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TITLE ONE
CRIMES AGAINST NATIONAL SECURITY

Crimes against national security

1. Treason (Art. 114);

2. Conspiracy and proposal to commit treason (Art. 115);
3. Misprision of treason (Art. 116); and
4. Espionage (Art. 117).

Crimes against the law of nations

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

2. Violation of neutrality (Art. 119);
3. Corresponding with hostile country (Art. 120);
4. Flight to enemy's country (Art. 121); and
5. Piracy in general and mutiny on the high seas (Art. 122).

Article 114
TREASON

ELEMENTS:
a. That the offender owes allegiance to the Government
of the Philippines
b. That there is a war in which the Philippines is involved
c. That the offender either

1) Levies war against the government,

1. breach of allegiance
2. actual assembling of men
3. for the purpose of executing a treasonable design

2) Adheres to the enemies, giving them aid and comfort

1. breech of allegiance
2. adherence
3. giving aid or comfort to the enemy

Requirements of levying war

A. Actual assembling of men;
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B. To execute a treasonable design by force;

C. Intent is to deliver the country in whole or in part to the
enemy; and
D. Collaboration with foreign enemy or some foreign
sovereign

Success is not important. What matters is the actual

assembly of men and the execution of treasonable design
by force.

Ways of proving treason:

a. 2 witnesses testifying to same overt act

The testimonies must refer to the same act, place and

moment of time. Treason cannot be proved by
circumstantial evidence or by extrajudicial confession.

Example: X saw arms landed in La Union and loaded

into a motor vehicle. At this stage, not sufficient to
convict yet. Y later saw the arms unloaded in a
warehouse. Will X + Y be sufficient witnesses to convict?
Answer: NO. Because the law requires that 2 witnesses
see the SAME OVERT ACT.

b. Confession of the accused in open court.

Arraignment, pre-trial, trial OK.

1. If he has pleaded NOT guilty already during

arraignment, he can still confess in open court by
stating the particular acts constituting treason.
2. During trial, simply saying Im guilty is not enough.
3. Withdrawing plea of not guilty during arraignment
not necessary
4. If during arraignment he pleads guilty, court will ask if
the accused understands is plea. Submission of
affidavit during trial, even if assisted by counsel is not
enough.
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Treason: breach of allegiance to the government,

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

Evident premeditation, superior strength and treachery

are circumstances inherent in treason, and are, therefore,
not aggravating.

Treason cannot be committed in times of peace, only in

times of war actual hostilities. But no need for
declaration of war

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

b. Serving in a puppet government (ministerial

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

c. Purpose of offender: to deliver the Philippines to

enemy country; if merely to change officials not
treason

On Citizenship
a. Filipino citizens can commit treason outside the
Philippines. But that of an alien must be committed in
the Philippines.
b. Only Filipino citizens or permanent resident aliens can
be held liable
c. Alien: with permanent resident status from the BID it
is neither the length of stay in the Philippines nor the
marriage with a Filipino that matters.
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Actual hostilities may determine the date of the

commencement of war
No such thing as attempted treason; mere attempt
consummates the crime
Giving aid or comfort material element, enhances
forces of the enemy country.

Acts which strengthen or tend to strengthen the enemy in

the conduct of war against the traitors country or that
which weaken and tend to weaken the power of the same.

Example: Financing arms procurement of enemy country.

But giving of shelter is not necessarily giving aid and
comfort.

Adherence and giving aid or comfort must concur

together.

Adherence: when a citizen intellectually or emotionally

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

Adherence may be proved by: (1) one witness; (2) from

the nature of the act itself; (3) from the circumstances
surrounding the act.

When this adherence or sympathies are converted into aid

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

Treason is a CONTINUING CRIME. Even after the war,

offender can be prosecuted.
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Treason is a continuing offense. It can be committed by a

single act or by a series of acts. It can be committed in one
single time or at different times and only one criminal intent.
In construing the provisions relating to the commission of
several acts, the same must be done in pursuance or
furtherance of the act of treason.

No matter how many acts of treason are committed by the

offender, he will be liable for only one crime of treason.

If you convict a person for treason by reason of irresistible

force or uncontrollable fear, you may use Art.12. No
treason through negligence

In the imposition of the penalty for the crime of treason, the

court may disregard the presence of mitigating and
aggravating circumstances. It may consider only the
number, nature and gravity of the acts established during
the trial. The imposition of the penalty rests largely on the
exercise of judicial discretion.

Defenses that may be availed of by the accused.

1. Duress or uncontrollable fear of immediate death; and

2. Lawful obedience to a de facto government.

When killings and other common crimes are charged as

overt act of treason, they cannot be regarded as (1)
separate crimes or (2) as complex with treason.

In the act of levying war or giving aid or comfort to the

enemy, murder, robbery, arson or falsification may be
committed by the offender. BUT the offender does not
commit the crime of treason complexed with common
crimes because such crimes are inherent to treason, being
an indispensable element of the same.

Treason distinguished from Rebellion.

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The manner in which both crimes are committed in the

same. In treason however, the purpose of the offender is to
deliver the government to the enemy country or to a
foreign power. In rebellion, the purpose of the rebels is to
substitute the government with their own form of
government. No foreign power is involved.

Treason distinguished from Sedition.

In treason, the offender repudiates his allegiance to the

government by means of force or intimidation. He does not
recognize the supreme authority of the State. He violates his
allegiance by fighting the forces of the duly constituted
authorities.

In sedition, the offender disagrees with certain policies of

the State and seeks to disturb public peace by raising a
commotion or public uprising.

Article 116
MISPRISION OF TREASON

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

b. That he has knowledge of any conspiracy (to commit

treason) against the government

c. That he conceals or does not disclose and make

known the same as soon as possible to the governor
or fiscal of the province or the mayor or fiscal of the
city in which he resides
While in treason, even aliens can commit said crime
because of the amendment to the article, no such
amendment was made in misprision of treason. Misprision of
treason is a crime that may be committed only by citizens of
the Philippines.
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Offender is punished as an accessory to the crime of

treason

Take note that the offender is a principal to the crime of

misprision of treason, yet he is penalized only as an
accessory. In the imposition of the penalty, the court is not
bound by the provisions of Article 63 and 64, referring to
indivisible penalties. In the presence of mitigating and
aggravating circumstances, the offender is punished two
degrees lower than the penalty for the crime of treason.

The criminal liability arises if the treasonous activity was still

at the conspiratorial stage

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

committed

Crime of omission

This is a felony by omission although committed with dolo,

not with culpa.

To report within a reasonable time depends on time,

place and circumstance the RPC did not fix time.

RPC states 4 individuals, what if you report to some other

high-ranking government official? Ex. PNP Director?
Judge Pimentel says any govt official of the DILG is OK.

Whether the conspirators are parents or children, and the

ones who learn the conspiracy is a parent or child, they are
required to report the same. The reason is that although
blood is thicker than water so to speak, when it comes to
security of the state, blood relationship is always subservient
to national security. Article 20 does not apply here because
the persons found liable for this crime are not considered
accessories; they are treated as principals
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Article 122
PIRACY

2 Ways of Committing Piracy

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

b. By seizing the whole or part of the cargo of said

vehicles, its equipment or personal belongings of its
complement or passengers

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

b. That the offenders are not members of its complement

or passengers of the vessel

c. That the offenders

1. attack or seize that vessel or (hence, if committed by

crew or passengers, the crime is not piracy but
robbery in the high seas)

2. seize the whole or part of the cargo of said vessel, its

equipment or personal belongings of its complement
or passengers

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

Piracy in high seas jurisdiction is with any court where

offenders are found or arrested

Piracy in internal waters jurisdiction is only with Philippine

courts

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

and theft
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under the amended article, piracy can only be

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

However, despite the amendment, P.D. No. 532 may still

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

While the Article 122 limits the offenders to non-

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

Note, however, that in Section 4 of Presidential Decree No.

