire body must have
entered said place to take the property of another.
Example
A, in order to rob the house made an opening in the roof,
sufficient for him to enter. So he used a rope in going down
and thereafter he took the valuables and then left. What
crime is committed?
Robbery by use of force upon things. A made an
opening and he was able to enter fully.
What if he made an entry, let down a rope with a hook and
used it in taking the valuable.
The crime committed only is theft with aggravating
circumstance of the breaking of the roof. His body
did not enter the premises.
2) When the offender manages to enter said inhabited
place, dwelling, public place or place dedicated to
religious worship without any unlawful entry, or is
an insider, and once inside, he used force in
opening in order to:
a. Break doors, wardrobes, chests, or
any other kind of locked or sealed
furniture or receptacle
NOTE:
The second act is when the offender was able to
enter without unlawful entry or was an insider and
once inside, breaks the doors, wardrobes, chest,
receptacles, and thereafter took the personal
properties inside the house.
Example
A and B are brothers, living in the same house and in the
same room but have different cabinets where each of the
cabinets have locks. One time brother A was in need of
money and wanted to borrow money from brother B, but
brother B was out of the house. So what brother A did was
that he forcibly opened the cabinet of brother B and took
the expensive jewelries of brother B and appropriated the
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jewelry? What are the crimes committed? Is Brother A only
liable civilly?
A is guilty of robbery with use of force upon things.
He is an insider, and he used force to break open
the cabinet of B. He did not commit theft. Since the
crime committed is robbery, brother A is criminally
liable and civilly liable. Because under Article 332,
it is only on cases of theft, swindling, estafa, and
malicious mischief, wherein there’s no criminal
liability but only civil liability in case of relatives
living together.
In the same problem, what if A was in need of money, he
saw the expensive watch of B on top of the table and sold
the watch. What crime was committed?
A committed the crime of theft since there is no
breaking or forcibly opening the receptacle. Under
Art 332, he is only liable for civil liability. They are
free from criminal liability.
Art. 332. Persons exempt from criminal
liability. — No criminal, but only civil
liability, shall result from the commission
of the crime of theft, swindling or malicious
mischief committed or caused mutually by
the following persons:
1. Spouses, ascendants and
descendants, or relatives by affinity
in the same line.
2. The widowed spouse with respect
to the property which belonged to
the deceased spouse before the
same shall have passed into the
possession of another; and
3. Brothers and sisters and brothers-
in-law and sisters-in-law, if living
together.
The exemption established by this article
shall not be applicable to strangers
participating in the commission of the
crime.
Since it refers to simple crimes, if the crime committed is
estafa through falsification of public document, there will
be criminal liability. This exemption from criminal liability
will only lie in the cases mentioned in Art. 332.
3) When the offender manages to enter said inhabited
place, dwelling, public place, or place dedicated to
religious worship without any unlawful entry, once
inside he took the sealed receptacle outside to be
opened or forced open.
The offender was able to enter and once inside, he
did not use force to open the close cabinet or
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receptacle. Instead, he took the cabinet and
receptacle outside to open it.
Circumstances that will qualify robbery with use of force
upon things:
Art. 300. Robbery in an uninhabited place and by a band.
Under Article 300, if robbery is committed with
in an uninhabited place and by a band — the
law used the conjunction AND, both must
concur in order to amount a qualifying
circumstance, to increase the penalty. So it
should be in an uninhabited place and by a
band, therefore both must be present.
Art. 295. Robbery with physical injuries, committed in an
uninhabited place and by a band, or with the use of
firearm on a street, road or alley.
In case of robbery with serious physical injuries,
unnecessary violence or simple violence, how will the
crime be qualified?
The answer is under Art. 295, where if the said
robbery is:
1. Committed in an uninhabited place OR by
a band
2. By attacking any moving train, street car,
motor vehicle or airship
3. By entering the passenger’s
compartments in a train; or
4. Taking the passengers by surprise in their
respective conveyances
5. On a street, road, highway, or alley and
the Intimidation is made use of a firearm
NOTE:
That in case of robbery with violence or intimidation
on persons, the qualifying circumstances are
present, only one of these is sufficient to qualify the
penalty. The law here uses the conjunction OR not
AND.
Example:
A went to the house of B. A told B “this is a hold up and
bring out the valuables”. Instead of bringing the valuables
to A, B panicked and shouted. A therefore shot B. B died.
A also panicked and left the place without bringing his loot.
What is/are the crime/s committed?
The crime committed by A is attempted robbery
with homicide. This is also a special complex crime.
Here robbery was attempted because he was
unable to take any of the property. The fact that A
was able to announce hold-up and bring the
valuables to him means that the original design is
to commit robbery. It was attempted because he
was unable to take the property, and in the course
of thereof, he killed the owner.
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In order to amount to special complex crime, it is
necessary that both the robbery and homicide must
be consummated.
What if in the course of robbery, the said owner was shot
but was able to survive. What crime is committed?
The crime committed is robbery with physical
injuries depending on the injuries sustained by the
victim. In order to amount to robbery with homicide,
it is necessary that both crimes must be present
and there is no such thing as robbery with
frustrated homicide or attempted homicide, for
it is the law which provides for the crime which must
be complexed, and the law does not provide that
frustrated homicide or attempted homicide must be
complexed with robbery.
In the instant case, since the killing took place at
the spur of the moment, then it is robbery with
homicide.
Chapter Two
BRIGANDAGE
What if robbery was committed by 4 armed men?
Art. 296. Definition of a band and penalty incurred by the
members thereof.
A was walking, suddenly there are 4 men with knives and
took A’s bag which is full of money. A put up a fight. And
so these armed men killed A. What crime is committed? Is
the crime committed robbery in band with homicide?
There is no such crime as robbery by a band with
homicide. The said use of band is only an
aggravating circumstance. The proper designation
of the crime is robbery with homicide. The fact that
it is committed by 4 armed men is only an
aggravating circumstance. Under Art. 296, if a band
committed robbery, it is only an aggravating
circumstance.
Art. 306. Brigandage.
Under Article 306, it is committed by at least 4 armed men
for the purposes of -
1. committing robbery in the highway;
2. kidnapping persons for the purpose of extortion or
ransom
3. for any other purpose to be attained by means of
force and violence.
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Art. 296 Art. 306
Both require at least 4 armed persons
It is required that the 4 The crime is already
armed men must actually consummated by the mere
take part in the fact that 4 armed men
commission of the robbery formed a band of robbers.
It is not required that they
actually commit the
enumerated purposes.
PD 532 (THE ANTI-HIGHWAY ROBBERY LAW OF 1974)
In PD 532, brigandage is defined as the seizure of any
person for ransom, extortion, or other unlawful purposes, or
the taking away of property of another by means of violence
against or intimidation of persons of force upon things or
other unlawful means, committed by any person on any
Philippine highway.
Art 306 vs. PD 532, or the Anti-Highway Robbery Law
of 1974
Art. 306 PD 532
Requires that there must No requisite as to the # of
be at least 4 armed men perpetrators of the crime
Even a single person can
commit the crime of
brigandage
The mere formation of the There must be an actual
band of robbers for any of commission of the crime or
the purposes mentioned no crime will arise
will bring about the crime
There is a predetermined There is no preconceived
or preconceived victim victim. It is committed
indiscriminately on any
person passing on the
highway as long as it is
committed in a Philippine
highway.
2. Any person who, after having maliciously
damaged the property of another, shall remove
or make use of the fruits or object of the
damage caused by him; and
3. Any person who shall enter an inclosed estate
or a field where trespass is forbidden or which
belongs to another and without the consent of
its owner, shall hunt or fish upon the same or
shall gather cereals, or other forest or farm
products.
The definition is almost the same as robbery. The difference
lies in the case of robbery where there is violence or
intimidation of persons and use of force upon things, while
in theft, there is no violence, intimidation against persons or
force upon things.
Example:
1. A person who found a lost personal property of
another but did not give it to the police, there is
theft.
2. A damaged the property of B, he make use of that
damage.
3. There is a vacant lot guarded by X. A person
entered the vacant lot and took the fruits.
Valenzuela v. People
There is no frustrated theft. In this case, the offender took
boxes of tide from SM North Edsa and placed it in the taxi.
Before they were able to left the premises of SM, they were
apprehended. The offenders were charged of consummated
theft. They did not deny that they committed theft but their
defense is that they committed frustrated theft.
The SC En Banc in 2007 ruled that there is no crime as
frustrated theft. In case of theft, unlawful taking is deemed
complete the moment the offender gain possession of the
property of another, theft is consummated.
Art. 309. Penalties

Chapter Three When is theft qualified?

THEFT
Art. 308. Who are liable for theft. — Theft is committed
by any person who, with intent to gain but without
violence against or intimidation of persons nor force
upon things, shall take personal property of another
without the latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property,
shall fail to deliver the same to the local
authorities or to its owner;
Art. 310. Qualified Theft
Theft is qualified in the following instances:
1. If theft is committed by a domestic servant
2. If committed with grave abuse of confidence
3. If the property stolen is a (a) motor vehicle, (b) mail
matter, or (c) large cattle
4. If the property stolen consists of coconuts taken
from the premises of the plantation
5. If the property stolen is taken from a fishpond or
fishery
6. If property taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
other calamity, vehicular accident or civil
disturbance.
Example:
A is a domestic servant. When his master was out of the
house, A went to the masters’ bedroom and took the
jewelries. In the information cited that he was a domestic
servant but the information did not state that A took the
jewelries with grave abuse of confidence. Is A liable for
qualified theft?
Yes, according to the Supreme Court, the law uses
the conjunction OR. The fact that the accused is a
domestic servant, it will suffice. The law does not
require that abuse of confidence to be established.
It will suffice that the accused is a domestic servant.
A was a security guard. The owner of the house left his
key to the security guard. However, the security guard
used the key to open the house of the owner and took the
valuables. What crime is committed?
The Security Guard is liable for qualified theft
because of grave abuse of confidence.
RA 6539 (ANTI-CARNAPPING ACT)
Carnapping- is the taking with intent to gain, of motor
vehicle belonging to another without the consent of the latter,
or by means of violence against or intimidation of persons,
or by use of force upon things.
Elements:
1. Actual taking of motor vehicle
2. The vehicle belongs to another
3. There is intent to gain in the taking of the vehicle of
another
4. Said taking is taking without the consent of the
owner or by means of violence or intimidation or by
means of force upon things.
Example:
A was driving his car and suddenly felt the need to answer
the call of nature so he parked his vehicle. Suddenly, there
was X and saw A was out of the car, and the door of the
car was open and the key was left inside the car. X drove
away with the car. What is the crime committed?
The crime committed is carnapping. Even if there is
no violence or intimidation against person or force
upon things, so long as said taking is without the
consent of the owner, it will amount to carnapping.
Under Sec. 14, the penalty if there no violence or
intimidation against persons or use of force on
things, the penalty is 14 years and 8 months to 17
years and 4 months.
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In the given situation, what if A saw X and there was a fight
that ensued between them. X shot A, and X was able to
take the vehicle. A however survived due to immediate
medical treatment. What is/are the crimes committed by
X?
The crime committed by X is only carnapping. The
fact that X shot A, where there is frustrated
homicide, it falls under violence or intimidation
which was used by the offender in committing the
crime. Since there is violence, the penalty is 17
years and 4 months to 30 years.
If again, in the same problem, A tried to stop X and X shot
A. A died. What is the crime committed?
The fact that the owner is killed or raped as a
consequence, the penalty is reclusion perpetua to
death. It will bring about a higher penalty, but
not as a special complex crime because it is a
Special Penal Law. Though it is akin to a special
complex crime, the killing is absorbed. The crime is
carnapping. It is also not a bailable offense.
PD 533 (ANTI-CATTLE RUSTLING LAW)
Cattle Rustling - defined as the taking away by any means,
method or scheme, without the consent of the owner/raiser,
of any large cattle whether or not for profit or for gain, or
whether committed with or without violence against or
intimidation of persons or force upon things. It includes the
killing of a large cattle or taking it as a meat or hide without
the consent of the owner/raiser.
Large Cattle- shall include cow, carabao, horse, mule, ass,
or other domesticated member of the bovine family. Goats
are not large cattle. (sabi nung isang justice sa SC na prof
naming dati, si Lawyer daw pag kinidnap cattle rustling daw
tawag dun. Ang evil nya!)
Example:
A’s carabao was tied on the mango tree. X saw the
carabao alone. So what X did was he untied the carabao
and took the carabao away. A saw X with his carabao so
A tried to catch up with X. As A was able to catch up with
X, a fight ensued. X took his bolo and hacked A to death.
What is the crime committed by X?
The crime committed by X is only cattle rustling.
The fact that the owner was killed is within the
meaning of violence or intimidation against
persons. It will not bring about a separate and
distinct crime of murder. The Anti-Cattle Rustling
Law, although a special law, is not malum
prohibitum but a malum in se. Under Sec. 10 of the
law, it is expressly provided that this law amends
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Art. 309 and 310 of the RPC. Since it is an
amendment, the SC it is a malum in se and not a
malum prohibitum.
Art. 311. Theft of the property of the National Library and
National Museum.
The value of the property is immaterial because the
law prescribed the penalty of arresto mayor or fine
or both.
Art. 313. Altering boundaries or landmarks. — Any
person who shall alter the boundary marks or monuments
of towns, provinces, or estates, or any other marks
intended to designate the boundaries of the same, shall
be punished by arresto menor or a fine not exceeding 100
pesos, or both.
Chapter Five
CULPABLE INSOLVENCY

Chapter Four Art. 314. Fraudulent insolvency. — Any person who

USURPATION shall abscond with his property to the prejudice of his
creditors, shall suffer the penalty of prision mayor, if he be
Art. 312. Occupation of real property or usurpation of a merchant and the penalty of prision correccional in its
real rights in property. maximum period to prision mayor in its medium period, if
he be not a merchant.
2 acts punished under Art 312:
1) Occupation of real property which is committed by
any person who by means of violence against or
intimidation shall occupy the real property of
another
2) Usurpation of real rights in property committed by
any person who by means of violence against or
intimidation shall usurp any real rights in property
of another person

Example:
There was a vacant lot. Here comes A and B and his
family. The said land or property was being guarded by X.
A and B went inside the vacant lot and tried to build a nipa
house because they do not have any house. And so the
guard told them that A and B has no right to build a nipa
house because the lot is owned by Y. However, A and B
told the guard that they do not have any house. In the
course of the argument, A and B killed the guard. What
is/are the crimes committed?