532, the act of aiding pirates or abetting piracy is penalized
as a crime distinct from piracy. Said section penalizes any
person who knowingly and in any manner aids or protects
pirates, such as giving them information about the
movement of the police or other peace officers of the
government, or acquires or receives property taken by such
pirates, or in any manner derives any benefit therefrom; or
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who directly or indirectly abets the commission of piracy.

Also, it is expressly provided in the same section that the
offender shall be considered as an accomplice of the
principal offenders and punished in accordance with the
Revised Penal Code. This provision of Presidential Decree
No. 532 with respect to piracy in Philippine water has not
been incorporated in the Revised Penal Code. Neither may
it be considered repealed by Republic Act No. 7659 since
there is nothing in the amendatory law is inconsistent with
said section. Apparently, there is still the crime of abetting
piracy in Philippine waters under Presidential Decree No.
532.

Considering that the essence of piracy is one of robbery,

any taking in a vessel with force upon things or with violence
or intimidation against person is employed will always be
piracy. It cannot co-exist with the crime of robbery.
Robbery, therefore, cannot be committed on board a
vessel. But if the taking is without violence or intimidation on
persons or force upon things, the crime of piracy cannot be
committed, but only theft.

Elements of mutiny

1) The vessel is on the high seas or Philippine waters;

2) Offenders are either members of its complement, or

passengers of the vessel;

3) Offenders either

a. attack or seize the vessel; or

b. seize the whole or part of the cargo, its equipment,

or personal belongings of the crew or passengers.

Mutiny is the unlawful resistance to a superior officer, or the

raising of commotions and disturbances aboard a ship
against the authority of its commander.
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Article 123
QUALIFIED PIRACY

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

b. Whenever the pirates have abandoned their victims

without means of saving themselves

c. Whenever the crime is accompanied by murder,

homicide, physical injuries, or rape. (the above may
result to qualified mutiny)

Murder, rape, homicide, physical injuries are mere

circumstances qualifying piracy and cannot be punished as
separate crimes, nor can they be complexed with piracy.

Parricide/infanticide should be included (Judge Pimentel)

Murder/rape/homicide/physical injuries must have been

committed on the passengers or complement

In piracy, where rape, murder or homicide is committed, the

mandatory penalty of death is imposable. This means that
even if the accused enters a plea of guilty, the penalty of
death will still be imposed because death is a single and
indispensable penalty. (People vs. Rodriguez, 135 SCRA 485)

The penalty for qualified piracy is reclusion perpetua to

death. If any of the circumstances enumerated under the
law is proven or established, the mandatory penalty of
death should be imposed. The presence of mitigating or
aggravating circumstances will be ignored by the court.

Although in Article 123 merely refers to qualified piracy,

there is also the crime of qualified mutiny. Mutiny is qualified
under the following circumstances:
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(1) When the offenders abandoned the victims without

means of saving themselves; or

(2) When the mutiny is accompanied by rape, murder,

homicide, or physical injuries.

Note that the first circumstance which qualifies piracy does

not apply to mutiny.

Republic Act No. 6235 (The Anti Hi-Jacking Law)

Anti hi-jacking is another kind of piracy which is committed

in an aircraft. In other countries, this crime is known as
aircraft piracy.

Four situations governed by anti hi-jacking law:

(1) usurping or seizing control of an aircraft of Philippine

registry while it is in flight, compelling the pilots thereof
to change the course or destination of the aircraft;

(2) usurping or seizing control of an aircraft of foreign

registry while within Philippine territory, compelling the
pilots thereof to land in any part of Philippine territory;

(3) carrying or loading on board an aircraft operating as a

public utility passenger aircraft in the Philippines, any
flammable, corrosive, explosive, or poisonous
substance; and

(4) loading, shipping, or transporting on board a cargo

aircraft operating as a public utility in the Philippines,
any flammable, corrosive, explosive, or poisonous
substance if this was done not in accordance with the
rules and regulations set and promulgated by the Air
Transportation Office on this matter.
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Between numbers 1 and 2, the point of distinction is whether

the aircraft is of Philippine registry or foreign registry. The
common bar question on this law usually involves number 1.
The important thing is that before the anti hi-jacking law can
apply, the aircraft must be in flight. If not in flight, whatever
crimes committed shall be governed by the Revised Penal
Code. The law makes a distinction between aircraft of a
foreign registry and of Philippine registry. If the aircraft
subject of the hi-jack is of Philippine registry, it should be in
flight at the time of the hi-jacking. Otherwise, the anti hi-
jacking law will not apply and the crime is still punished
under the Revised Penal Code. The correlative crime may
be one of grave coercion or grave threat. If somebody is
killed, the crime is homicide or murder, as the case may be.
If there are some explosives carried there, the crime is
destructive arson. Explosives are by nature pyro-techniques.
Destruction of property with the use of pyro-technique is
destructive arson. If there is illegally possessed or carried
firearm, other special laws will apply.

On the other hand, if the aircraft is of foreign registry, the

law does not require that it be in flight before the anti hi-
jacking law can apply. This is because aircrafts of foreign
registry are considered in transit while they are in foreign
countries. Although they may have been in a foreign
country, technically they are still in flight, because they have
to move out of that foreign country. So even if any of the
acts mentioned were committed while the exterior doors of
the foreign aircraft were still open, the anti hi-jacking law will
already govern.

Note that under this law, an aircraft is considered in flight

from the moment all exterior doors are closed following
embarkation until such time when the same doors are again
opened for disembarkation. This means that there are
passengers that boarded. So if the doors are closed to bring
the aircraft to the hangar, the aircraft is not considered as in
flight. The aircraft shall be deemed to be already in flight
even if its engine has not yet been started.
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TITLE TWO

CRIMES AGAINST THE FUNDAMENTAL LAWS OF THE STATE

Crimes against the fundamental laws of the State

1. Arbitrary detention (Art. 124);

2. Delay in the delivery of detained persons to the proper

judicial authorities (Art. 125);

3. Delaying release (Art. 126);

4. Expulsion (Art. 127);

5. Violation of domicile (Art. 128);

6. Search warrants maliciously obtained and abuse in the

service of those legally obtained (Art. 129);

7. Searching domicile without witnesses (Art. 130);

8. Prohibition, interruption, and dissolution of peaceful

meetings (Art. 131);

9. Interruption of religious worship (Art. 132); and

10. Offending the religious feelings (Art. 133);

Article 124

ARBITRARY DETENTION

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

peace and order).

b. That he detains a person (actual restraint).

c. That the detention was without legal grounds (cannot

be committed if with warrant).

Detention: when a person is placed in confinement or

there is a restraint on his person.

Only those public officers whose official duties carry with it

the authority to make an arrest and detain persons can be
guilty of this crime. So, if the offender does not possess such
authority, the crime committed by him is illegal detention.

Though the elements specify that the offender be a

public officer or employee, private individuals who
conspire with public officers can also be liable.

In a case decided by the Supreme Court a Barangay

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

Legal grounds for the detention of any person:

a. commission of a crime

b. violent insanity or other ailment requiring compulsory

confinement of the patient in a hospital

c. escaped prisoner
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When the peace officers acted in good faith even if

the three (3) grounds mentioned above are not obtaining,
there is no Arbitrary Detention.

Without legal grounds:

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

b. not suffering from violent insanity or any other ailment

requiring compulsory confinement in a hospital

Grounds for warrantless arrest:

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

b. Officer must have probable cause to believe based on

personal knowledge of facts and circumstances that
the person probably committed the crime

c. For escaped prisoner no need for warrant

Example: Y was killed by unknown assailant. Officers got a

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

Arbitrary detention can be committed thru simple

imprudence or negligence. (People vs. Misa)

Periods of Detention penalized:

1. Detention not exceeding three days;

2. Detention for more than three days but not more than 15
days;

3. Detention for more than 15 days but not more than 6

months; and
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4. Detention for more than 6 months.

Continuing crime is different from a continuous crime

Ramos v. Enrile: Rebels later on retire. According to the

SC, once you have committed rebellion and have not
been punished or amnestied, then the rebels continue to
engage in rebellion, unless the rebels renounce his
affiliation. Arrest can be made without a warrant
because this is a continuing crime.

Article 125
DELAY IN THE DELIVERY OF DETAINED PERSONS

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

b. That he has detained a person for some legal grounds

c. That he fails to deliver such person to the proper judicial

authority within:
1. 12 hours, if detained for crimes/offenses punishable
by light penalties, or their equivalent
2. 18 hours, for crimes/offenses punishable by
correctional penalties, or their equivalent or
3. 36 hours, for crimes/offenses punishable by capital
punishment or afflictive penalties, or their equivalent

Article 125 covers situations wherein the person detained

has been arrested without a warrant but his arrest is
nonetheless lawful. It is a felony committed by omission
because of the failure of the offender to deliver the
detained person to the proper judicial authority within 12
hours, 18 hours and 36 hours as the case may be.

At the beginning, the detention is legal since it is in the

pursuance of a lawful arrest. However, the detention
becomes arbitrary when the period thereof exceeds 12, 18
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or 36 hours, as the case may be, depending on whether the

crime is punished by light, correctional or afflictive penalty
or their equivalent.

Really means delay in filing necessary information or

charging of person detained in court.
May be waived if a preliminary investigation is asked for.

Under the Revised Rules of Court, when the person arrested

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

Does not contemplate actual physical delivery but at

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

Delivery of detained person consists in making charge of

filing a compliant against the prisoner with the proper
judicial authority. It does not involve the physical delivery of
the prisoner before the judge (Sayo vs. Chief of Police).

The filing of the information in court does not cure

illegality of detention. Neither does it affect the legality of
the confinement under process issued by the court.
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To escape from this, officers usually ask accused to

execute a waiver which should be under oath and with
assistance of counsel. Such waiver is not violative of the
accused constitutional right.

What is length of waiver? Light offense 5 days. Serious

and less serious offenses 7 to 10 days. (Judge Pimentel)

Article does not apply when arrest is via a warrant of

arrest

Q. Within what period should a police officer who has

arrested a person under a warrant of arrest turn over the
arrested person to the judicial authority?

A. There is no time limit specified except that the return

must be made within a reasonable time. The period fixed
by law under Article 125 does not apply because the arrest
was made by virtue of a warrant of arrest.

If offender is a private person, crime is illegal detention

Before Article 125 may be applied, it is necessary that

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

A police officer has no authority to arrest and detain a

person on the basis merely of the complaint of the
offended party, even if after investigation he becomes
convinced that the accused is guilty of the offense
charged. What the complainant may do is to file a
complaint with the court and ask for the issuance of a
warrant of arrest.
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Article 126
DELAYING RELEASE

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

b. That there is a judicial or executive order for the release

of a prisoner or detention prisoner, or that there is a
proceeding upon a petition for the liberation of such
person

c. That the offender without good reason delays:

1. the service of the notice of such order to the

prisoner, or

2. the performance of such judicial or executive order

for the release of the prisoner, or
3. the proceedings upon a petition for the release of
such person

Three acts are punishable:

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

b. delaying the service of notice of such order to said

prisoner

c. delaying the proceedings upon any petition for the

liberation of such person

Wardens and jailers are the persons most likely to violate

this provision

Provision does not include legislation

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Article 127
EXPULSION

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

b. That he expels any person from the Philippines, or

compels a person to change his residence

c. That the offender is not authorized to do so by law

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

b. by compelling a person to change his residence

The essence of this crime is coercion but the specific crime is

expulsion when committed by a public officer. If
committed by a private person, the crime is grave coercion.

In the Philippines, only the President of the Republic has the

power to deport aliens whose continued stay in the country
constitutes a menace to the peace and safety of the
community.

In the case of Filipino citizens, only the court, by final

judgment, can order a person to change his residence.

In Villavicencio v. Lukban, 39 Phil 778, the mayor of the City

of Manila wanted to make the city free from prostitution. He
ordered certain prostitutes to be transferred to Davao,
without observing due processes since they have not been
charged with any crime at all. It was held that the crime
committed was expulsion.

Does not include undesirable aliens; destierro; or when

sent to prison
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Article 128
VIOLATION OF DOMICILE

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

b. That he is not authorized by judicial order to enter the

dwelling and/or to make a search therein for papers or
other effects

c. That he commits any of the following acts:

1. entering any dwelling against the will of the owner

thereof

2. searching papers or other effects found therein

without the previous consent of such owner

3. refusing to leave the premises, after having

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

Aggravating Circumstance (medium and maximum of

penalty imposed):
a. Offense committed at nighttime

b. Papers or effects not constituting evidence of a crime

be not returned immediately

In order to commit this crime, the entry must be against the

will of the owner. If the entry is only without the consent of
the owner, the crime of violation of domicile is not
committed.
The prohibition may be expressed or implied. If the signs Do
not enter and Strangers keep out are posted in front of
the house or dwelling, then the prohibition is express. If the
door is locked, or even if it is open but these are barriers to
indicate the manifest intention of the owner to bar strangers
from entering, there is implied prohibition.
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The primary object of the law is to preserve the privacy of

abode of the offended party. Hence, if the privacy is
already lost, as when the offender has been allowed by the
owner to enter the dwelling together with other persons,
any subsequent change of attitude will not restore the
privacy which was already lost. When privacy is waived,
trespass to dwelling or violation of domicile cannot be
committed.

3 acts punishable:
a. person enters dwelling without consent or against the
will

In the plain view doctrine, public officer should be

legally entitled to be in the place where the effects
were found. If he entered the place illegally and he
saw the effects, doctrine inapplicable; thus, he is liable
for violation of domicile.

b. person enters and searches for papers and effects

Public officer who enters with consent searches for

paper and effects without the consent of the owner.
Even if he is welcome in the dwelling, it does not mean
he has permission to search.

c. person entered secretly and refuses to leave after

being asked to

The act punished is not the entry but the refusal to

leave. If the offender upon being directed to leave,
followed and left, there is no crime of violation of
domicile. Entry must be done surreptitiously; without this,
crime may be unjust vexation. But if entering was done
against the will of the occupant of the house, meaning
there was express or implied prohibition from entering
the same, even if the occupant does not direct him to
leave, the crime of violation of domicile is already
committed because it would fall in number 1.
 P a g e | 24

Being authorized by law means with search warrant,

to save himself or do some things good for humanity

There are only three recognized instances when search

without a warrant is considered valid, and, therefore, the
seizure of any evidence done is also valid. Outside of these,
search would be invalid and the objects seized would not
be admissible in evidence.