The crime committed is only occupation of real

property. The killing is only a means to occupy the
real property. It falls under violence against or
intimidation of persons in occupying the real
property.

In the same problem A and B put up their house in the

vacant property. The owner learned this and went to A and
B’s house. However, A and B killed the owner.
In this case, two crimes are committed. The killing
took place after occupying the place. This time, the
crimes committed are occupation and homicide or
murder as the case maybe.

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
CHAPTER SIX – SWINDLING AND OTHER DECEITS
ART 315 – SWINDLING/ESTAFA
THREE KINDS OF ESTAFA:
I. ESTAFA WITH UNFAITHFULNESS OR ABUSE OF
AUTHORITY – ART 315 (1)
II. ESTAFA BY MEANS OF FALSE PRETENSES OR
FRAUDULENT ACTS EXECUTED PRIOR TO OR
SIMULTANEOUSLY WITH THE COMMISSION OF
THE CRIME – ART 315 (2)
III. ESTAFA THROUGH FRAUDULENT MEANS – ART
315 (3)
ELEMENTS: (whatever be the crime of estafa, there are
always two general/common elements):
1. The offender defrauded another by reason of abuse of
confidence or by means of deceit.
It does not necessarily mean that there must
always be deceit. In lieu of deceit, estafa can
be committed by means of abuse of
confidence.
2. Damage or prejudice capable of pecuniary estimation is
caused to the offended party or to a third person.
It is necessary that there must be damage or
prejudice caused to the offended party or to a
third person.
The law requires that this damage or prejudice
must be capable of pecuniary estimation
because the penalty in estafa is dependent on
the damage caused to the offended party.
Hence, it is necessary that the said damage or
prejudice must be capable of pecuniary
estimation. You can estimate its value
because the penalty is dependent on the value
of the damage caused.
Whatever be the kind of estafa, there must always
be the presence of these two elements.
I. ESTAFA WITH UNFAITHFULNESS OR ABUSE OF
CONFIDENCE
THREE PUNISHABLE ACTS:
a) By altering the substance, quantity, or quality
or anything of value which the offender shall
deliver by virtue of an obligation to do so, even
though such obligation be based on an immoral
or illegal consideration.
It can either be based on legal or illegal
consideration. The law does not take into
consideration that it must always be legal.
Even if the consideration is immoral or
illegal, still, estafa is committed if there is
an alteration or substitution.
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Q: A and B entered into an agreement, A has to deliver to B
premium quality of marijuana. B paid. A delivered two boxes
of marijuana to B. When B reviewed the said boxes of
marijuana, B discovered that on the uppermost portion, they
were premium quality marijuana but on the lower portion,
they were of poor quality marijuana. Can B file a case of
estafa against A?
A: Yes, B can file a case of estafa with
unfaithfulness or abuse of confidence against
A. This is because the law says that even if it is
based on an illegal or immoral consideration, there
must be a substitution of the quality or quantity, in
this case, of the said dangerous drugs which have
been delivered by A to B.
b) By misappropriating or converting, to the
prejudice of another, money, goods, or any
other personal property received by the
offender in trust or on commission, or for
administration, or under any other obligation
involving the duty to make delivery of or to
return the same, even though such obligation
be totally or partially guaranteed by a bond; or
by denying having received such money,
goods, or other property.
VERY POPULAR KIND OF ESTAFA
It is necessary that the offender received
from the offended party money, goods or
other personal property. When the said
offender receives such thing from the
offended party money, goods or personal
property, what has been transferred to the
offender was JURIDICAL POSSESSION
of the said property.
If only material possession has been
transferred to the offender, and the
offender misappropriated or converted the
same, the crime committed is only theft or
qualified theft but not estafa. So in order
for the crime of estafa to arise, it is
necessary that the offender has juridical
possession of the money, goods or
personal property.
Juridical Possession – is a possession
in the concept of an owner; it is a real right
over the property during the time that the
property is in his possession, he has
better right even than that of the owner of
the said property.
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Q: What if A rented a bicycle from B. A will use the bicycle
for three hours and shall pay B 500 pesos for the use of the
said bicycle. Upon payment, A is now using the bicycle.
Three hours had lapsed, A failed to deliver the bicycle to B.
B demanded the return of the bicycle. A did not return the
bicycle. Can B file a case of estafa against A?
A: B can file a case of estafa against A. Estafa is
the crime committed by A because when B gave
the bicycle to A, it was based on a contract of lease
(a contract of rent), hence, juridical possession had
been transferred from B to A. A, during the three-
hour period has juridical possession over the said
bicycle and during this period, A has better right to
the property than B, the owner thereof. When A
failed to return the said bicycle to B after three
hours, then he committed estafa.
Q: What if A told B to obtain a loan in his favor in a bank and
then he gave B his diamond ring as collateral for the said
loan. However, B, instead of using the ring as collateral for
the loan, B sold the ring and misappropriated the proceeds
of sale. What case, if any, may A file against B? Is B liable
for estafa?
A: B is not liable for Estafa. When A gave the ring
to B, what has been transferred to B is only material
possession of the ring. It is not juridical possession
because B is merely an agent of A so that B will be
the one to use the said ring as collateral in order to
obtain a loan in favor of A. Juridical possession
remains with the owner, A, hence the crime
committed is only qualified theft.
Q: What if A is a regular customer in the bank. A went to the
bank, went to the teller who usually deposits his money and
he gave the teller 1 million in cash plus the passbook. A told
the teller, “Here is my passbook and 1 million in cash. Please
deposit it to my account. I am in a hurry to go to work and be
back in the afternoon.” A left the passbook to the teller and
went to the office. In the afternoon, before going home, A
went back to the bank, however the teller was not there so
A asked for his passbook. The bank gave him the passbook
but when A looked at the passbook, the 1 million was not
deposited to his account. What crime/crimes if any may A file
against the teller on whom he gave the said money to
deposit in his bank account?
A: The crime committed by the teller is only
Qualified Theft. It is not estafa because when A
gave the money to the teller to deposit to his bank
account, what has been transferred was only
material possession of the said money. It is not the
juridical possession taking into consideration that
the participation of the said teller is as that of the
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bank, the teller being a mere employee of the said
bank. In fact, in case of deposits in bank, the said
client will not be able to get back the very same
money that he has deposited. Hence, the crime
committed by the teller is only qualified theft but not
estafa.
Q: What if A is an employee in a company, XYZ corporation.
He was a field worker and whenever he goes to the field to
work, he has this cash advance given by the company. One
time, he went to work with a cash advance, however, upon
returning to work, he failed to liquidate the cash advance. A,
despite notices by the company, failed to liquidate the cash
advance. So the corporation filed a case against A. Will the
case prosper?
A: The case will not prosper. The Supreme Court
said that a cash advance is equivalent to a loan,
therefore when the company gave cash advance to
the employee, there is not only transfer of the said
money to the employee but transfer of ownership of
the said money. The employee is now the owner of
the said money. When you say liquidate, it means
that he is paying his indebtedness to the company,
therefore their relationship as employer and
employee, insofar as the cash advance is
concerned, is that of a creditor-debtor and not that
of entrustor-entrustee. Hence, there is no estafa
committed, there is no theft committed. The liability
of the employee is only civil in nature. The company
can only file a case of sum of money against the
employee for failing to pay his indebtedness in the
form of cash advance to the company.
c) By taking undue advantage of the signature of
the offended party in blank, and by writing any
document above such signature in blank, to the
prejudice of the offended party or of any third
person.
Q: The manager of a company has a blank document which
contains only the signature. The manager gave it to the
secretary and told the secretary to use the document for
emergency purposes. When the manager left, the secretary
wrote in the document stating that the manager will shoulder
or pay his entire loan in a lending firm. What crime is
committed by the said secretary? Is the said secretary liable
for estafa or estafa through falsification of a private
document or falsification of a private document. Which of the
three crimes is committed by the secretary?
A: The crime committed is Estafa. This is
because the manager entrusted to the secretary
the document in blank which contains his signature
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and the secretary wrote therein above the signature
to the prejudice of the manager because the
manager now assumes an obligation. SO the crime
committed by the secretary is estafa.
Q: What if in the same problem, the secretary placed the
blank document on top of his table. Here comes B, a
customer of the said company. B while talking to the
secretary saw the document with the signature of the
manager and so he surreptitiously took one of those
documents, brought it home and wrote in the document
above the signature that the manager shall be the one to pay
all his indebtedness in a lending firm. What crime is
committed by the said customer? Is the customer liable for
estafa or estafa through falsification of a private document.
A: The customer is liable for Falsification of a
Private Document under Art 172. This is because
II.
he caused that the manager participated in an act
or proceeding when he did not so participate, one
of the acts of falsification punished in Article 171
and 172.
Why not estafa through falsification of a private
document?
Because there is no such crime as estafa
through falsification of a private
document. You cannot complex estafa
with falsification of a private document
because both estafa and falsification of a
private document HAVE DAMAGE AS
ELEMENT, and one and the same
damage cannot give rise to two crimes
therefore you can never complex estafa
and falsification of a private document. It
is either estafa or falsification of a private
document.
When is it estafa?
If estafa can be committed without
falsifying the private document but the
falsification of a private document merely
facilitated the commission of the crime,
then the appropriate charge is estafa
because the falsification of a private
document is merely incidental.
If estafa cannot be committed without
falsifying the private document, the crime
committed is falsification of a private
document because estafa is a mere
consequence.
So you only have to choose between
estafa and falsification of a private
document but you can never complex the
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two. There is no such crime as estafa
through falsification of a private
document.
But there is such a thing as estafa through
falsification of a public document because
in falsification of a public document,
damage is not an element. So in a deed of
absolute sale was falsified in order to
deceive another in the crime of estafa, it
will give rise to the complex crime of
estafa through falsification of a public
document, estafa through falsification of
an official document, estafa through
falsification of a commercial document.
Because in these kinds of falsification,
damage is not an element.
ESTAFA BY MEANS OF FALSE PRETENSES OR
FRAUDULENT ACTS EXECUTED PRIOR TO OR
SIMULTANEOUSLY WITH THE COMMISSION OF
THE FRAUD
FIVE PUNISHABLE ACTS:
a) By using fictitious name, or falsely pretending
to possess power, influence, qualifications,
property, credit, agency, business or imaginary
transactions, or by means of other similar
deceits.
Q: What of there were four licensed nurses who all want to
work in Canada. Here comes X. X learned that A, B, C and
D passed the board so he went to their house and told them
that X has a placement agency that has all the qualifications
to help them find work in Canada. A, B, C and D believed X,
and X demanded that they give X 100k for processing fees.
They gave the money to X. A, B, C and Dnever saw X again.
Later X was arrested. What are the crimes committed by X?
A: A, B, C and D can file two cases against X.
Estafa under article 315 (2)(a) and Illegal
Recruitment in Large Scale under the Labor
Code. These two cases are cumulative and not
exclusive each other, hence, the offender can be
charged of these two crimes at the same time.
Estafa under 315 (2) (a) is committed because X
misrepresented to them that he has the
qualification and the agency to bring them to work
in another country when in fact, he does not have
such qualification and agency. Where it not for the
said misrepresentation by X, the offended parties
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A, B, C and D would not have parted with the said
100 Thousand pesos in cash.
The other crime committed by X is Illegal
Recruitment in Large Scale. In Labor Code, if
Illegal Recruitment is committed against three or
more persons, individually or as a whole, it is
considered as Illegal Recruitment in Large Scale.
On the other hand, if it is committed by five or more
persons, it is considered as Syndicated Illegal
Recruitment. Both crimes are considered crimes
involving economic sabotage under the Labor
Code and is the reason why it is a non-bailable
offense.
So if the only charge is estafa under 315 (2) (a)
is the only charge, the offender can post bail
but if there is also a charge of Illegal
Recruitment in Large Scale, then he shall be
behind bars while the case is ongoing.
b) By altering the quality, fitness, or weight of
anything pertaining to his art or business.
Q: In the market, you bought a kilo of apples. The vendor put
on the scale one apple which is already one kilo. What crime
if any is committed by the vendor?
A: The crime committed estafa by altering the
quality, fitness or weight of anything pertaining
to his art or business. He alters the weight of the
apple which pertains to his business and therefore
he can be held liable for estafa under 315 (2)(b).
c) By pretending to have bribed a Government
employee
d) By postdating a check or issuing a check in
payment of an obligation when the offender had
no funds in the bank OR his funds deposited
therein were not sufficient to cover the amount
of the check.
Also a very popular form of estafa – estafa
by postdating a check.
For this kind of estafa to arise, it is
necessary that the issuance of the check
must be in concomitance with the
defraudation (act of defrauding) because
note that Art 315 says that estafa by
means of false pretenses or fraudulent
acts exerted prior to or simultaneously
Dizon | Manalo | Navarez | Shyu | Tubio
with the commission of fraud. Therefore, it
is necessary that the issuance of the
check is in concomitance with the
defraudation, that is, the offender would
not have parted with his property would it
not for the promise that the check would
be funded.
The offender is given a period of three
days to make good of the check. If the
offender failed to make good the check, it
is said to be prima facie evidence of deceit
constituting the fraudulent act or false
pretenses.
Q: A was constructing his vacation house. He was suddenly
run out of materials so A went to B. A told B that he is in need
of the construction materials. B said, “okay, you can get your
construction materials.” A said “I don’t have money at the
moment. I will pay next week.” So B gave the needed
construction materials, boarded them in A’s truck and A
went. A week after, B went to A, asking for the payment of
the construction materials. A said “B, I have no money at the
moment. B, I am issuing to you a check, post-dated, on the
thirtieth day of the month. B, I guarantee you, on the thirtieth
day of the month, this check will be funded. I will have money
deposited in here because it is my payday.” B received the
check. On the thirtieth day of the month, the date stated on
the check, B deposited the check, however the check was
dishonored due to insufficiency of funds. B sent a notice of
dishonor to A. However, A, despite receipt of the said notice
of dishonor failed to make good of the check or make
arrangement with the bank in order to cover the amount of
the check. What case, if any, can B file against A? May B file
a case of estafa under Art 315 (2)(d) against A or can B file
a case of violation of BP 22 against A?
A: B can only file a case of violation of BP 22
against A. B cannot file a case of estafa under
Art 315 (2) (d) because B has already boarded the
construction materials and A has already taken the
construction materials. A week later, B went to A
asking for the payment and it was only at the time
that A gave the check that bounced. Therefore the
issuance of the check was in payment of an
obligation which already exists at the time. Estafa
under 315 (2)(d) cannot be committed if the check
was issued in payment of a pre-existing obligation
because for estafa under Art 315 (2)(d) to arise, it
is necessary that the issuance of the check is in
concomitance with the defraudation.
Q: A is in need of construction materials, he went to B. A
said he needed construction materials. B said he can get it
if he had money. A said he didn’t have any money at the
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moment but was issuing a postdated check instead dated on
the thirtieth day of the month. He guaranteed B that the
check will be funded on the thirtieth day of the month. B
received the check and boarded the construction materials
needed by A inside the truck of A. On the thirtieth day of the
month, B deposited the check but the check was dishonored
by the bank for insufficiency of funds. Notice of dishonor was
sent to A. However, despite of lapse of three days, A failed
to make good of the check or at least made arrangement
with the bank in order to cover the full amount of check. May
B file a case of estafa under Art 315 (2) (d) against A? May
B file a case of violation of BP 22 against A?
A: B can file both Estafa under Art 315 (2) (d)
and violation of BP 22 against A. Estafa was
committed by A because the check was issued, it
was only received by B at the time of the
construction of materials was delivered. The check
was received by B upon guarantee given by A that
on the thirtieth day of the month, the check will be
funded. Therefore, the issuance of the check was
in concomitance with the defraudation. Estafa
under Art 315(2)(d) is committed.
Likewise, violation against BP 22 is committed
because violation of BP 22 will arise whenever a
check had been issued and the said check was
dishonored upon presentment to the drawee bank.
There immediately arises violation of BP 22. (The
essence of the crime of BP 22 is the issuance of a
worthless check)
A can be prosecuted for two crimes – Estafa under
Article 315 (2)(d) and violation of BP 22 – at the
same time. These remedies are committed not
exclusively of each other therefore A can be
prosecuted at the same time of both cases.
e) By obtaining any food, refreshment or
accommodation at a hotel, inn, restaurant,
boarding house, lodging house, or apartment
house and the like without paying therefor, with
intent to defraud the proprietor or manager
thereof, OR by obtaining credit at a hotel, inn,
restaurant, boarding house, lodging house, or
apartment house by the use of any false
pretense, OR by abandoning or surreptitiously
removing any part of his baggage from a hotel,
inn, restaurant, boarding house, lodging house
or apartment house after obtaining credit, food,
refreshment or accommodation therein without
paying for his food, refreshment or
accommodation.
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The offender went to a hotel or inn to
obtain food, refreshment or
accommodation, he did not pay. Or he
obtain credit, he did not pay. Or his goods
are inside the hotel, he abandons his
goods, he abandons his valuables, he
surreptitiously removes parts of his
baggage therein.
III. ESTAFA THROUGH FRAUDULENT MEANS
THREE PUNISHABLE ACTS:
a) By inducing another, by means of deceit, to
sign any document
CASE: INTESTATE ESTATE OF
MANOLITA GONZALES VDA. DE
CARUNGCONG v. PEOPLE
In this case, the Japanese son-in-law asks
the mother-in-law to sign a document. He
induced her to sign a document saying
that it was about taxes but in truth and in
fact, it is a SPA for the sale of the property
in Tagaytay and by reason thereof, the
mother-in-law, who was already blind,
signs the document therefore Sato, the
Japanese son-in-law, was able to sell the
said property. This is the kind of Estafa by
inducing another by means of deceit to
sign a document.
b) By resorting to some fraudulent practice to
insure success in a gambling game
In the book of Reyes, there was a
cockfight. The offender removed the thing
on the feet of rooster and so, by reason
thereof, he won the game. So the offender
resorted to some fraudulent practice to
insure success in the gambling game.
c) By removing, concealing, or destroying, in
whole or in part, any court record, office files,
document, or any other papers
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BOUNCING CHECKS LAW (B.P. 22)
[relate to Art 315 (2) (d)]
SECTION 1 – CHECKS WITHOUT SUFFICIENT FUNDS
ACTS PUNISHABLE:
I. Making or drawing and issuance of a check knowing
at the time of issue that the offender does not have
sufficient funds in the bank.
The drawer of the check knew that at the time of
the issuing of the check, he has no funds in the
bank
II. The failing to give sufficient funds or credit with the
drawee bank such that when the check presented
within the period of 90 days from the date appearing
on the check, it was dishonored by the drawee bank.
At the time of the issuance of the check, the drawer
has funds in the bank, however, the crime will arise
because he failed to make good the check or he
failed to keep funds to the said drawee bank within
the period of 90 days such that when the check was
deposited within 90 days, it was dishonored by the
drawee bank.
SECTION 2 – PRIMA FACIE EVIDENCE OF KNOWLEDGE
OF INSUFFICIENCY OF FUNDS
The making, drawing and issuance of a check payment of
which is refused by the drawee because of insufficient funds
in or credit with such bank, when presented within ninety (90)
days from the date of the check shall constitute prima facie
knowledge of insufficiency of funds.
This prima facie knowledge of insufficiency of
funds, however, will not arise if the drawer of
the check deposited the amount necessary to
cover the check within five (5) banking days
from the date of receipt of notice thereof.
Therefore, for the prima facie of knowledge of
insufficiency of funds to arise, the following are
the elements or the requisites:
1. The check must be deposited within 90 days
from the date appearing on the check.
2. That the drawer of the check received a
notice of dishonor either from the bank or from
the payee or holder of the check
3. The drawer of the check failed to make
good of the check within 5 banking days.
No prima facie knowledge of insufficiency of funds
The drawer of the check received a notice of
dishonor within five days, he deposited the amount
in the bank to cover the check, there will arise no
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prima facie evidence of knowledge of insufficiency
of funds.
Within 5 banking days, he went to the bank and
made arrangement for the amount necessary to
cover the check.
Five banking days is important
Q: What if A issued a check to B in favor of an obligation, B
was however a businessman who was too busy so he was
able to deposit the check 120 days from the date appearing
on the check (beyond the 90-day period). The check
presented was dishonored. Notice of dishonor was sent to A
and A failed to make good the check within 5 banking days.
Can B still file a case for violation of BP 22 against A?
A: Yes, B can file a case for violation of BP 22
against A. This is because for as long as a check
is not yet a stale check, if the check was deposited
and it was dishonored, violation of BP 22 is
committed. Here, the check was deposited 120
days from the date appearing on the check. The
fact that it was deposited beyond the 90-day period
would only mean that there is no longer prima facie
presumption of knowledge of insufficiency of funds.
However, such prima facie presumption knowledge
of insufficiency of funds can be proven through
other evidence, so still, violation of BP 22 is
committed.
When is BP 22 not committed?
WONG v. CA
In this case, the check was deposited 157 days
after the date appearing on the check.
The SC said that it is not yet a stale check. A check
becomes stale when it is deposited after six months
or after 180 days.
Q: B was so busy, he deposited the check on the 181st day
from the date appearing on the check. The check was
dishonored. Can he file a case of violation of BP 22 against
A?
A: No, B cannot file a case of violation of BP 22
against A. This is because the check has no more
value since it is already a stale check under the
Negotiable Instruments Law. It is no longer the fault
of the drawer that he has no funds in the bank. It is
the fault of the holder or the payee of the check that
he failed to deliver or deposited the check within the
period required by law.
SECTION 1 – PENALTY
Under Section 1 of BP 22, the penalty for violation of BP 22
is imprisonment of 30 days to 1 year or a fine not less than
but not more than double the value of the check or in no case
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to exceed 200, 000 pesos, or both fine and imprisonment at
the discretion of the court
Are these still the penalties or have they been
amended by the SC by SC-A.C. No. 12-2000 and SC-
A.C. No. 13-2001?
The penalty of 30 days to 1 year and the fine
are still the penalty prescribed by law. Even if
the SC issued these two circulars, the SC
cannot amend the law. The SC does not have
that power; only congress has that power.
SC-A.C. No. 12-2000
It is stated in SC-A.C. No. 12-2000 that in lieu of
imprisonment, the penalty to be imposed in violation of BP
22 should only be fine, that is, if based on the facts and
circumstances of the offense and the offender, the check
was issued in good faith or under mere mistake of fact
without any taint of negligence. SC said that the appropriate
penalty should be fine in lieu of imprisonment.
Because of this SC-AC No. 12-2000, many MTC judges
imprisonment is no longer a penalty for violation of BP 22.
They thought that now, the penalty for violation of BP 22 is
only fine. And because of this misunderstanding on the part
of MTC judges, the SC has to issue another administrative
circular, the SC-A.C. No. 13-2001 in order to clarify SC-A.C.
No. 12-2000.
SC-A.C. No. 13-2001
The SC made the following clarifications:
1. The SC-A.C. No. 12-2000 does not remove
imprisonment as an alternative penalty for violation of
BP 22. Therefore, imprisonment is still a penalty for
violation of BP 22.
2. What SC-A.C. No. 12-2000 only establishes is a rule
of preference on the imposition of the penalty such that
if the offender acted in good faith or under mere mistake
of fact without any taint of negligence, the appropriate
penalty is fine in lieu of imprisonment.
3. The SC said if the penalty imposed by the court is fine
only, and the said offender or drawer of the check is
insolvent to pay the fine, then there is no legal obstacle
for the imposition of subsidiary imprisonment under Art.
39 of Book I of RPC.
ART. 316 – OTHER FORMS OF SWINDLING
OTHER FORMS OF SWINDLING CAN BE COMMITTED
BY THE FOLLOWING:
1. Any person who, pretending to be owner of any real
property, shall convey, sell, encumber or mortgage
the same.
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2. Any person, who, knowing that real property is
encumbered, shall dispose of the same, although
such encumbrance be not recorded.
3. The owner of any personal property who shall
wrongfully take it from its lawful possessor, to the
prejudice of the latter or any third person.
4. Any person who, to the prejudice of another, shall
execute any fictitious contract.
5. Any person who shall accept any compensation
given him under the belief that it was in payment of
services rendered or labor performed by him, when
in fact he did not actually perform such services or
labor.
6. Any person who, while being a surety in a bond
given in a criminal or civil action, without express
authority from the court or before the cancellation
of his bond or before being relieved from the
obligation contracted by him, shall sell, mortgage,
or, in any other manner, encumber the real property
or properties with which he guaranteed the
fulfillment of such obligation.
Q: What if A is a debtor, in order to defraud his creditor, A as
the debtor, has an obligation which is due and demandable.
He has only 1 property – a property in Quezon City – which
can be attached by his creditor. Now, in order to defraud his
creditor, he executed a fictitious contract selling the said
property to B with the intention to defraud his creditor. What
is the crime committed by A? Is A liable for Fraudulent
Insolvency under Art. 314 or is A liable of other forms of
swindling under Art. 316?
A: A is liable of other forms of swindling under
Art. 316. Because the contract that he executed in
favor of B is only a fictitious contract. It is not a real
contract of sale conveying his property to B.
Q: What if A is a debtor, in order to defraud his creditor, A as
the debtor, has an obligation which is due and demandable.
He has only 1 property – a property in Quezon City – which
can be attached by his creditor. To defraud his creditor what
he did was, he sold the said property to B via a deed of
absolute sale, his intention to defraud his creditor. What
crime if any is committed by A?
A: A committed Fraudulent Insolvency. The
contract is a real transfer of property from A to B. It
is not a fictitious contract.
If it is a fictitious contract – the crime committed is
other forms of swindling under Art. 316
If it is not - the crime committed is Fraudulent
Insolvency
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Art. 317 – SWINDLING A MINOR located at the time of the execution of the mortgage,
without the written consent of the mortgagee, or his
Who is liable?
executors, administrators or assigns.
Any person who taking advantage of the
II. Any mortgagor who shall sell or pledge personal
inexperience or emotions or feelings of a
property already pledged, or any part thereof, under the
minor, to his detriment, shall induce him to
terms of the Chattel Mortgage Law, without the consent
assume any obligation or to give any release
of the mortgagee written on the back of the mortgage
or execute a transfer of any property right in
and noted on the record hereof in the office of the
consideration of some loan of money, credit or
Register of Deeds of the province where such property
other personal property, whether the loan
is located.
clearly appears in the document or is shown in
any other form.

Art. 318 – OTHER DECEITS CHAPTER EIGHT – ARSON AND OTHER CRIMES
INVOLVING DESTRUCTIONS
Who is liable?
Any person who, for profit or gain, shall
interpret dreams, make forecasts, tell fortunes,
ARTICLES 320 – 326 speak about Arson. These had
or take advantage of the credulity of the public
already been repealed by PD 1613 – THE LAW ON ARSON.
in any other similar manner.
However, although Articles 320 – 326 had been repealed
by PD 1613, Article 320 has been brought back into life by
If the offender commits any act of swindling, any act of
RA 7659.
deprivati0n not punishable under Art. 315, 316 and 317,
it is punishable under Art. 318 – Other Deceits.
So any other form of deprivation would be under Art. That is why, insofar Article 320, the crime is
318 – Other Deceits. Destructive Arson. And we have PD 1613 which
punishes Simple Arson or Other Cases of Arson.
Q: What about Madam Auring? She tells fortune. What if a
Do not consider Section 2 of PD 1613 which punishes
person went to Madam Auring asking for his fortune and
Destructive Arson because Destructive Arson is
what is in his future, and based on the readings of the card,
under Article 320 of the RPC as it has been brought
Madam Auring said “You will get sick on this particular day.
back by RA 7659.
You will die upon this particular day.” Because of this, the
person could no longer sleep. He has been thinking about Q: What if there was this maid, the want to go to the
his sickness and his death. Can he file a case against province, let’s say it was Christmas time. He asked
Madam Auring for Other Deceits under Art. 318? permission from the master of the house, the master of the
house did not allow the maid to go to her province. So the
A: Yes, he can file a case of Other Deceits
maid got mad. To make revenge, she burned the house at
against Madam Auring. Because obviously for
night and left the house. However, the master of the house
profit or for gain, Madam Auring tells his fortune,
together with his family were not awakened by the said
which is obviously an erroneous one. How can
burning and so they all died by reason of the said fire. Not
someone predict the death of a person? How can
only that, the sad burning of the house of the master also
someone predict when a person will be ill or sick?
affected 5 nearby houses. All in all, 5 houses were burned
Obviously it is done in order to defraud this person
by the said fire and also the master and said members of the
and this person had been damaged because this
family all died in the course of the said fire. What crime is/are
person could no longer sleep and can think only of
committed by the said helper?
his sickness and death.
A: The helper is liable only for the crime of
Simple Arson Other Cases of Arson under PD
CHAPTER SEVEN – CHATTEL MORTGAGE 1613 – Sec. 3. The fact that the master died would
only qualify the penalty imposable of her. But, it will
Art. 319 – REMOVAL, SALE OR PLEDGE OF
not bring about the crime of Arson with Homicide.
MORTGAGED PROPERTY
There is no such crime as Arson with Homicide or
ACTS PUNISHABLE Arson with Multiple Homicide.
I. Any person who shall knowingly remove any personal Why is it that the crime committed is only
property mortgaged under the Chattel Mortgage Law to Simple Arson or Other Cases of Arson?
any province or city other than the one in which it was