(1) Search made incidental to a valid arrest;

(2) Where the search was made on a moving vehicle or

vessel such that the exigency of he situation prevents
the searching officer from securing a search warrant;

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

Papers and effects need not be part of a crime.

Article 129
SEARCH WARRANTS MALICIOUSLY OBTAINED

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

b. That he procures a search warrant

c. That there is no just cause

In order that a search warrant may be issued, it must be

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

This means there was no probable cause determined in

obtaining the search warrant.
 P a g e | 25

Although void, the search warrant is entitled to respect

because of presumption of regularity. One remedy is a
motion to quash the search warrant, not refusal to abide
by it. The public officer may also be prosecuted for
perjury, because for him to succeed in obtaining a search
warrant without a probable cause, he must have perjured
himself or induced someone to commit perjury to
convince the court.

Article 130
SEARCHING DOMICILE WITHOUT WITNESSES

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

b. That he is armed with a search warrant legally

procured

c. That he searches the domicile, papers or other

belongings of any person

d. That the owner, or any member of his family, or two

witnesses residing in the same locality are not present

Order of those who must witness the search:

a. Homeowner

b. Members of the family of sufficient age and discretion

c. Responsible members of the community (cant be

influenced by the searching party)

Validity of the search warrant can be questioned only in 2

courts: 1) where issued or 2) where the case is pending.
Latter is preferred for objective determination.
 P a g e | 26

Article 131
PROHIBITION, INTERRUPTION, AND DISSOLUTION OF PEACEFUL
MEETINGS

ELEMENTS:
a. Offender is a public officer or employee

b. He performs any of the ff. acts:

1. prohibiting or interrupting, without legal ground the

holding of a peaceful meeting, or dissolving the
same (e.g. denial of permit in arbitrary manner).

2. hindering any person from joining any lawful

association or from attending any of its meetings.

prohibiting or hindering any person from addressing,

either alone or together with others, any petition to the
authorities for the correction of abuses or redress of
grievances

Two criteria to determine whether Article 131 would be

violated:

(1) Dangerous tendency rule applicable in times of

national unrest such as to prevent coup detat.

(2) Clear and present danger rule applied in times of

peace. Stricter rule.

If the offender is a private individual, the crime is

disturbance of public order (Art 153)

Meeting must be peaceful and there is no legal ground

for prohibiting, dissolving or interrupting that meeting

If in the course of the assembly the participants commit

illegal acts like oral defamation or inciting to sedition, a
public officer or law enforcer can stop or dissolve the
 P a g e | 27

meeting. The permit given is not a license to commit a

crime.

Meeting is subject to regulation

If the permit is denied arbitrarily, Article 131 is violated. If the

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

Offender must be a stranger, not a participant, in the

peaceful meeting; otherwise, its unjust vexation

Interrupting and dissolving a meeting of the municipal

council by a public officer is a crime against the
legislative body, not punishable under this article

The person talking on a prohibited subject at a public

meeting contrary to agreement that no speaker should
touch on politics may be stopped

But stopping the speaker who was attacking certain

churches in public meeting is a violation of this article

Prohibition must be without lawful cause or without lawful

authority

Those holding peaceful meetings must comply with local

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

Distinctions between prohibition, interruption, or dissolution

of peaceful meetings under Article 131,
and tumults and other disturbances, under Article 153

(1) As to the participation of the public officer

 P a g e | 28

In Article 131, the public officer is not a participant. As

far as the gathering is concerned, the public officer is a
third party.

If the public officer is a participant of the assembly and

he prohibits, interrupts, or dissolves the same, Article 153
is violated if the same is conducted in a public place.

(2) As to the essence of the crime

In Article 131, the offender must be a public officer

and, without any legal ground, he prohibits, interrupts,
or dissolves a peaceful meeting or assembly to prevent
the offended party from exercising his freedom of
speech and that of the assembly to petition a
grievance against the government.

In Article 153, the offender need not be a public officer.

The essence of the crime is that of creating a serious
disturbance of any sort in a public office, public
building or even a private place where a public
function is being held.

Article 132
INTERRUPTION OF RELIGIOUS WORSHIP

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

b. That religious ceremonies or manifestations of any

religion are about to take place or are going on

c. That the offender prevents or disturbs the same

Circumstance qualifying the offense: if committed with

violence or threats

Reading of Bible and then attacking certain churches in a

public plaza is not a ceremony or manifestation of
 P a g e | 29

religion, but only a meeting of a religious sect. But if done

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

X, a private person, boxed a priest while the priest was

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

When priest is solemnizing marriage, he is a person in

authority, although in other cases, hes not.

Article 133
OFFENDING RELIGIOUS FEELINGS

ELEMENTS:
a. That the acts complained of were performed

1. in a place devoted to religious worship, or (for this

element, no need of religious ceremony, only the
place is material)
2. during the celebration of any religious ceremony

b. That the acts must be notoriously offensive to the

feelings of the faithful (deliberate intent to hurt the
feelings)

c. The offender is any person

d. There is a deliberate intent to hurt the feelings of the

faithful, directed against religious tenet

If in a place devoted to religious purpose, there is no

need for an ongoing religious ceremony
 P a g e | 30

Example of religious ceremony (acts performed outside

the church). Processions and special prayers for burying
dead persons but NOT prayer rallies

Acts must be directed against religious practice or

dogma or ritual for the purpose of ridicule, as mocking or
scoffing or attempting to damage an object of religious
veneration

There must be deliberate intent to hurt the feelings of the

faithful, mere arrogance or rudeness is not enough

In determining whether an act is offensive to the feelings of

the faithful, the same must be viewed or judged from the
standpoint of the offended religion and not from the point
of view of the offender (People vs. Baes, 68 Phil. 203).

TITLE THREE
CRIMES AGAINST PUBLIC ORDER

Crimes against public order

1. Rebellion or insurrection (Art. 134);

Coup d etat (Art. 134-A)

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

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

4. Inciting to rebellion (Art. 138);

5. Sedition (Art. 139);

6. Conspiracy to commit sedition (Art. 141);

7. Inciting to sedition (Art. 142);

 P a g e | 31

8. Acts tending to prevent the meeting of Congress and

similar bodies (Art. 143);

9. Disturbance of proceedings of Congress or similar

bodies (Art. 144);

10. Violation of parliamentary immunity (Art. 145);

11. Illegal assemblies (Art. 146);

12. Illegal associations (Art. 147);

13. Direct assaults (Art. 148);

14. Indirect assaults (Art. 149);

15. Disobedience to summons issued by Congress, its

committees, etc., by the constitutional commissions, its
committees, etc. (Art. 150);

16. Resistance and disobedience to a person in authority

or the agents of such person (Art. 151);

17. Tumults and other disturbances of public order (Art.

153);

18. Unlawful use of means of publication and unlawful

utterances (Art. 154);

19. Alarms and scandals (Art. 155);

20. Delivering prisoners from jails (Art. 156);

21. Evasion of service of sentence (Art. 157);

22. Evasion on occasion of disorders (Art. 158);

23. Violation of conditional pardon (Art. 159); and

 P a g e | 32

24. Commission of another crime during service of penalty

imposed for another previous offense (Art. 160).

Article 134
REBELLION OR INSURRECTION
ELEMENTS:
a. That there be

1. public uprising and

2. taking arms against the government (force/violence)

b. That the purpose of the uprising or movement is either

1. to remove from the allegiance to said government or

its laws

i. the territory of the Philippines or any part thereof, or

ii. any body of land, naval or other armed forces, or

2 To deprive the chief executive or congress, wholly or

partially, of any of their powers or prerogatives

Persons liable for rebellion

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

b. Any person who, while holding any public office or

employment, takes part therein by:
1. engaging in war against the forces of the
government

2. destroying property or committing serious violence

 P a g e | 33

3. exacting contributions or diverting public funds from

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

4. Any person merely participating or executing the

command of others in rebellion

The essence of this crime is a public uprising with the taking

up of arms. It requires a multitude of people. It aims to
overthrow the duly constituted government. It does not
require the participation of any member of the military or
national police organization or public officers and generally
carried out by civilians. Lastly, the crime can only be
committed through force and violence.

The crime of rebellion cannot be committed by a single

individual. Invariably, it is committed by several persons for
the purpose of overthrowing the duly constituted or
organized government. In the Philippines, what is known to
the ordinary citizen as a symbol of Government would be
the barangay, represented by its officials; the local
government represented by the provincial and municipal
officials; and the national government represented by the
President, the Chief Justice and the Senate President and
the Speaker of the House of Representatives.

Success is immaterial, purpose is always political

The crime of rebellion is essentially a political crime. The

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

Rebellion used where the object of the movement is

completely to overthrow and supersede the existing
government
 P a g e | 34

Insurrection refers to a movement which seeks merely to

effect some change of minor importance to prevent the
exercise of govt authority w/ respect to particular
matters or subjects

The phrase to remove allegiance from the government

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

Allegiance is a generic term which includes loyalty, civil

obedience and civil service.

The law on rebellion however, does not speak only of

allegiance or loss of territory. It also includes the efforts of
the rebel to deprive the President of the Philippines of the
exercise of his power to enforce the law, to exact
obedience of laws and regulations duly enacted and
promulgated by the duly constituted authorities.

Actual clash of arms w/ the forces of the govt, not

necessary to convict the accused who is in conspiracy w/
others actually taking arms against the govt

Purpose of the uprising must be shown but it is not

necessary that it be accomplished

A change of government w/o external participation

RISING PUBLICLY and TAKING ARMS AGAINST

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

When any of the objectives of rebellion is pursued but there

is no public uprising in the legal sense, the crime is direct
assault of the first form. But if there is rebellion, with public
uprising, direct assault cannot be committed.
 P a g e | 35

Mere giving of aid or comfort is not criminal in the case of

rebellion. Merely sympathizing is not participation, there
must be ACTUAL participation

There must be a public apprising and taking up of arms for

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

Not necessary that there is killing, mere threat of removing

Phil is sufficient

Rebellion may be committed even without a single shot

being fired. No encounter needed. Mere public uprising
with arms enough.

Rebellion cannot be complexed with any other crime.

Common crimes perpetrated in furtherance of a political

offense are divested of their character as common
offenses and assume the political complexion of the main
crime which they are mere ingredients, and consequently,
cannot be punished separately from the principal offense,
or complexed with the same.

Article 134-A
COUP D ETAT

ELEMENTS:
a. Swift attack

b. Accompanied by violence, intimidation, threat,

strategy or stealth

c. Directed against:
 P a g e | 36

1. duly constituted authorities

2. any military camp or installation

3. communication networks or public utilities

4. other facilities needed for the exercise and

continued possession of power

d. Singly or simultaneously carried out anywhere in the

Philippines

d. Committed by any person or persons belonging to

the military or police or holding any public office or
employment; with or without civilian support or
participation

e. With or without civilian support or participation

f. Purpose of seizing or diminishing state power

The essence of the crime is a swift attack upon the facilities

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

The objective may not be to overthrow the government

but only to destabilize or paralyze the government
through the seizure of facilities and utilities essential to the
continued possession and exercise of governmental
powers. It requires as principal offender a member of the
AFP or of the PNP organization or a public officer with or
without civilian support. Finally, it may be carried out not
only by force or violence but also through stealth, threat
or strategy.
 P a g e | 37

Article 135
PENALTIES

Who are liable?

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

b. Any person who, while holding any public office or

employment, takes part therein
1. engaging in war against the forces of the govt

2. destroying property or committing serious violence

3. exacting contributions or diverting public funds from

the lawful purpose for which they have been
appropriated

c. Any person merely participating or executing the

command of other in a rebellion

When conspiracy is present in the commission of the crime,

the act of one is the act of all. In committing rebellion and
coup detat, even if conspiracy as a means to commit the
crime is established, the principal of criminal liability under
Article 17 of the Revised Penal Code is not followed.

Serious violence is that inflicted upon civilians, which may

result in homicide. It is not limited to hostilities against the
armed force.

Diverting public funds is malversation absorbed in

rebellion

NOTES:
a. Public officer must take active part because mere
silence or omission not punishable in rebellion
 P a g e | 38

b. It is not a defense in rebellion that the accused never

took the oath of allegiance to, or that they never
recognized the government

c. Rebellion cannot be complexed with murder and other

common crimes committed in pursuance of the
movement to overthrow the government

Subversion, just like the crimes of rebellion, conspiracy or

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

d. Killing, robbing etc for private persons or for profit,

without any political motivation, would be separately
punished and would not be absorbed in the rebellion.

Article 138
INCITING TO REBELLION OR INSURRECTION

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

b. That he incites others to the execution of any of the

acts of rebellion

c. That the inciting is done by means of speeches,

proclamations, writings, emblems, banners or other
representations tending to the same end

Intentionally calculated to seduce others to rebellion

There must be uprising to take up arms and rise publicly

for the purposes indicated in Art 134
 P a g e | 39

One who promotes, maintains or heads a rebellion and who

act at the same time incites or influences others to join him
in his war efforts against the duly constituted government
cannot be held criminally liable for the crime of inciting to
rebellion because, as the principal to the crime of rebellion,
the act of inciting to commit a rebellion is inherent to the
graver crime of rebellion.

Article 139
SEDITION

ELEMENTS:
a. That the offenders rise

1. Publicly (if no public uprising = tumult and other

disturbance of public order)

2. Tumultuously (vis--vis rebellion where there must be

a taking of arms)

b. That they employ force, intimidation, or other means

outside of legal methods

c. That the offenders employ any of those means to attain

any of the following objects:

1. to prevent the promulgation or execution of any law

or the holding of any popular election

2. to prevent the national government, or any

provincial or municipal government, or any public
thereof from freely exercising its or his functions, or
prevent the execution of any administrative order
 P a g e | 40

3. to inflict any act or hate or revenge upon the person

or property of any public officer or employee

4. to commit for any political or social end, any act of

hate or revenge against private persons or any social
class (hence, even private persons may be offended
parties)

5. to despoil, for any political or social end, any person,

municipality or province, or the national government
of all its property or any part thereof

Sedition: raising of commotion or disturbances in the

State. Its ultimate object is a violation of the public peace
or at least such measures that evidently engenders it.

The crime of sedition is committed by rising publicly and

tumultuously. The two elements must concur.

The crime of sedition does not contemplate the taking up

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

Difference from rebellion object or purpose of the

uprising.

For sedition sufficient that uprising is tumultuous. In

rebellion there must be taking up of arms against the
government.

Sedition purpose may be either political or social. In

rebellion always political
 P a g e | 41

Tumultuous is a situation wherein the disturbance or

confusion is caused by at least four persons. There is no
requirement that the offenders should be armed.
Preventing public officers from freely exercising their
functions

In sedition offender may be a private or public person

(Ex. Soldier)

Public uprising and the object of sedition must concur

Q: Are common crimes absorbed in sedition?