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
The crime committed is Simple Arson or Other
Cases of Arson because the fact that what the
maid burned is an inhabited house or dwelling,
the crime is only Simple Arson or Other Cases
of Arson.
Destructive Arson is found under Art 320 of the
RPC while Simple Arson and other arson is
repealed by PD 1613 repealing Article 320 to 326
B of the RPC. Even though there are five deaths,
the deaths will be absorbed in the crime of arson
and will only qualify the penalty to death. The maid
is only liable for simple arson, because what has
been burned is an inhabited dwelling. For as long
as the thing burned is an inhabited house or
dwelling, the crime committed is simple arson. If in
the course of burning the dwelling, homicide
results, the crime committed is still arson.
If the intention is to kill the offended party,
and the means employed is through burning the
house, the crime committed is MURDER. If
however, the intention of the offender is to destroy
the property of the offended party by fire, and the
offender did not know that someone is inside and
death results, the crime is still simple arson. It will
only qualify the penalty to RP to death.
Q: A killed B while sleeping. The crime committed is murder.
In order to conceal the crime, A burned the house.
A: This time, there are two crimes committed. A is
liable for Murder for killing B and Arson, in
order to hide the crime committed. The arson
committed is destructive arson, as it is defined by
the law.
So what is Arson?
Arson is the malicious destruction of the property
by means of fire.
2 KINDS OF ARSON:
1. DESTRUCTIVE ARSON – punished under Art. 320
of the RPC
2. SIMPLE ARSON – punished under PD 1613
particular Section 3
ART. 320 – DESTRUCTIVE ARSON
HOW IS DESTRUCTIVE ARSON COMMITTED?
1. One or more buildings or edifices, consequent to
one single act of burning, or as a result of
simultaneous burnings or committed on several or
different occasions;
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2. Any building of public or private ownership, devoted
to public in general, or where people usually gather
or congregate for a definite purpose such as but not
limited to official government function or business,
private transaction, commerce, trade workshop,
meetings, conferences, or merely incidental to or
for a definite purpose such as but not limited to
motels, transient dwellings, public conveyances or
stops, or terminals, regardless of whether the
offender had knowledge that there are persons in
said building or edifice at the time set on fire and
regardless also of whether the building is actually
inhabited or not.
3. Any train, locomotive, ship or vessel, airship or
airplane, devoted to transportation or conveyance,
or for public use, entertainment and leisure;
4. Any building, factory, warehouse installation and
any other appurtenances thereto, which are
devoted to the service of public utilities;
5. Any building the burning of which is for the purpose
of concealing or destroying the evidence of another
violation of law, or for the purpose of concealing
bankruptcy or defrauding creditors or to collect from
insurance.
There is also destructive arson in the following
instances:
1. When the arson is committed by 2 or more persons,
regardless of whether their purpose is merely to
burn or destroy the building or the burning merely
constitutes an overt act in the commission of
another violation of the law;
2. When any person shall burn:
a. Any arsenal, shipyard, storehouse or
military power or fireworks factory,
ordinance, storehouse, archives or
general museum of the Government; or
b. In an inhabited place, any storehouse or
factory of inflammable or explosive
materials.
Q: What if in the course of the commission of Destructive
Arson, someone died. The airplane was burned. The
purpose was to burn the said airplane. Unknown to the
offender, someone was inside the said airplane and the said
person died. What crime is committed by the offender?
A: The offender is liable for Destructive Arson
under Article 320. The fact that someone died will
not give rise to a complex crime. The crime
committed is only Arson.
After the last paragraph of Article 320, it is stated that – if
as a consequence of the commission of any of the acts
constituting Arson, death results, then, the mandatory
penalty of death shall be imposed. So here, the fact that
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someone died in the course of the commission of Destructive
Arson would mean that the penalty to be imposed of the said
offender would be death. But, the crime committed is only
Arson. There is no such thing as Arson with Homicide.
ANTI-ARSON LAW (P.D. 1613)
SIMPLE ARSON OR OTHER CASES OF ARSON IS
COMMITTED IF WHAT HAS BEEN BURNED IS:
1. Any building used as offices of the government or
any of its agencies;
2. Any inhabited house or dwelling;
3. Any industrial establishment, shipyard, oil well or
mine shaft, platform or tunnel;
4. Any plantation, farm, pasture land, growing crop,
grain field, orchard, bamboo grove or forest;
5. Any rice mill, sugarmill, cane mill, or mill central;
6. Any railway or bus station, airport, wharf, or
warehouse.
Q: A plantation was burned. While the plantation was
burning, the field worker was sleeping and the field worker
died as a result of the said burning of the plantation. What
crime is committed by the offender?
A: The crime committed by the offender is only
Simple Arson or Other Cases of Arson under
PD 1613.
What about the fact the someone died?
Under Section 5 of PD 1613, if by reason
or on occasion of the said arson, death
results, the penalty shall be reclusion
perpetua to death.Therefore, the crime
committed is only Arson. You do not
complex it with Homicide. But the fact that
someone died, the penalty is qualified.
The penalty is increased to reclusion
perpetua to death.
PENALTY FOR DESTRUCTIVE ARSON: RECLUSION
PERPETUA TO DEATH
If as a result of the commission of any acts of
destructive arson, death results, the penalty should
be death.
PENALTY FOR SIMPLE ARSON: RECLUSION
TEMPORAL TO RECLUSION PERPETUA
Under Section 5 of PD 1613, if by reason or on the
occasion of simple arson, death results, the
penalty is reclusion perpetua to death.
Therefore, whatever may be the crime may be, if by
reason of said arson, death results, it will
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aggravate the crime of arson and the homicide will
be absorbed in the arson.
Q: What if a person wants to kill B. So in order to kill B, B
was sleeping inside his nipa hut, A burned the said nipa hut
and so, B died while sleeping. What crime is committed by
A?
A: A committed the crime of murder. His
intention is to kill B by burning.
Q: If A went inside the house of B and then he saw B and
stabbed B several times. B died. Thereafter, to conceal the
killing of B, a burned the house of B. it was a total burn.
A: This time, A committed two crimes. Murder
for killing B treacherously and Arson, because
he burned the house of B in order to conceal the
commission of the said act of killing. The arson
committed is simple arson.
Q: What if A wanted to get revenge at B so he decided to
burn the property of B. in the course thereof, a servant was
sleeping inside. What crime is committed by A?
A: A is liable only for Arson. The fact that
someone is killed in the course of the said Arson,
the crime committed is only arson. And the fact that
the said servant died while the said burning took
place, you only qualify the penalty, the crime
committed is Arson and the penalty is qualified to
reclusion perpetua to death.
Q: What if A wanted to burn the property of B. So what he
did was he poured gas on the said walls of the property.
However, before he could set the property on fire. Someone
saw him and so, he was arrested. What crime is committed?
A: The crime committed is Attempted Arson.
Q: What if A placed rags near the property of B. His intention
is to burn the property of B. and then he placed gasoline on
the said rags and set fire on the said rags. The rags were
burning. However, before said fire could have burned any of
the structure of the house, A was already arrested. What
crime is committed?
A: Some legal luminaries say, the crime committed
is frustrated arson. Other legal luminaries say there
is no such crime as frustrated arson.
Pros. Garcia is on the second luminary. She
believes that there is no such crime as frustrated
arson because arson is the burning of the property
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of another by means of fire. The moment any part
of the said structure or building is burned, arson is
already consummated. If no part of the said
structure or building is burning, it is only Attempted
Arson. There cannot be a circumstance of
frustrated arson.
Because how did a crime frustrate a felony? A
frustrated felony is committed when the offender
has performed all the acts of execution that would
produce the felony but nevertheless the felony was
not produced by reason of the causes independent
of the will of the perpetrator. The offender has
performed all the acts of execution in the crime f
arson, for the offender to be said that he had
performed all the acts of execution, it is necessary
that the building or the property has already been
burned, otherwise, it cannot be said that he has
performed all the acts of execution.
So by the definition of a frustrated felony, she is
with the other legal luminaries who say that there is
no such thing as frustrated arson. Because the
moment any part of the property has been
burned, it is already considered as
consummated arson.
Art. 327 – MALICIOUS MISCHIEF
Who are liable for malicious mischief?
Any person who shall deliberately cause the
property of another any damage not falling
within the terms of the next preceding chapter
shall be guilty of malicious mischief.
Malicious Mischief – is the willful damaging of another’s
property for the sake of causing damage due to hate,
revenge or other evil motive.
If the intention of the offender is to cause damage in the
property of another, by any means outside arson, is
malicious mischief.
It is a crime which can only be committed by means of intent.
There must be deliberate intent to cause damage to the
property of another, because if there is no intent to cause
damage in the property, the liability will be damages only;
civil liability and not criminal liability.
In order for a crime to be considered as malicious mischief,
it is necessary that there must be DELIBERATE INTENT to
cause damage to the property of another. Absent that
deliberate intent to damage, to injure the property of another,
it cannot be considered as malicious mischief. The said
offender will only be liable for damages for causing damage
to the property of another; civil liability and not criminal
liability. Or, if there was negligence, imprudence on his part,
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it would be reckless imprudence or simple negligence
causing damage to property. But for malicious mischief to
arise, it is necessary that there must be deliberate intent to
damage the property of another, only for the purpose of
damaging it or for the purpose of invoking revenge.
Q: A and B were fighting, and in the course of their fight, A
fell on the floor and the floor was damaged.
A: The liability will only be a civil action for
damages.
ART. 328 – SPECIAL CASES OF MALICIOUS
MISCHIEF/QUALIFIED MALICIOUS MISCHIEF
(Penalty is qualified)
1. Causing damage to obstruct the performance of
public functions;
2. Using poisonous or corrosive substances
3. Spreading any infection or contagion among cattle
4. Causing damage to the property of the National
Library or to any archive or registry, waterworks,
road, promenade, or any other thing used in
common by public
ART. 329 – OTHER MISCHIEFS
Other damage would constitute ordinary malicious
mischief.
The mischiefs not included in the next preceding article.
ART. 330 – DAMAGE AND OBSTRUCTION TO MEANS
OF COMMUNICATION
What is punished is the damage and obstruction to
means of communication.
Who is liable?
The penalty of prision correccional in its medium
and maximum periods shall be imposed upon any
person who shall damage any railway,
telegraph or telephone lines.
If the damage shall result in any derailment of cars,
collision or other accident, the penalty is qualified
to prision mayor, without prejudice to the criminal
liability of the offender for the other consequences
of his criminal act.
For the purpose of the provisions of the article, the
electric wires, traction cables, signal system
and other things pertaining to railways, shall be
deemed to constitute an integral part of a railway
system.
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ART. 331 – DESTROYING OR DAMAGING STATUES,
PUBLIC MONUMENTS OR PAINTINGS
Who is liable?
Any person who shall destroy or damage statues or
any other useful or ornamental public monument.
(penalty of arresto mayor in its medium period to
prision correccional in its minimum period)
If what has been damaged are only private
monuments or private paintings, it is only ordinary
malicious mischief.
Any person who shall destroy or damage any
useful or ornamental painting of a public nature
shall suffer the penalty of arresto menor or a fine
not exceeding 200 pesos, or both such fine and
imprisonment, in the discretion of the court.
CHAPTER TEN – EXEMPTION FROM CRIMINAL
LIABILITY IN CRIMES AGAINST PROPERTY
Art. 332 — PERSONS EXEMPT FROM CRIMINAL
LIABILITY.
No criminal, but only civil liability, shall result from the
commission of the crime of THEFT, SWINDLING (or
estafa) or MALICIOUS MISCHIEF committed or
caused mutually by the following persons:
1. Spouses, ascendants and descendants, or
relatives by affinity in the same line.
2. The widowed spouse with respect to the property
which belonged to the deceased spouse before the
same shall have passed into the possession of
another; and
3. Brothers and sisters and brothers-in-law and
sisters-in-law, if living together.
The exemption established by this article shall not be
applicable to strangers participating in the commission
of the crime. This exempting circumstance will not apply
to strangers. If the strangers connived with any the
persons mentioned in Article 332, so in that case, the
stranger is liable, only the enumerated persons is not
criminally liable.
In this case, the son-in-law of a Japanese National
committed estafa through falsification of a
public document. Because the special power of
attorney was falsified. Since the crime committed
was estafa through falsification of a public
document, the Supreme Court said, the said son-
in-law can be held criminally liable. So this apply
only to simple cases of theft, swindling (or estafa)
and malicious mischief.
The son in law a Japanese National , by means of
deceit made his mother in law sign a SPA, said
SPA was used to sell the property of Tagaytay. The
mother died without receiving the proceeds of the
sale. The daughter of the mother wanted to file a
case against the son-in law. Note that the wife of
the Japanese national is already deceased. Does
article apply in this case where the crime committed
is estafa even if the wife of the Japanese National
is already dead?
The relationship by affinity is still existing. The
purpose is to ensure harmony within the family.
Article 332 will still apply. The son-in-law may be
prosecuted. The crime is estafa through
falsification of public document. The crime
committed is the complex crime of estafa through
falsification of public document. Article 332 will not
apply though there is a relationship because the
crime is already complexed.
Based on jurisprudence:
The word SPOUSES include paramours and
mistresses, and other wives.
The word ASCENDANTS include step father and
step mother.
The word DESCENDANTS include step children,
adopted children and natural children.
The reason is that the exempting circumstance, the
absolutory cause under Article 332 is made in order to
insure HARMONY within the family.

INTESTATE ESTATE OF MANOLITA GONZALES VDA.

DE CARUNGCONG v. PEOPLE:
The Supreme Court said, this absolutory cause or
exempting circumstance under Article 332 applies
exclusively to simple crimes of theft, swindling (or
estafa) and malicious mischief. The exemption
under Article 332 will not arise, it will not absorb
the offender if the crime committed is already a
complex crime.

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TITLE ELEVEN o So, there are cases wherein only one is

CRIMES AGAINST CHASTITY
Example:
(Articles 333 – 346)
CHAPTER ONE – ADULTERY AND CONCUBINAGE
ART. 333 – WHO ARE GUILTY OF ADULTERY
Adultery is committed by any married woman who shall
have sexual intercourse with a man not her husband and by
the man who has carnal knowledge of her knowing her to be
married, even if the marriage be subsequently declared void.
Adultery shall be punished by prision correcional in its
medium and maximum periods.
If the person guilty of adultery committed this offense while
being abandoned without justification by the offended
spouse, the penalty next lower in degree than that provided
in the next preceding paragraph shall be imposed.
The penalty shall be mitigated; therefore it is akin to
a mitigating circumstance.
Offender Legally Married Woman
Offended party Husband
To whom shall the case
Wife and Lover
be filed
convicted and the other one is acquitted.
A, the wife had sexual intercourse with B, the lover. H,
the husband can file a case for adultery against the
both of them. During trial of the merits, B was able to
prove beyond reasonable doubt that A represented
herself to be single and that B believed that she was
indeed single.
o The wife can be convicted for adultery and
the lover has his defense that he did not
know that the woman is married. It is a
matter of defense.
Both shall still be prosecuted. Otherwise, the case will
not prosper under Art. 344
If wife is abandoned by her husband without
justification, mitigated
Adultery is a crime of consequence, so there is
no attempted or frustrated stage.
o It is always in the consummated stage.
o It is an instantaneous crime –
consummated upon the carnal union of
the wife with the lover of the wife.
Adultery may be proven by circumstantial
evidence.

Only by the Offended Example:

Who shall file
Husband
The husband was working in Saudi for 10 years, and upon
ELEMENTS: reaching home, he sees his wife pregnant for 9 months,
obviously, if the wife is not a victim of rape, the wife
1. That the woman is married committed adultery.
2. She has sexual intercourse with a man who is not
her husband
3. As regards the man whom she has sexual ART. 334 – CONCUBINAGE
intercourse, he must know her to be married
Any husband who shall keep a mistress in the conjugal
dwelling, or shall have sexual intercourse, under scandalous
Adultery is a private crime. circumstances, with a woman who is not his wife, or shall
cohabit with her in any other place, shall be punished by
It can only be prosecuted by the offended prision correccional in its minimum and medium periods.
spouse.
Without the complaint filed by the offended The concubine shall suffer the penalty of destierro.
spouse, no crime. ELEMENTS:
o Therefore, the state cannot, on its own, file
1. The man must be married
a case of adultery against the wife.
2. That he committed any of the following acts:
If the lover does not know that the woman is
a. Keeping a mistress in the conjugal
married, still the husband should file the case on
dwelling;
both of them.
b. Having sexual intercourse under
o It is a matter of defense only on the lover
scandalous circumstances;
to say that “I do not know that she is
c. Cohabiting with her in any other place
married.

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3. The woman must know that the man must be
married
Offender Legally Married Husband
Offended party Wife
To whom shall the case
Husband and Concubine
be filed
Who shall file Only by the Offended Wife
Just like adultery, Concubinage is a private crime.
The wife must initiate the filing of the complaint
because it is a private crime.
Without the complaint, the state cannot, on its
own, file the case of concubinage
The wife must file the case against both the
husband and the concubine and is married.
Q: What if the concubine does not know that the husband is
married?
A: It is a matter of defense on the part of the
concubine that she was also deceived. She did not
know that the man is married. But she also must be
prosecuted.
FIRST ACT: KEEPING A MISTRESS IN THE CONJUGAL
DWELLING
The conjugal dwelling refers the house of the husband
and the wife
Husband brought her to the house
SECOND ACT: HAVING SEXUAL INTERCOURSE
UNDER SCANDALOUS CIRCUMSTANCES
The best witnesses are the neighbors of the husband.
It must be in such a manner that the neighbors are
shocked.
Q: What if a married man who had sexual intercourse with a
woman inside a motel. Is the man liable for concubinage?
A: NO, because it was done in secrecy. In order for
the husband to be liable for concubinage by having
sexual intercourse with a woman who is not his wife, it
is necessary that the sexual intercourse was
committed under scandalous circumstances. Their
sexual congress must set a bad example, misconduct
among the people in the neighborhood.
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THIRD ACT: COHABITING WITH A WOMAN IN ANY
OTHER PLACE
Cohabitation means that the husband and the
concubine were living together as if they were
husband and wife without the benefit of marriage.
CHAPTER TWO – RAPE AND ACTS OF
LASCIVIOUSNESS
Art. 335 - RAPE IS ALREADY REPEALED. Rape is no
longer a private crime. It is already a public crime and
located under title 8, crimes against persons.
TWO KINDS OF ACTS OF LASCIVIOUSNESS:
1. Acts of Lasciviousness under circumstances of rape
under Art. 336
2. Acts of Lasciviousness under circumstances of
seduction under Art. 339
When the offended party consented to the acts
of lasciviousness
ACTS OF LASCIVIOUSNESS – refers to acts which is
prompted by lust or lewd design.
ART. 336. ACTS OF LASCIVIOUSNESS
Any person who shall commit any act of lasciviousness upon
other persons of either sex, under any of the circumstances
mentioned in the preceding article, shall be punished by
prision correcional.
ELEMENTS:
1. That the offender commits any act of
lasciviousness or lewdness;
2. That the act of lasciviousness is committed against
a person of either sex;
3. That it is done under any of the following
circumstances:
a. Using force 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 demented
It is committed with unchaste design and done under
circumstances of rape.
Offender – any person
Offended party – any person
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Q: Offender is the woman while the offended party is a man.
The man was being held by 2 other men when the woman
undressed the man, touched the private parts of the man.
What crime is committed?
A: Acts of Lasciviousness under circumstances of
rape under Art. 336. Under Art. 336, the offender and
the offended party may be any person. The man was
held by other two men and the act of the woman was
prompted by lust or lewd design. Therefore it is acts of
lasciviousness under circumstances of rape.
Q: In a school, the woman after unbuttoning the pants of the
said man, the woman forcibly entered the penis of the man
inside her mouth. Is the crime committed rape by sexual
assault?
A: No, but it is acts of lasciviousness. If you look at
rape by sexual assault, it is committed by “the man
inserting his penis into another persons’ mouth or
orifice.” It is the offender who must insert his penis into
the mouth or orifice. In the problem, it is not the man
who inserted his penis. It was the woman who forcibly
inserts the penis of the man inside her mouth.
Therefore, crime committed is only acts of
lasciviousness, because in rape by sexual assault, it
is the offender who has the penis and inserted it
forcibly to another.
CHAPTER THREE – SEDUCTION, CORRUPTION OF
MINORS AND
WHITE SLAVE TRADE
TWO KINDS OF SEDUCTION:
1. Qualified Seduction
2. Simple Seduction
1. Seduction of a virgin over 12 years of age and under
18 years of age by persons who abuse their authority or
confidence reposed in them
ELEMENTS:
1. The offended party must be a virgin
2. She must be over 12 and under 18 years of age
3. The offender is a person in public authority, priest,
house servant, domestic, teacher, guardian or any
person, in any manner, shall be entrusted with the
education or custody of the woman seduced
4. The offender had sexual intercourse with of the said
offended party
5. There is abuse of authority, confidence or
relationship on the part of the offender
Offended party must be:
o Virgin
o over 12 under 18 years of age
If the victim is under 12 years of age, even if there
was consent, it is statutory rape.
Offender must be:
o Person in public authority
o priest
o house servant
o domestic
o teacher
o guardian
o any person who has custody of the seduced
woman
VIRGINITY does not refer to physical virginity.
It would suffice that the woman is not married, she is
single and living a chaste life.
The law presumes that she is a virgin.

ART. 337 – QUALIFIED SEDUCTION sexual intercourse is an element of any kind of

The seduction of a virgin over twelve years and under seduction. It is committed with the abuse of
eighteen years of age, committed by any person in public authority, confidence or relationship.
authority, priest, home-servant, domestic, guardian, teacher,
or any person who, in any capacity, shall be entrusted with 2. Seduction of a sister by her brother or descendant by
the education or custody of the woman seduced, shall be her ascendant, regardless of her age and reputation.
punished by prision correccional in its minimum and medium Offended party must be:
periods.
o Sister or Descendant
The penalty next higher in degree shall be imposed upon any
person who shall seduce his sister or descendant, whether
or not she be a virgin or over eighteen years of age. Offender must be:
Under the provisions of this Chapter, seduction is committed o Brother or Ascendant
when the offender has carnal knowledge of any of the
persons and under the circumstances described herein.
TWO KINDS OF QUALIFIED SEDUCTION:

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
The brother or ascendant had sexual intercourse with
the sister or descendant, which is committed with
abuse of relationship.
Age does not matter. Even if the sister is 18 and
above, still, seduction can still be committed.
Status in life is not an element. Even if she is a married
woman, still, there can be seduction. (Virginity does
not matter)
ART. 338 – SIMPLE SEDUCTION
The seduction of a woman who is single or a widow of good
reputation, over twelve but under eighteen years of age,
committed by means of deceit, shall be punished by arresto
mayor.
ELEMENTS:
1. Offended party is over 12 and under 18 years of
age
2. She must be of good reputation, single or widow
3. Offender has sexual intercourse with her
4. It is committed by means of deceit.
In case of simple seduction, the offended party must be a
WOMAN who is single or widow of good reputation, over 12
but must be under 18 years of age.
Offender – any person
who had sexual intercourse with her by means of
deceit.
DECEIT- the offended party gave herself to the man
because of the latter’s promise.
It may come in the form of inducement, a false
promise.
Q: In order to have sexual congress with the woman, the
man promised to marry the woman. The woman who
believed the promise gave herself to the man. What crime is
committed if any by the said man?
A: Simple seduction. In order to induce the woman
to give up her virginity was due to the deceit employed.
Q: The woman committed sexual congress with a married
man because the man promised that he will marry the
woman.
A: The SC said that there is no seduction. The fact that
the woman knows that the man is married, the man
cannot marry her. There is no deceit.
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ART. 339 – ACTS OF LASCIVIOUSNESS WITH THE
CONSENT OF THE OFFENDED PARTY
The penalty of arresto mayor shall be imposed to punish any
other acts of lasciviousness committed by the same persons
and the same circumstances as those provided in Articles
337 and 338.
This is done with the consent of the offended party
This is under circumstances of seduction.
Offender: Man
Offended Party: Woman
In seduction, the offended party is always the woman
ELEMENTS:
1. Offender commits acts of lasciviousness or
lewdness
2. Acts were committed upon a woman who is a virgin,
or single or widow of good reputation, under 18
years of age but over 12 years, or a sister or
descendant regardless of her reputation or age
3. Offender accomplishes the acts by :
a. Abuse of authority
b. Abuse of confidence
c. Abuse of relationship
d. Means of deceit
ART. 340 – CORRUPTION OF MINORS
Any person who shall promote or facilitate the prostitution or
corruption of persons underage to satisfy the lust of another,
shall be punished by prision mayor, and if the culprit is a
pubic officer or employee, including those in government-
owned or controlled corporations, he shall also suffer the
penalty of temporary absolute disqualification. (As amended
by Batas Pambansa Blg. 92).
Corruption is committed by persons who:
1. Promote or facilitate the prostitution or the
corruptions of minors in order to satisfy the lust of
another
o It is committed by pimps, or more commonly
known as “Bugaw”
Q: If the offender is a public officer or employee, including
those in the government owned-controlled corporations?
A: there is an additional temporary absolute
disqualification
ART. 341 – WHITE SLAVE TRADE
The penalty of prision mayor in its medium and maximum
period shall be imposed upon any person who, in any
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manner, or under any pretext, shall engage in the business
or shall profit by prostitution or shall enlist the services of any
other for the purpose of prostitution (As amended by Batas
Pambansa Blg. 186.)
PUNISHABLE ACTS:
I. Engaging in the Business of Prostitution
II. Shall Profit by Prostitution
III. Enlist the services of any woman for the purpose of
prostitution
Chapter Four – ABDUCTION
TWO KINDS OF ABDUCTION:
1. Forcible Abduction
2. Consented Abduction
ART. 342 – FORCIBLE ABDUCTION
The abduction of any woman against her will and with lewd
designs shall be punished by reclusion temporal.
The same penalty shall be imposed in every case, if the
female abducted be under twelve years of age.
Forcible Abduction- abduction, taking away, or carrying
away of a woman against her will and with lewd design.
Woman can be any person.
Regardless of age, virginity, civil status. They are not
material.
For as long as the taking away is done with lewd
design and against her will.
Sexual intercourse is NOT an element.
If by reason of or on the occasion of forcible abduction,
the man had sexual intercourse with the woman, it
may result in a COMPLEX CRIME OF RAPE WITH
FORCIBLE ABDUCTION.
Q: Nena was waiting near the gate of her house, while
waiting for her father. Suddenly here comes Pedro. Pedro
abducted her. Forcibly took her away from her house and
brought her inside his house. The said taking was done with
lewd design. So Pedro held Nena inside her house for 7
days. Pedro said, “Marry Me”, Nena said, “I will never marry
you”. By reason thereof, Pedro rape Nena, and during the 7
days when Nena was held in captivity inside the house of
Pedro, Pedro rape her one time a day. There were 7 acts of
rape. What crime/s is/are committed by Pedro?
A: The crimes committed by X are 7 crimes. Pedro
shall be charged by 7 information. 1 crime forcible
abduction with rape and 6 crimes of distinct and
separate charges of rape. One act of sexual
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intercourse constitute equals one charge. Here, only 1
rape can be complexed with forcible abduction. It is a
complexity of crimes under Art. 48, Book I of the
Revised Penal Code. It is not a special complex crime,
but merely a complex crime.
only 1 forcible abduction is necessary to commit the
crime of rape and only 1 rape is necessary to bring
about complex crime of forcible abduction with
rape.
Q: In the same case, the Nena was inside the house of the
Pedro. Pedro tried to rape Nena, he attempted to rape,
however, Nena was able to put up a fight and Nena kicked
Pedro, as a result, she ran outside the house. What crime/s
is/are committed by Pedro?
A: 2 crimes are committed, Forcible Abduction and
Attempted Rape. BUT one charge can be filed which
is FORCIBLE ABDUCTION. The attempt to rape
Nena is only the manifestation of the lewd design
which is an element of forcible abduction. Therefore,
he can only be charged of Forcible abduction.
o Attempted rape was absorbed in the element of
lewd design.
o No such thing as Forcible Abduction with
Attempted Rape.
ART. 343 – CONSENTED ABDUCTION
The abduction of a virgin over twelve years and under
eighteen years of age, carried out with her consent and with
lewd designs, shall be punished by the penalty of prision
correccional in its minimum and medium periods.
ELEMENTS:
1. The woman must be a virgin
2. She must be over 12 years but under 18 years of
age
3. The taking away must be with her consent, after
solicitation or cajolery from the offender
4. The taking away must be with lewd designs.
Offended party :
o She must be a virgin
o Over 12 and under 18 years of Age
Offender: Any Person
Taking away of the woman must be WITH HER CONSENT.
It was with her consent because it was made after
solicitation or cajolery from the offender
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NOTE: the age (12-18) is what makes the crime of
abduction.
Q: A and B were girlfriend and boyfriend. A was a virgin who
was 16 years old, the man is 25 years old. The parents did
not like the man. So with the inducement from the said man,
with the solicitation, A and B decided to elope. So the man
carried away the said woman with her consent and with lewd
design and put the woman inside his house. That night while
they were sleeping, the said man tried to have sexual
congress with the virgin girl. However, the girl refused.
Nevertheless, the man by use of force, was able to have
sexual congress with her. What crime/s is/are committed by
B, the boyfriend?
A: Consented Abduction, There was taking away of
the woman with lewd design and with her consent. In
the course thereof, the man raped the girl, because
force was used in the sexual intercourse, therefore
there is another crime of rape. You have a COMPLEX
CRIME OF CONSENTED ABDUCTION WITH RAPE.
Abduction was a necessary means in order to commit
rape.
Q: The girl was 15 and the boyfriend was 25. The said
boyfriend was able to take away the girl with her consent.
The parents of the girl filed a case. Per Ma’am, she was able
to handle a similar case where the girl was 16 and the man
was above 18. The parents of the girl do not like the man so
the lovers eloped and lived in the house of the man. The
mother filed a case of consented abduction. During the P.I.,
the said girl loved the man and even if the mother will take
her away from the man, she will always return to the man.
Also, the woman has keys of the house of the man. Per
ma’am the man was not at fault because it was always the
woman who would go to the man’s house. So she dismissed
the case.
In qualified seduction and consented abduction, acts of
lasciviousness in circumstances of seduction: INSTANCES
WHERE VIRGINITY IS AN ELEMENT
Note: In consented abduction, sexual intercourse is not an
element, so if after the woman ran away with the man, yet
she does not want to have sexual intercourse but the man
forced her and was able to succeed in having sexual
intercourse, the crime committed is consented abduction
with rape.
CHAPTER FIVE - PROVISIONS RELATIVE TO THE
PRECEDING
CHAPTERS OF TITLE ELEVEN
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ART. 344 – PROSECUTION OF THE CRIMES OF
ADULTERY, CONCUBINAGE, SEDUCTION,
ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS
The crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended
spouse.
The offended party cannot institute criminal prosecution
without including both the guilty parties, if they are both alive,
nor, in any case, if he shall have consented or pardoned the
offenders.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a
complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
has been expressly pardoned by the above named persons,
as the case may be.
In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party
shall extinguish the criminal action or remit the penalty
already imposed upon him. The provisions of this paragraph
shall also be applicable to the co-principals, accomplices
and accessories after the fact of the above-mentioned
crimes.
WHO MAY
CRIME FILED AGAINST
FILE
Adultery Husband Wife and the Lover
Husband and the
Concubinage Wife
Concubine
These are private crimes which can be prosecuted
upon the complaint filed by the private proper party.
Seduction, Abduction, Acts of Lasciviousness
These are private crimes which can be prosecuted
upon the complaint by:
a. Offended party
b. Parents
c. Grandparents
d. Guardians in the order named above
In Seduction, Abduction and even public crime of
Rape, the subsequent marriage of the offended party
and the offender shall extinguish the liability and shall
remove the penalty already imposed by the court
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ART. 345 – CIVIL LIABILITY OF PERSONS GUILTY OF
CRIMES AGAINST CHASTITY Person guilty of rape,
seduction or abduction, shall also be sentenced:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law should
prevent him from so doing.
3. In every case to support the offspring.
The adulterer and the concubine in the case provided
for in Articles 333 and 334 may also be sentenced, in
the same proceeding or in a separate civil proceeding,
to indemnify for damages caused to the offended
spouse.
Civil Liability of Persons guilty of Rape, Seduction, or
Abduction:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law should
prevent him from so doing.
3. In every case to support the offspring.
Q: What if it is a gang rape, so let us say that 5 men raped
the said woman, how can there be acknowledgement
because the woman suddenly became pregnant and all of
them are convicted. All of them shall indemnify the offended
party. How about the acknowledgement?
A: It can be easily determined from the DNA
testing.
ART. 346 – LIABILITY OF ASCENDANTS, GUARDIANS,
TEACHERS, OR OTHER PERSONS ENTRUSTED WITH
THE CUSTODY OF THE OFFENDED PARTY
The ascendants, guardians, curators, teachers and any
person who, by abuse of authority or confidential
relationships, shall cooperate as accomplices in the
perpetration of the crimes embraced in chapters, second,
third and fourth, of this title, shall be punished as principals.
Teachers or other persons in any other capacity entrusted
with the education and guidance of youth, shall also suffer
the penalty of temporary special disqualification in its
maximum period to perpetual special disqualification.
Any person falling within the terms of this article, and any
other person guilty of corruption of minors for the benefit of
another, shall be punished by special disqualification from
filling the office of guardian.
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ANTI-SEXUAL HARRASMENT ACT OF 1995 (R.A. 7877)
Sexual Harassment is about power. It is the use of sex as
an instrument or means of domination or supremacy.
Sexual Harassment in work, education and training-related
environment is committed by:
1. employer
2. employee
3. manager
4. supervisor
5. agent of employer
6. teacher
7. instructor
8. professor
9. coach
10. trainor
11. any person who having authority, influence or
moral ascendancy over another person
- shall demand, request or otherwise requires sexual
favor from the other, regardless if whether the sexual
favor is accepted by the offended party.
IN WORK RELATED OR EMPLOYMENT ENVIRONMENT,
SEXUAL HARASSMENT IS COMMITTED WHEN:
1. Sexual favor is made as a condition in the hiring,
or in the employment of said individual, or in
granting said individual favorable compensation,
terms, conditions, promotions, or privileges; or the
refusal to grant the sexual favor results in limiting,
segregating, or classifying the employee which in
any way would discriminate, deprive or diminish
employment opportunities or otherwise adversely
affect said employee;
2. The above acts would impair the employer’s
rights or privileges under existing labor laws; or
3. The above acts would result in an intimidating,
hostile or offensive environment for the employee.
IN AN EDUCATION OR TRAINING ENVIRONMENT,
SEXUAL HARASSMENT IS COMMITTED:
1. Against one who is under the care, custody or
supervision of the offender
2. Against one whose education, training,
apprenticeship or tutorship is entrusted with the
offender
3. When the sexual favor is made a condition to the
giving of a passing grade, or the granting of
honors and scholarships, or the payment of a
stipend, allowance or other benefits, privilege or
consideration or;
4. When the sexual advances result in the
intimidating, hostile, or offensive environment for
the student trainee or practice.
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Q: A is the victim of sexual harassment. What are the
remedies on the part of A? What is/are cases may A file
against the offender B?
A: A has 3 Remedies under the Law.
1. She can file a case for violation of R.A. 7877
and the penalty is imprisonment of 1 month
to 6 months or a fine of P10,000 to P20,000
or both fine and imprisonment at the
discretion of the court
2. She can file a civil action for damages or
any other affirmative defense
3. She can also file an administrative case
against the said offender. If he is a doctor,
she can file a case at the head of the
hospital; if he professor, she can file a case
at the head of the school.
These remedies are CUMULATIVE. They are not
exclusive of each other
o The offended party may, therefore, file all 3
cases at the same time.
o A criminal case, civil case, and administrative
case for the expulsion or suspension of the said
offender.
PEOPLE v. JACUTIN
There was this nursing graduate who wanted to
apply for work and so she applied for work at the City Health
Office. She was interviewed, but before the interview end,
the City Health Officer told her to meet him in a certain place.
And so, the City Health Officer went to the said place and
picked up the girl and inside the car he asked the girl to lower
down her pants to see if there are varicose veins. He said it
was part of the Physical Examination to lower her pants.
However, the moment that the City Health Officer inserted
his hands inside the genitalia of the girl, the said woman
immediately pull up her pants. Then, the said City Health
Officer to put up her shirt. The moment the girl put up her
shirt, she thought it was still part of the physical examination.
The City Health Officer fondled with her breast, and that was
the moment that the girl took her bag and left out of the said
car. And so, the girl wanted to file a case of violation of R.A
7877 against the City Health Officer. It was a hard struggle
for the girl, the police came to the girl giving her money for
the girl not to pursue the case. All the relatives of the girl
convinced her not to file a case against the City Health
Officer. So this is the fight of the girl alone. She won
The SandiganBayan convicted the Officer. After, an
appeal to the Supreme Court, the Supreme Court convicted
the said Officer and impose upon him the maximum penalty
of 6 months imprisonment and a fine of P20,000 plus moral
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damages in the amount of P30,000 and exemplary damages
in the amount of P20,000.
The Penalty for sexual harassment is so low
o Imagine only 1 to 6 months and a fine of
P10,000 to P20,ooo
o So if you become congressmen and senators,
you can amend the law, increase the penalty
ANTI PHOTO and VIDEO VOYEURISM ACT OF 2009
(R.A 9995)
ACTS PROHIBITED:
I. Taking photo or video coverage of a person or a group
of persons performing sexual act or any similar activity
or to capture an image of a private area of a person such
as the naked or undergarment clad genitals, public
area, buttocks, or female breasts without the consent of
the persons involved and under circumstances in which
the person/s has/have a reasonable expectation of
privacy
o It is necessary for the crime to arise, there must be NO
consent on the part of the said offended party. And, it
must be in place where he or she has a reasonable
expectancy of privacy.
II. To copy or reproduce, or to cause to be copied or
reproduced such photo or video or recording of sexual
act or any similar activity with or without consideration
III. To sell or distribute or to cause to be sold or distributed
, such photo or video or recording of sexual act, whether
the original copy or reproduction thereof;
IV. To publish or broadcast, or to cause to be published or
broadcast whether in print or broadcast media, or show
or exhibit the photo or video coverage or recordings of
such sexual act or any similar activity through
VCD/DVDV, internet, cellular phones and other similar
means or device.
Q: What if A and B are lovers, as lovers they often had
sexual congress. So A the man, told the girl can I videotape
our sexual congress, the girl said yes. So the girl consented.
So, while they engage in sexual congress, it was being
videotaped by the man. Is the man liable under R.A. 9995?
A: No, he is not liable, because there was a
consent given by the said girl.
Q: What if the man reproduced and distributed the said tape.
Is the said man liable?
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A: Yes, he is liable.

PENALTY: imprisonment of not less than 3 years but

not more than 7 years AND fine of not less than 100k
but not more than 500k, or both the fine and
imprisonment at the discretion of the court.

Q: What if the woman went to the mall, there was a need to

answer the call of nature, she went to the rest room. In the
rest room, she saw a camera inserted near and in between
the wall of the said cubicle. The janitor placed it there. Is the
Janitor liable under R.A 9995?
A: Yes, he is liable for R.A. 9995.

Case of Hayden Kho and Katrina Halili

If their case took place after the effectivity of this
act, Hayden Kho should not be off the hook. It just so happen
that this act was not yet enforced at that time. So the case
filed against him is violation of R.A. 9262 – Violence against
woman and their children. Because the reason why the RTC
dismissed the case was that, according to the said court,
there was consent given by Katrina Halili and so, according
to the court, there was no violence against women and their
children. But had R.A 9995 in effect at that time, even if
consent was allegedly, although not proven, given by Katrina
Halili, Hayden Kho can be held liable under the 2nd and the
3rd Act. He was so lucky that this law was not yet in effect at
that time.