In P v. Umali, SC held that NO. Crimes committed in that

case were independent of each other.

Preventing election through legal means NOT sedition

But when sugar farmers demonstrated and destroyed the

properties of sugar barons sedition

Persons liable for sedition:

a. leader of the sedition, and

b. other persons participating in the sedition

The objective of the law in criminalizing sedition is to put a

limit to the freedom of expression or the right of the people
to assemble and petition the government for redress of
grievance.

Article 142
INCITING TO SEDITION

ELEMENTS:
a. That the offender does not take a direct part in the
crime of sedition
 P a g e | 42

b. That he incites others to the accomplishment of any of

the acts which constitute sedition (134)

c. That the inciting is done by means of speeches,

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

b. Uttering seditious words or speeches which tend to

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

c. Knowingly concealing such evil practices

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

b. when they tend to instigate others to cabal and meet

together for unlawful purposes; or

c. when they suggest or incite rebellious conspiracies or

riots; or

d. when they lead or tend to stir up the people against

the lawful authorities or to disturb the peace of the
community, the safety and order of the government

Only non-participant in sedition may be liable.

Inciting to sedition is an element of sedition. It cannot be

treated as a separate offense against one who is a part of a
 P a g e | 43

group that rose up publicly and tumultuously and fought the

forces of government.

Considering that the objective of sedition is to express

protest against the government and in the process creating
hate against public officers, any act that will generate
hatred against the government or a public officer
concerned or a social class may amount to Inciting to
sedition. Article 142 is, therefore, quite broad.

The mere meeting for the purpose of discussing hatred

against the government is inciting to sedition. Lambasting
government officials to discredit the government is Inciting
to sedition. But if the objective of such preparatory actions
is the overthrow of the government, the crime is inciting to
rebellion.

ILLEGAL ASSEMBLIES AND ASSOCIATIONS

Article 146
ILLEGAL ASSEMBLIES

Two (2) Types of illegal assemblies:

a. Meeting of the first form

1. Meeting, gathering or group of persons whether in a

fixed place or moving

2. purpose : to commit any of crimes punishable under

the code

3. meeting attended by armed persons

 P a g e | 44

b. Meeting of the second form

1. Meeting, gathering or group of persons whether in a

fixed place or moving

2. Audience whether armed or not, is incited to the

commission of the crime of treason, rebellion or
insurrection, sedition or direct assault.

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

Persons liable for illegal assembly

a. the organizers or leaders of the meeting

b. persons merely present at the meeting (except when

presence is out of curiosity not liable)

Responsibility of persons merely present at the meeting

a. if they are not armed, penalty is arresto mayor

b. if they carry arms, like bolos or knives, or licensed

firearms, penalty is prision correccional

Presumptions if person present at the meeting carries an

unlicensed firearm:

a. purpose of the meeting is to commit acts punishable

under the RPC

b. considered as leader or organizer of the meeting

Those who incite the audience, by means of speeches,

printed matters, and other representation, to commit
treason, rebellion or insurrection, sedition or assault a person
in authority, shall be deemed leaders or organizers of said
meeting.
 P a g e | 45

The gravamen of the offense is mere assembly of or

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

Two forms of illegal assembly

(1) No attendance of armed men, but persons in the

meeting are incited to commit treason, rebellion or
insurrection, sedition or assault upon a person in
authority. When the illegal purpose of the gathering is
to incite people to commit the crimes mentioned
above, the presence of armed men is unnecessary.
The mere gathering for the purpose is sufficient to bring
about the crime already.

(2) Armed men attending the gathering If the illegal

purpose is other than those mentioned above, the
presence of armed men during the gathering brings
about the crime of illegal assembly.

Example: Persons conspiring to rob a bank were

arrested. Some were with firearms. Liable for illegal
assembly, not for conspiracy, but for gathering with
armed men.

Distinction between illegal assembly and illegal association

In illegal assembly, the basis of liability is the gathering for an

illegal purpose which constitutes a crime under the Revised
Penal Code.

In illegal association, the basis is the formation of or

organization of an association to engage in an unlawful
purpose which is not limited to a violation of the Revised
 P a g e | 46

Penal Code. It includes a violation of a special law or those

against public morals. Meaning of public morals: inimical
to public welfare; it has nothing to do with decency., not
acts of obscenity.

Article 147
ILLEGAL ASSOCIATIONS

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

Persons liable:
a. founders, directors and president of the association
b. mere members of the association

Public morals refers to crimes punished under Title Six of the

Revised Penal Code, namely, gambling, grave scandal,
prostitution and vagrancy.

ASSAULT, RESISTANCE AND DISOBEDIENCE

Article 148
DIRECT ASSAULT

ELEMENTS OF THE 1ST FORM OF DIRECT ASSAULT

a. That the offender employs force or intimidation.
 P a g e | 47

b. That the aim of the offender is to attain any of the

purposes of the crime of rebellion or any of the objects
of the crimes of sedition. (victim need not be person in
authority)

c. That there is no public uprising.

Example of the first form of direct assault:

Three men broke into a National Food Authority warehouse

and lamented sufferings of the people. They called on
people to help themselves to all the rice. They did not even
help themselves to a single grain.

The crime committed was direct assault. There was no

robbery for there was no intent to gain. The crime is direct
assault by committing acts of sedition under Article 139 (5),
that is, spoiling of the property, for any political or social
end, of any person municipality or province or the national
government of all or any its property, but there is no public
uprising.

ELEMENTS OF THE 2ND FORM OF DIRECT ASSAULT:

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

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

agent.

c. That at the time of the assault the person in authority or

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

d. That the offender knows that the one he is assaulting is

a person in authority or his agent in the exercise of his
duties (with intention to offend, injure or assault).
 P a g e | 48

e. That there is no public uprising.

Crime of direct assault can only be committed by means of

dolo. It cannot be committed by culpa.

Article 149
INDIRECT ASSAULT

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

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

agent.

c. That the offender makes use of force or intimidation

upon such person coming to the aid of the authority or
his agent.

Indirect assault can be committed only when a direct

assault is also committed

To be indirect assault, the person who should be aided is

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

The victim in indirect assault should be a private person who

comes in aid of an agent of a person in authority. The
assault is upon a person who comes in aid of the agent of a
person in authority. The victim cannot be the person in
authority or his agent.

Take note that under Article 152, as amended, when any

person comes in aid of a person in authority, said person at
that moment is no longer a civilian he is constituted as an
 P a g e | 49

agent of the person in authority. If such person were the

one attacked, the crime would be direct assault

Article 151
RESISTANCE/DISOBEDIENCE TO A PERSON IN AUTHORITY OR
THE AGENT OF SUCH PERSON (par. 1)

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

b. That the offender resists or seriously disobeys such

person in authority or his agent.

c. That the act of the offender is not included in the

provisions of arts. 148, 149 and 150.

SIMPLE DISOBEDIENCE (par. 2)

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

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

authority.

c. That such disobedience is not of a serious nature.

Article 152
PERSONS IN AUTHORITY/AGENTS OF PERSONS IN AUTHORITY:

Persons in Authority any person directly vested with

jurisdiction, whether as an individual or as a member of
some court or governmental corporation, board or
commission.
 P a g e | 50

Examples of Persons in Authority :

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

Agent of Person in Authority any person who, by direct

provision of law or by election or by appointment by
competent authority, is charged with the maintenance of
public order and the protection and security of life and
property.

Examples of agents of PIA :

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

Section 388 of the Local Govt Code provides that for

purposes of the RPC, the punong barangay, sangguniang
barangay members and members of the lupong
tagapamayapa in each barangay shall be deemed as
persons in authority in their jurisdictions, while other
barangay officials and members who may be designated
by law or ordinance and charged with the maintenance
of public order, protection and the security of life,
property, or the maintenance of a desirable and
balanced environment, and any barangay member who
comes to the aid of persons in authority shall be deemed
AGENT of persons in authority.
 P a g e | 51

When the offended party is a person in authority and

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

CRIMES AGAINST PUBLIC DISORDERS

Article 153
TUMULTS AND OTHER DISTURBANCES OF PUBLIC ORDER

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

b. Interrupting or disturbing public performances,

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

c. Making any outcry tending to incite rebellion or sedition

in any meeting, association or public place

d. Displaying placards or emblems which provoke a

disturbance of public order in such place

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

legally executed.
Article 155
ALARMS AND SCANDALS

TYPES:
 P a g e | 52

a. Discharging any firearm, rocket, firecracker, or other

explosive within any town or public place, calculated
to cause alarm or danger

b. Instigating or taking active part in any charivari or other

disorderly meeting offensive to another or prejudicial to
public tranquility

c. Disturbing the public peace while wandering about at

night or while engaged in any other nocturnal
amusement

d. Causing any disturbance or scandal in public places

while intoxicated or otherwise, provided the act is not
covered by Art 153 (tumult).

Understand the nature of the crime of alarms and

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

Charivari mock serenade or discordant noises made

with kettles, tin horns etc, designed to deride, insult or
annoy

When a person discharges a firearm in public, the act may

constitute any of the possible crimes under the Revised
Penal Code:

(1) Alarms and scandals if the firearm when discharged

was not directed to any particular person;

(2) Illegal discharge of firearm under Article 254 if the

firearm is directed or pointed to a particular person
when discharged but intent to kill is absent;

(3) Attempted homicide, murder, or parricide if the firearm

when discharged is directed against a person and
intent to kill is present.
 P a g e | 53

In this connection, understand that it is not necessary that

the offended party be wounded or hit. Mere discharge of
firearm towards another with intent to kill already amounts
to attempted homicide or attempted murder or attempted
parricide. It can not be frustrated because the offended
party is not mortally wounded.

In Araneta v. Court of Appeals, it was held that if a person is

shot at and is wounded, the crime is automatically
attempted homicide. Intent to kill is inherent in the use of
the deadly weapon.

(4) Grave Threats If the weapon is not

discharged but merely pointed to another

(5) Other Light Threats If drawn in a quarrel but not in

self defense

What governs is the result, not the intent

Article 156
DELIVERING PRISONERS FROM JAILS

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

b. That the offender removes therefor such person, or

helps the escape of such person (if the escapee is
serving final judgment, he is guilty of evasion of
sentence).

c. Offender is a private individual

Prisoner may be detention prisoner or one sentenced by

virtue of a final judgment
 P a g e | 54

Even if the prisoner is in the hospital or asylum or any place

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

A policeman assigned to the city jail as guard who while

off-duty released a prisoner is liable here

Even if the prisoner returned to the jail after several hours,

the one who removed him from jail is liable.

It may be committed through negligence

Circumstances qualifying the offense is committed by

means of violence, intimidation or bribery.

Mitigating circumstance if it takes place outside the

penal establishment by taking the guards by surprise

correlate the crime of delivering person from jail with

infidelity in the custody of prisoners punished under Articles
223, 224 and 225 of the Revised Penal Code. In both acts,
the offender may be a public officer or a private citizen.
Do not think that infidelity in the custody of prisoners can
only be committed by a public officer and delivering
persons from jail can only be committed by private
person. Both crimes may be committed by public officers
as well as private persons.

In both crimes, the person involved may be a convict or a

mere detention prisoner.

The only point of distinction between the two crimes lies on

whether the offender is the custodian of the prisoner or not
at the time the prisoner was made to escape.
If the offender is the custodian at that time, the crime is
infidelity in the custody of prisoners. But if the offender is
not the custodian of the prisoner at that time, even
 P a g e | 55

though he is a public officer, the crime he committed is

delivering prisoners from jail.

Article 157
EVASION OF SERVICE OF SENTENCE

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

b. That he is serving his sentence which consists in

deprivation of liberty (destierro included)

c. That he evades the service of his sentence by

escaping during the term if his sentence. (fact of
return immaterial).

By the very nature of the crime, it cannot be committed

when the prisoner involved is merely a detention prisoner.
But it applies to persons convicted by final judgment with
a penalty of destierro.

A detention prisoner even if he escapes from confinement

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

In leaving or escaping from jail or prison, that the prisoner

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

A continuing offense.

Offenders not minor delinquents nor detention prisoners

If escaped within the 15 day appeal period no evasion

No applicable to deportation as the sentence

 P a g e | 56

The crime of evasion of service of sentence may be

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

If the sentence violated is destierro, the penalty upon the

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

Circumstances qualifying the offense (done thru):

a. unlawful entry (by scaling)

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

c. using picklocks, false keys, disguise, deceit, violence or

intimidation

d. connivance with other convicts or employees of the

penal institution

A, a foreigner, was found guilty of violation of the law, and

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

Article 158
EVASION OF SERVICE OF SENTENCE ON THE OCCASION OF
DISORDERS, CONFLAGRATIONS, EARTHQUAKES OR OTHER
CALAMITIES

ELEMENTS :
a. That the offender is a convict by final judgement
who is confined in a penal institution.
 P a g e | 57

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

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.

c. That the offender fails to give himself up to the

authorities within 48 hours following the issuance of a
proclamation by the chief executive announcing the
passing away of such calamity.

The leaving from the penal establishment is not the basis

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

Offender must escape to be entitled to allowance

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

For such event to be considered as a calamity, the

President must declared it to be so. He must issue a
proclamation to the effect that the calamity is over. Even
if the events herein mentioned may be considered as
calamity, there is a need for the Chief Executive to make
such announcement. Absent such declaration. Even if
the prisoner will return to the penal institution where he
was confined, the same is of no moment as in the
 P a g e | 58

meantime he has committed a violation of the law, not

under the present article but for pure evasion of service of
sentence under Article 157.

Mutiny organized unlawful resistance to a superior

officer, a sedition, a revolt

The mutiny referred to in the second form of evasion of

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

Disarming the guards is not mutiny

Violation attributed to the accused is no longer referred to

the court for judicial inquiry or resolution. The law has
provided sufficient guidelines for the jail warden to follow.

This disquisition will not apply if the offender who escapes

taking advantage of the calamities enumerated herein is
apprehended by the authorities after 48 hours from the
declaration that the calamity is over. It is only extended to
one who returns but made inside the 48 hours delimited by
the proclamation. At this stage, the violation is not
substantive but administrative in nature.

COMMISSION OF ANOTHER CRIME

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

ELEMENTS
 P a g e | 59

a. That the offender was already convicted by final

judgement of one offense.

b. That he committed a new felony before beginning to

serve such sentence or while serving the same.

Quasi-recidivism : a person after having been convicted

by final judgement shall commit a new felony before
beginning to serve such sentence, or while serving the
same.

Second crimes must belong to the RPC, not special laws.