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TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS OF PERSONS
(Articles 347 – 352)
CHAPTER ONE – SIMULATION OF BIRTHS AND
USURPATION OF CIVIL STATUS
ART. 347 – SIMULATION OF BIRTHS, SUBSTITUTION
OF ONE CHILD FOR ANOTHER AND CONCEALMENT
OR ABANDONMENT OF A LEGITIMATE CHILD
THREE ACTS PUNISHED UNDER ART. 347:
1. Simulation of birth
Simulation of birth- takes place when the woman
pretends to be pregnant when in fact she is not and on
the day of the delivery, takes the child of another as her
own.
If the simulation is done in the birth certificate, the
crime committed is simulation of birth
If the simulation is done in any other document
aside from birth certificate, the crime committed
is falsification of a public or private document as
the case may be.
Q: A was a pregnant. She told the midwife that she does not
want the baby. The midwife said that she knew a couple who
wanted a child. The couple arrived and the mother gave the
child to the couple. This couple took the baby and registered
the child as their own. What are the crimes committed and
who are criminally liable?
A: All of them are all liable for simulation of
birth. The mother, the midwife and the couple. The
said couple pretended that the child is their own
child. In that case, said child lost its original status.
2. Substitution of a child with another
In substitution of a child with another, the classic
example is MARA and CLARA.
Mara was substituted as Clara and Clara was
substituted as Mara. As a result, Mara loses
her real civil status of being a daughter of a rich
family and assumes a new civil status of being
a daughter of a poor family. The same
happened to Clara, Clara assumes a civil
status of being a daughter of a rich family and
loses her real civil status of being a daughter
of a poor family. Crime committed is
Substitution of a child with another child which
tend the child to lose his or her real civil status
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3. Concealing or abandoning any legitimate child with
intent to cause such child to lose its civil status
The offender conceals or abandons the legitimate child
and the intention of the offender is to lose the child’s civil
status.
It is necessary that the child is legitimate, not illegitimate.
Q: A and B husband and wife had a child. the child was born
without legs. So A and B could not accept the fact that their
child has no legs. They brought the child in the forest for the
child to die, to a forest with no people. Thereafter, left the
child. What crime is committed by A and B?
A: If the child died, and the child was less than 3 days
old, the crime committed is infanticide. If not, the
crime committed is attempted infanticide if the child
was later on discovered and rescued.
If the child is above 3 days old, the crime committed
would be parricide, in case the child died when left in
the forest. Or, it not, attempted parricide.
Q: What if A and B, instead of going to the forest, went to the
mall. The mother went inside the restroom and placed the
said child in one of the cubicles in one of the restrooms of
the mall. What crime is committed by the mother and the
husband?
A: Abandoning the Minor under Art. 276. The
parents left her deliberately, consciously, and
permanently, without intent to kill. There was no intent
to kill because they could not kill the child. They left it
inside the restroom therefore obviously there was no
intent to kill.
Q: What if this husband and wife and the child that they have
happens to be their 13th child. They already had 12 children
and these children are not going to school. So their 13th child
was born and they wrapped the child in a nice towel, placed
it inside a basket and then placed it at the gate of the house
of a rich family. Then they rang the bell. What crime is
committed by the husband and the wife?
A: Violation of Art. 347 – Abandoning a legitimate
child with intent to lose its real civil status.
Obviously, the intent of the parents is for the child, their
13th child to lose its real civil status of being that of a
poor family and assume a new civil status of coming
from a rich family because the child was left at the gate
and the parents rang the bell.
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NOTE: It depends on the intent of the offender. It could be
any other crime, depending on the intent of the offender.
ART. 348 – USURPATION OF CIVIL STATUS
The penalty of prision mayor shall be imposed upon any
person who shall usurp the civil status of another, should he
do so for the purpose of defrauding the offended part or his
heirs; otherwise, the penalty of prision correccional in its
medium and maximum periods shall be imposed.
It shall be committed by any person who shall usurp
the civil status of another, who shall assumes the
filiation, or the paternal, or the marital rights of another
Intention of the offender is to enjoy the civil rights
arising from the civil status of the person whom he
impersonates.
If the intention of the offender is to defraud the
offended party, or his heirs, the penalty is QUALIFIED.
CHAPTER TWO – ILLEGAL MARRIAGES
ART. 349 – BIGAMY
The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage
before the former marriage has been legally dissolved, or
before the absent spouse has been declared presumptively
dead by means of a judgment rendered in the proper
proceedings.
ELEMENTS:
1. That the offender has been legally married
2. That the marriage has not been legally dissolved,
in case his or her spouse is absent, the absent
spouse could not yet be presumed dead
according to the Civil Code
3. That he contracts a second or subsequent
marriage
4. That the second or subsequent marriage has all
the essential requisites for validity.
Bigamy shall be committed by any person who shall
contracts a second or subsequent marriage before the
former marriage has been legally dissolved, or who
shall contract a subsequent or second marriage before
the absent spouse has been declared presumptively
dead, meaning in a decision made in an appropriate
proceedings.
The offender is a married person, but he contracted a
second or subsequent marriage, his previous
marriage has not yet been declared null and void by
the court, or her spouse is absent and he or she
contracts a second or subsequent marriage before the
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court has declared that the said spouse is
presumptively dead
Old case in the Book:
The wife contracted a second marriage because she
inquired from the relatives of the husband and the relatives
of the husband said, “He is already dead” and because of
that, the wife contracted a second or subsequent marriage.
The first husband appeared, and filed a case of bigamy
against the said wife. Is the wife liable for bigamy?
The court said that the woman is liable for
bigamy through reckless imprudence, because
according to the court, there was imprudence
because just by mere reliance on the statement
made by the parents of the husband, she
already contracted a second marriage
Is there such a crime of bigamy through reckless
imprudence?
I do not believe in that decision. It is impossible
for this crime to have happened. because the
law says, without the first marriage being legally
dissolved, it means there must be a court
declaration of nullity of marriage, without that the
absent spouse being declared presumptively
dead in a decision made in an appropriate
proceeding, there must be a court decision.
Since there is a need of a court decision before
one could contract a second or subsequent
marriage, there cannot be an instance of bigamy
through reckless imprudence. The moment the
said married person contracted a second or
subsequent marriage, without any court
decision, the crime committed is evidently
BIGAMY. It cannot be done through reckless
imprudence or simple negligence.
Sample problem:
A and B are married. B, the husband fell in love with another
woman, and married the woman thereafter. It is now a
bigamous married. A bigamous marriage is an otherwise
valid marriage, except for the fact that there is a subsisting
marriage.
ART. 350 – MARRIAGE CONTRACTED AGAINST
PROVISIONS OF LAWS
The penalty of prision correccional in its medium and
maximum periods shall be imposed upon any person who,
without being included in the provisions of the next
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proceeding article, shall have not been complied with or that
the marriage is in disregard of a legal impediment.
If either of the contracting parties shall obtain the consent of
the other by means of violence, intimidation or fraud, he shall
be punished by the maximum period of the penalty provided
in the next preceding paragraph.
The period of 301 days is only important if the woman
is not pregnant
If the woman is pregnant at the time of the death or at
the time of the declaration of the nullity of marriage, it
is only at the time of the delivery of the baby. After the
baby is delivered, she can already marry because
there is no doubt as to the paternity of the child.
Nowadays, you can easily determine the paternity of
the child through DNA testing.

Illegal marriage- marriage contracted without the requisites ART. 352 – PERFORMANCE OF ILLEGAL MARRIAGE
of the law. CEREMONY

Committed by any person who shall contract a Priests or ministers of any religious denomination or sect, or
marriage knowing that he was not able to comply with civil authorities who shall perform or authorize any illegal
the requisites of law or if there is a legal impediment of marriage ceremony shall be punished in accordance with the
the said marriage. provisions of the Marriage Law.
In the Family Code, before one can contract a
marriage, there is the so called essential and formal
requisites. All of these must be complied with. The
absence of any of these, the contracting parties knows
its absence, yet contracted the marriage, the liability
falls under Art. 350 f0r illegal marriage.

Q: What if the priest, or the minister who contracted or

solemnized the marriage, knows that there is a legal
impediment or knows that the parties failed to comply with
the requisites, What is the liability?
A: Liability is under Art. 352. Under Art. 352, there is a
liability of any priest, or minister of any denomination
or religious sect, or also civil authorities who shall
contract or solemnize any marriage which is not in
accordance with any requisites of the law.
ART. 351 – PREMATURE MARRIAGES
Person Liable:
1. A woman who married within 301 days from the
death of her husband, or before delivery of her baby
if she is pregnant at the time of his death
2. A woman whose marriage having been annulled or
dissolved, married before delivery or before
expiration of the period of 301 days after the date
of legal separation.

Q: Why is a woman prohibited from marrying for a period of

301 days?
A: This is to en sure that there is no doubt as to the
paternity of the child to be delivered, in order for the
child to know who is his father. Otherwise, if he is not
the one who died, he is the new husband of the wife.

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

TITLE THIRTEEN Q: What if A, in the same incident, using a microphone, using

an amplifier sound system, called B “isa kang estafadora”. Is
CRIMES AGAINST HONOR
the crime committed libel or is it oral defamation?
(Articles 353 – 364)
A: The crime committed is Oral Defamation or
Slander. The use of the microphone or the amplifier is
CHAPTER ONE – LIBEL not within the means provided for Art. 355.

Section One: Definitions, forms, and punishment of

this crime. THIRD ELEMENT:
DEFAMATION – Kinds of Defamation: Identity of the person- must be identified, not
1. Written defamation or Libel necessary that the person must be named or
2. Oral defamation or Slander described.
3. Slander by deed It suffices that any reader or a person who heard would
know that he is the person being referred to.
The moment a 3rd party has recognized or has known
ART. 353 – DEFINITION OF LIBEL that he is the one being referred to in the defamatory
statement, the identity of the offended party is already
LIBEL – is public and malicious imputation of a crime, or of
present.
a vice or defect, whether real or imaginary, or any act,
omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or FOURTH ELEMENT in relation to Art. 354 – Requirement
juridical person, or to blacken the memory of one who is for Publicity:
dead. As a rule, every defamatory statement is presumed to
ELEMENTS: be MALICIOUS, even if it is true.
In defamatory statements, if the offender cannot state
1. There must be an imputation or allegation of a
any good intention or justifiable motive for stating
crime, or a vice of defect, whether real or imaginary,
defamatory statements, the law presumes malice.
or any act or omission, condition, status or
MALICE IN LAW – Prosecution need not prove
circumstance which tend to dishonor or discredit a
malice. It is the defense who must prove that in stating
natural or juridical person.
the defamatory statements, there was no malice on
2. That there must be a publication of the said
the part of the offender because the law presumes
defamatory statement or article
malice in law.
3. The identity of the person defamed must be
established or identified
There are certain statements wherein the law does not
4. The existence of malice
presumes malice. In this kind of malice, it must be
proven by the prosecution. This is MALICE IN FACT.
SECOND ELEMENT: It is available in privilege communication.
o It is the burden of the prosecution to prove the
Publication- satisfied the moment that a 3rd person existence of malice on the part of the offender
has heard or read the libelous statement, even if the when he said the defamatory mark or statement.
person pertained has not heard or read it. Otherwise, if not proven. There will be an
o So the basis is that a 3rd person has heard or acquittal.
read the libelous statement.

ART. 354 – REQUIREMENT FOR PUBLICITY

Q: What if A, in national television said, “ikaw B, isa kang
Kinds of Privilege Communications (Exceptions)
estafadora”. A accused B of the crime of estafa. Is the crime
committed libel or oral defamation (slander)?
A: The crime committed is LIBEL. According to the
Supreme Court, Television is within the phrase any
similar means.
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,

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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia
report or speech delivered in said proceedings, or
of any other act performed by public officers in the
exercise of their functions.
These are considered as privilege communications.
The said prosecution, the complainant must prove
malice, otherwise, there will be an acquittal of the said
offender or accused.
ART. 355 – LIBEL MEANS BY WRITINGS OR SIMILAR
MEANS
A libel committed by means of writing, printing, lithography,
engraving, radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both,
in addition to the civil action which may be brought by the
offended party.
If the defamatory statement or article is published
through any of these means, then, the crime
committed is LIBEL.
ART. 356 – THREATENING TO PUBLISH AND OFFER TO
PRESENT SUCH PUBLICATION FOR A Rules of Court is only a procedural law. Therefore the
COMPENSATION
The penalty of arresto mayor or a fine from 200 to 2,000
pesos, or both, shall be imposed upon any person who
threatens another to publish a libel concerning him or the
parents, spouse, child, or other members of the family of the
latter or upon anyone who shall offer to prevent the
publication of such libel for a compensation or money
consideration.
Art. 355 enumerates how libel can be committed:
1. Writing
2. Printing
3. Lithography
4. Engraving
5. Radio
6. Phonograph
7. Painting
8. Theatrical Exhibition
9. Cinematographic Exhibition
10. Any similar means
Q: What if A told B, if you will not give me P100,000, I will
inform your husband that you are having an affair with
another man. What crime is committed by A?
A: Crime committed is Light Threats. It is a form
of Blackmailing which constitutes light threats.
Q: If you will not give me P100,000, I will publish on the
magazine, on the newspaper, your love letters to the said
man who is not your husband. What crime is committed?
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A: Crime committed is Threatening to Publish a
Libel, also a form of Blackmailing.
BLACKMAILING – is an unlawful extortion of money
appearing [on the fears] of the offended party, can either be
light threats or threatening to publish libel
It is light threats if the offender asks the money or any
other consideration in exchange for a doing of a wrong
which does not constitute a crime.
Otherwise, if the thing to be published would involve
the morality of the person, then you are threatening to
publish a libel.
Where do you file a case of Libel?
You file a case of Libel before the Regional Trial
Court (RTC). Although the penalty for libel is prision
correcional in its minimum and medium period, it
should be filed before the MTC under the Rules of
Court, yet Revised Penal Code (RPC) itself, a
substantive law, states that all libel cases must be filed
before the RTC.
substantive law, the Revised Penal Code, should be
followed.
Where shall be these cases of libel be filed?
It depends. Generally, it should be filed before the
RTC where the article was printed or first published
or the RTC where the offended party is residing at the
time of the commission of the crime.
If the offended party is a public officer and is working
in City of Manila, it must be filed before RTC of Manila
or the RTC where the article was printed and first
published.
If the public officer is not working in Manila, it shall be
filed in the RTC of the province or city where he is
working at the time of the commission of the offense
or where the libelous article was printed or was first
published.
If libelous article refers to a private individual who is
the offended party, it can be filed before the RTC of
the place where the private individual resides at the
time of the actual commission of the offense or where
the libelous material was printed or first published.
ART. 357 – PROHIBITED PUBLICATION OF ACTS
REFERRED TO IN THE COURSE OF OFFICIAL
PROCEEDINGS
The penalty of arresto mayor or a fine of from 20 to 2,000
pesos, or both, shall be imposed upon any reporter, editor or
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manager or a newspaper, daily or magazine, who shall
publish facts connected with the private life of another and
offensive to the honor, virtue and reputation of said person,
even though said publication be made in connection with or
under the pretext that it is necessary in the narration of any
judicial or administrative proceedings wherein such facts
have been mentioned.
ART. 358 – SLANDER
Oral defamation shall be punished by arresto mayor in its
maximum period to prision correccional in its minimum
period if it is of a serious and insulting nature; otherwise the
penalty shall be arresto menor or a fine not exceeding 200
pesos.
ORAL DEFAMATION/SLANDER
1. Grave Slander- when serious and insulting in
nature.
2. Simple Slander
Factors to consider whether serious or insulting in
nature:
- there are no concrete parameters in order to determine
whether the said defamatory statement is serious or
insulting in nature. You have to take into consideration
not only the grammar and meaning sense of the
statement, but also the:
a. Personal relations of the accused and the
offended party
b. Facts and Circumstances surrounding the
case
c. Social standing and position of the
offended party.
All of which must be considered in order to determine
whether it would constitute Grave Slander or Simple
Slander
Q: Calling a public officer a magnanakaw without any
evidence.
A: It would constitute criminal case of Slander
Q: What about the phrase of Putang ina mo? Is it considered
as a slanderous remark?
A: In the case of Pader vs. People, PUTANG INA MO
is not a slanderous remark. It is merely an expression
of the Filipino People. When a Filipino is sad, happy,
angry or surprised, he says this word.
PADER v. PEOPLE
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There was a drunk man who passed by the house
of a political candidate. Their families are enemies. A told to
the family of B, “putang ina mo B, magnanakaw ka sa
bayan”. So because of this, B filed a case of oral defamation
or slander.
The Supreme Court said that phrase is not
considered as a defamatory statement. It is a mere
expression on the part of the Filipino People. The crime
committed by the offender is only SIMPLE ORAL
DEFAMATION or SIMPLE SLANDER, not grave. Although
the offended party is running for a political position. The
Court has taken into consideration the antecedent facts of
the case, their families are enemies of each other.
ART. 359 – SLANDER BY DEED
The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period or a fine ranging
from 200 to 1,000 pesos shall be imposed upon any person
who shall perform any act not included and punished in this
title, which shall cast dishonor, discredit or contempt upon
another person. If said act is not of a serious nature, the
penalty shall be arresto menor or a fine not exceeding 200
pesos.
SLANDER BY DEED refers to the commission of acts, it
does not refer to the use of words, with the intent to blemish
the credit and reputation of another person.
It can also be
a. serious, grave slander by deed – serious and
insulting
b. simple slander by deed.
The Supreme Court said that there are no concrete
parameters when you should consider it grave slander
by deed or simple slander by deed. It depends on the
sound discretion of the court.
Q: What if A, intending to defame or slander a priest, slapped
the priest in front of his ___
A: Crime committed is SERIOUS SLANDER BY
DEED because of the reputation, the status in life of
the said person.
BUATIS v. PEOPLE
An open letter was addressed to the Atty. Pieraz which
contained Libelous statements such as Satan, senile, stupid
and according to the offender, the offended party uses
carabao English and ended the letter in Satan’s name. This
letter was read by the wife of the offended party. It came to
the knowledge of not only the wife but also the children.
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Issue: would you consider the wife as a 3rd person, a public,
in so far as libel is concerned?
SC: The wife is still considered as a third person.
For an imputation to be libelous, the following requisites
must concur:
1. It must be defamatory
2. it must be malicious
3. It must be given publicly
4. The victim must be identifiable
DEFAMATORY – The latter contained libelous remarks
such us satan, senile, stupid, and English carabao
MALICIOUS – every defamatory imputation is presumed to
be malicious, even if it be true, if NO GOOD INTENTIOON
or JUSTIFIABLE MOTIVE for making it is shown
PUBLICLY – publication means the making the defamatory
matter, after it is written, known to someone other than the
person against whom it has been written. It is enough that
the author of the libel has communicated it to a third person.
- In addition, the open letter was found in a mailbox, open
to the public.
IDENTIFIABLE – The libelous letter was addressed to the
respondent himself.
Section two: General Provisions
[not discussed]
ART. 360 – PERSONS RESPONSIBLE.
Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations
contained therein to the same extent as if he were the author
thereof.
The criminal and civil action for damages in cases of written
defamations as provided for in this chapter, shall be filed
simultaneously or separately with the court of first instance
of the province or city where the libelous article is printed and
first published or where any of the offended parties actually
resides at the time of the commission of the offense:
Provided, however, That where one of the offended parties
is a public officer whose office is in the City of Manila at the
time of the commission of the offense, the action shall be
filed in the Court of First Instance of the City of Manila, or of
the city or province where the libelous article is printed and
first published, and in case such public officer does not hold
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office in the City of Manila, the action shall be filed in the
Court of First Instance of the province or city where he held
office at the time of the commission of the offense or where
the libelous article is printed and first published and in case
one of the offended parties is a private individual, the action
shall be filed in the Court of First Instance of the province or
city where he actually resides at the time of the commission
of the offense or where the libelous matter is printed and first
published:
Provided, further, That the civil action shall be filed in the
same court where the criminal action is filed and vice versa:
Provided, furthermore, That the court where the criminal
action or civil action for damages is first filed, shall acquire
jurisdiction to the exclusion of other courts: And, provided,
finally, That this amendment shall not apply to cases of
written defamations, the civil and/or criminal actions which
have been filed in court at the time of the effectivity of this
law.
Preliminary investigation of criminal action for written
defamations as provided for in the chapter shall be
conducted by the provincial or city fiscal of the province or
city, or by the municipal court of the city or capital of the
province where such action may be instituted in accordance
with the provisions of this article.
No criminal action for defamation which consists in the
imputation of a crime which cannot be prosecuted de oficio
shall be brought except at the instance of and upon
complaint expressly filed by the offended party. (As
amended by R.A. 1289, approved June 15, 1955, R.A. 4363,
approved June 19, 1965).
ART. 361 – PROOF OF THE TRUTH
In every criminal prosecution for libel, the truth may be given
in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the
defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the
imputation shall have been made against Government
employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
ART. 362 – LIBELOUS REMARKS.
Libelous remarks or comments connected with the matter
privileged under the provisions of Article 354, if made with
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malice, shall not exempt the author thereof nor the editor or
managing editor of a newspaper from criminal liability.
CHAPTER TWO – INCRIMINATORY MACHINATIONS
ART. 363 – INCRIMINATING INNOCENT PERSON
Any person who, by any act not constituting perjury, shall
directly incriminate or impute to an innocent person the
commission of a crime, shall be punished by arresto menor.
Act commited by any person, directly incriminating or
imputes to an innocent person the commission of the
crime outside perjury
It is necessary that it must not be made on an affidavit,
because if it is through an affidavit, it will be perjury.
EXCEPTIONS:
o perjury (sworn affidavit), or
o sec 29 of RA 9165 (Planting of evidence)
Q: A in his counter-affidavit, in his sworn statement, imputed
upon A the commission of the crime of theft, what crime is
committed?
A: PERJURY. It is a sworn statement under oath
before a public officer.
Q: What if a Magic ballpen was lost in a party. A took the
magic ballpen of B, and then surreptitiously entered it inside
the bag of C. And so when everybody was looking for it, it
was found in the bag of C. However, someone saw A did the
act. What crime if any is committed by A?
A: A IS LIABLE FOR INCRIMINATING INNOCENT
PERSONS. Incriminating innocent persons is about
PLANTING OF EVIDENCE in order to impute,
incriminate another person the commission of the
crime.
Q: A and B are neighbors, A is mad at B, and deliberately
bumped B and in course thereof, he inserted a plastic sachet
of shabu in the pocket of B and then he told the police that
B has a shabu inside his pocket. What crime if any is
committed by A?
A: Crime committed is Sec. 29 of R.A. 9165,
planting of evidence. If what has been planted is any
dangerous drugs, the crime committed is particular,
Sec. 29 of R.A. 9165, because the special penal law
specifically punishes the planting of dangerous drugs.
If it is any other thing, a necklace was lost and A
planted it inside the bag of B, the crime committed is
incriminating innocent persons.
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Q: What if a police officer was mad at X, and so what he did
was, while X was sitting, he deliberately planted an
unlicensed firearm inside the bag of X and thereafter
arrested X, what crime is committed by the said police
officer?
A: He committed unlawful arrest. He arrested X
without any justifiable reason thereof. He
incriminates upon the innocent person the
commission of the crime which is illegal possession
of unlicensed firearm. So here, unlawful arrest was
committed by incriminating innocent persons.
UNLAWFUL ARREST THROUGH
INCRIMINATING INNOCENT PERSONS. It is a
complex crime under Art. 48 of Book I because the
incriminating of innocent persons is a necessary
means to commit unlawful arrest.
ART. 364. INTRIGUING AGAINST HONOR
The penalty of arresto menor or fine not exceeding 200
pesos shall be imposed for any intrigue which has for its
principal purpose to blemish the honor or reputation of a
person.
This refers to any intrigue which has for its purpose
to cause blemish or dishonor on the reputation of any
person
It refers to any scheme or plot which is designed to
blemish or dishonor the reputation of any person
Common Example:
“Isang chismis na hindi alam kung saan
nagsimula”
o It is an intrigue which spread a negative
rumor, you don’t even know where it
started. It is a plot, a scheme in order to
detain or blemish the reputation of
another person
Crime committed is INTRIGUING AGAINST HONOR.
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TITLE FOURTEEN
QUASI-OFFENSES
Sole Chapter – CRIMINAL NEGLIGENCE
Art. 365 – IMPRUDENCE AND NEGLIGENCE
Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a
grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period;
if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall
be imposed; if it would have constituted a light felony, the
penalty of arresto menor in its maximum period shall be
imposed.
Any person who, by simple imprudence or negligence,
shall commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its medium
and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum
period shall be imposed.
When the execution of the act covered by this article shall
have only resulted in damage to the property of another, the
offender shall be punished by a fine ranging from an amount
equal to the value of said damages to three times such
value, but which shall in no case be less than twenty-five
pesos.
A fine not exceeding two hundred pesos and censure shall
be imposed upon any person who, by simple imprudence or
negligence, shall cause some wrong which, if done
maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise
their sound discretion, without regard to the rules prescribed
in Article sixty-four.
The provisions contained in this article shall not be
applicable:
1. When the penalty provided for the offense is equal
to or lower than those provided in the first two
paragraphs of this article, in which case the court
shall impose the penalty next lower in degree than
that which should be imposed in the period which
they may deem proper to apply.
2. When, by imprudence or negligence and with
violation of the Automobile Law, to death of a person
shall be caused, in which case the defendant shall
be punished by prision correccional in its medium
and maximum periods.
Reckless imprudence consists in voluntary, but without
malice, doing or falling to do an act from which material
damage results by reason of inexcusable lack of precaution
on the part of the person performing of failing to perform
such act, taking into consideration his employment or
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occupation, degree of intelligence, physical condition and
other circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly manifest.
The penalty next higher in degree to those provided for in
this article shall be imposed upon the offender who fails to
lend on the spot to the injured parties such help as may be
in this hand to give. (As amended by R.A. 1790, approved
June 21, 1957).
IVLER v. HON MODESTO
There was this vehicular accident and the husband, Ponce,
died. The wife suffered only slight physical injuries. Two
charges were filed in the court: Reckless Imprudence
Resulting to Slight Physical Injuries and Reckless
Imprudence Resulting to Homicide and Damage to Property.
In the case of Reckless Imprudence Resulting to Slight
Physical, Jason Ivler immediately pleaded guilty to the crime
charged. The judgment became final and executory. During
the arraignment of Reckless Imprudence Resulting to
Homicide and Damage to Property, the council of Jason Ivler
filed a motion to quash claiming that he can no longer be
prosecuted for Reckless Imprudence Resulting to Homicide
and Damage to Property because he has already been
convicted of Reckless Imprudence Resulting to Slight
Physical Injuries. He cannot be prosecuted based on the
same offense otherwise; the accused will be placed in
double jeopardy. This was denied so it went up to the SC by
a petition for certiorari. The SC said, Jason Ivler and his
counsel are correct. A person can no longer be prosecuted
for Reckless Imprudence Resulting to Homicide and
Damage to Property after he is convicted of Reckless
Imprudence Resulting to Slight Physical Injuries. SC said,
what is being punished is the reckless imprudence. Since
what is punished is reckless imprudence the damage to
property and slight physical injuries or homicide are only
resulting felonies. Since they are only resulting felonies,
since the crime being punished is the imprudence or
negligence, one can no longer be prosecuted or convicted
after he has already been convicted and prosecuted of the
same offense. Reckless imprudence and simple negligence
are crimes by themselves. THEY ARE QUASI-OFFENSES.
Therefore, to prosecute a person after he has been
convicted of simple negligence, will result to double
jeopardy.
Take note of the case of Ivler v. Hon Modesto.
Reckless imprudence or negligence is the crime itself.
Hence, once committed or acquitted of a specific act of
reckless imprudence, the accused may not be prosecuted
again for that same act. For the essence of the quasi offense
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 CRIMINAL LAW REVIEW Book 2 | 2016 | Prosec. Garcia

of criminal negligence under Art 365 of the RPC lies in the

execution of an imprudent or negligent act that if intentionally
done, would be punishable as a felony. The law penalizes
thus the negligent or careless act, not the result thereof. The
gravity of the consequence is only taken into account to
determine the penalty; it does not qualify the substance of
the offense. And, as the careless act is single, whether the
injurious result should affect one person or several persons,
the offense (criminal negligence) remains one and the same,
and cannot be split into different crimes and prosecutions.
1st case: reckless imprudence resulting to slight physical
injuries
2nd case: reckless imprudence resulting to homicide and
damage to property
One quasi-offense cannot give rise to another
quasi-offense.
Note simple negligence is not a means to commit a
crime. They are crimes by themselves.

Q: What if A was driving his car and he collided with another

car. As a result thereof, let’s say that a person died and 4
persons suffered serious physical injuries, they have
wounds but they survived. And 1 person suffered slight
physical injuries. What is/are the crime committed by A?
A: The offender is liable for RECKLESS
IMPRUDENCE RESULTING TO HOMICIDE AND
MULTIPLE PHYSICAL INJURIES BUT NOT
SLIGHT PHYSICAL INJURY. There should be
another charge for RECKLESS IMPRUDENCE
RESULTING TO SLIGHT PHYSICAL INJURIES.
You cannot complex slight physical injury in the first
crime because it is only a light felony. And its
complexity is prohibited under Art.48. But in reality,
you no longer file a case of reckless imprudence
resulting to slight physical injury because the
moment the offender is convicted, patay na yung
first case. Because there will already be double
jeopardy. In reckless imprudence and simple
negligence what is being punished is the
imprudence and negligence that’s why the
appropriate name is reckless imprudence resulting
to homicide, simple negligence causing damage to
property, simple negligence resulting to homicide Joshua 1:9
not homicide through reckless imprudence
because what is being punished is the imprudence Have I not commanded you? Be strong and courageous. Do
and negligence. Homicide and damage to property not be afraid; do not be discouraged, for the LORD your God
are merely results of the said imprudence or will be with you wherever you go.”
negligence.
GOD BLESS!
Remember also that under Art 265 that if the result of
imprudence or negligence is only damage to property
the penalty shall only be fine. There is no penalty of
imprisonment.

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