First crime may be either from the RPC or special laws

Reiteracion: offender shall have served out his sentence

for the prior offense

A quasi-recidivist may be pardoned at age 70. Except:

Unworthy or Habitual Delinquent

If new felony is evasion of sentence offender is not a

quasi-recidivist

Penalty: maximum period of the penalty for the new

felony should be imposed

Quasi-recidivism is a special aggravating circumstance

which directs the court to impose the maximum period of
the penalty prescribed by law for the new felony. The court
will do away or will ignore mitigating and aggravating
circumstances in considering the penalty to be imposed.
There will be no occasion for the court to consider imposing
the minimum, medium or maximum period of the penalty.
The mandate is absolute and is justified by the finding that
the accused is suffering from some degree of moral
perversity if not total incorrigibility. (People vs. Alicia, et al.,
95 SCRA 227)

Quasi-recidivism is an aggravating circumstance which

cannot be offset by any mitigating circumstance. To be
 P a g e | 60

appreciated as a special aggravating circumstance, it must

be alleged in the information. (People vs. Bautista, 65 SCRA
460)

Quasi-Recidivism may be offset by a special privileged

mitigating circumstance (ex. Minority)

TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST

Crimes against public interest

1. Counterfeiting the great seal of the Government of the

Philippines (Art. 161);

2. Using forged signature or counterfeiting seal or stamp

(Art. 162);

3. Making and importing and uttering false coins (Art.

163);

4. Mutilation of coins, importation and uttering of

mutilated coins (Art. 164);

5. Selling of false or mutilated coins, without connivance

(Art. 165);

6. Forging treasury or bank notes or other documents

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

7. Counterfeiting, importing and uttering instruments not

payable to bearer (Art. 167);

8. Illegal possession and use of forged treasury or bank

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

9. Falsification of legislative documents (Art. 170);

 P a g e | 61

10. Falsification by public officer, employee or notary (Art.

171);

11. Falsification by private individuals and use of falsified

documents (Art. 172);

12. Falsification of wireless, cable, telegraph and

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

13. False medical certificates, false certificates of merit or

service (Art. 174);

14. Using false certificates (Art. 175);

15. Manufacturing and possession of instruments or

implements for falsification (Art. 176);

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

17. Using fictitious name and concealing true name (Art.

178);

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

19. False testimony against a defendant (Art. 180);

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

21. False testimony in civil cases (Art. 182);

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

23. Offering false testimony in evidence (Art. 184);

24. Machinations in public auction (Art. 185);

25. Monopolies and combinations in restraint of trade (Art.

186);
 P a g e | 62

26. Importation and disposition of falsely marked articles or

merchandise made of gold, silver, or other precious
metals or their alloys (Art. 187);

27. Substituting and altering trade marks and trade names

or service marks (Art. 188);

28. Unfair competition and fraudulent registration of trade

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

The crimes in this title are in the nature of fraud or falsity to

the public. The essence of the crime under this title is that
which defraud the public in general. There is deceit
perpetrated upon the public. This is the act that is being
punished under this title.

Article 161
COUNTERFEITING GREAT SEAL OF GOVERNMENT

TYPES:
a. Forging the great seal of the Government

b. Forging the signature of the President

c. Forging the stamp of the President

When the signature of the President is forged, it is not

falsification but forging of signature under this article

Signature must be forged, others signed it not the

President.

Article 162
USING FORGED SIGNATURE OR COUNTERFEIT SEAL OR STAMP

ELEMENTS:
 P a g e | 63

a. That the great seal of the republic was counterfeited

or the signature or stamp of the chief executive was
forged by another person.

b. That the offender knew of the counterfeiting or

forgery.

c. That he used the counterfeit seal or forged signature

or stamp.

Offender is NOT the forger/not the cause of the

counterfeiting

Article 163
MAKING AND IMPORTING AND UTTERING FALSE COINS

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

b. That the offender either made, imported or uttered

such coins.

c. That in case of uttering such false or counterfeited

coins, he connives with counterfeiters or importers.

Coin is counterfeit if it is forged, or if it is not an article of

the government as legal tender, regardless if it is of no
value

Kinds of coins the counterfeiting of which is punished

1. Silver coins of the Philippines or coins of the Central

Bank of the Philippines;

2. Coins of the minor coinage of the Philippines or of the

Central Bank of the Philippines;

3. Coin of the currency of a foreign country.

 P a g e | 64

Counterfeiting imitation of legal or genuine coin (may

contain more silver, different design) such as to deceive
an ordinary person in believing it to be genuine

Utter to pass counterfeited coins, deliver or give away

Import to bring to port the same

Both Philippine and foreign state coins

Applies also to coins withdrawn from circulation

Essence of article: making of coins without authority

Acts punished

1. Mutilating coins of the legal currency, with the further

requirements that there be intent to damage or to
defraud another;

2. Importing or uttering such mutilated coins, with the

further requirement that there must be connivances
with the mutilator or importer in case of uttering.

The first acts of falsification or falsity are

(1) Counterfeiting refers to money or currency;

(2) Forgery refers to instruments of credit and obligations

and securities issued by the Philippine government or
any banking institution authorized by the Philippine
government to issue the same;

(3) Falsification can only be committed in respect of

documents.

In so far as coins in circulation are concerned, there are two

crimes that may be committed:
 P a g e | 65

(1) Counterfeiting coins -- This is the crime of remaking or

manufacturing without any authority to do so.

In the crime of counterfeiting, the law is not concerned with

the fraud upon the public such that even though the coin is
no longer legal tender, the act of imitating or
manufacturing the coin of the government is penalized. In
punishing the crime of counterfeiting, the law wants to
prevent people from trying their ingenuity in their imitation of
the manufacture of money.

(2) Mutilation of coins -- This refers to the deliberate act of

diminishing the proper metal contents of the coin either
by scraping, scratching or filling the edges of the coin
and the offender gathers the metal dust that has been
scraped from the coin.

Requisites of mutilation under the Revised Penal Code

(1) Coin mutilated is of legal tender;

(2) Offender gains from the precious metal dust

abstracted from the coin; and

(3) It has to be a coin.

There is no expertise involved here. In mutilation of coins

under the Revised Penal Code, the offender does nothing
but to scrape, pile or cut the coin and collect the dust
and, thus, diminishing the intrinsic value of the coin.

Mutilation of coins is a crime only if the coin mutilated is

legal tender. If it is not legal tender anymore, no one will
accept it, so nobody will be defrauded. But if the coin is of
legal tender, and the offender minimizes or decreases the
precious metal dust content of the coin, the crime of
mutilation is committed.
 P a g e | 66

The offender must deliberately reduce the precious metal in

the coin. Deliberate intent arises only when the offender
collects the precious metal dust from the mutilated coin. If
the offender does not collect such dust, intent to mutilate is
absent, but Presidential Decree No. 247 will apply.

Article 169
FORGERY

How forgery is committed:

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

b. by erasing, substituting, counterfeiting, altering by any

means the figures, letters or words, or signs contained
therein.

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

crime is frustrated

Forgery under the Revised Penal Code applies to papers,

which are in the form of obligations and securities issued by
the Philippine government as its own obligations, which is
given the same status as legal tender. Generally, the word
counterfeiting is not used when it comes to notes; what is
used is forgery. Counterfeiting refers to money, whether
coins or bills.

Notice that mere change on a document does not amount

to this crime. The essence of forgery is giving a document
the appearance of a true and genuine document. Not any
alteration of a letter, number, figure or design would
amount to forgery. At most, it would only be frustrated
forgery.
 P a g e | 67

When what is being counterfeited is obligation or securities,

which under the Revised Penal Code is given a status of
money or legal tender, the crime committed is forgery.

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

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

b. That he takes advantage of his official position.

c. That he falsifies a document by committing any of the

following acts:

1. Counterfeiting or imitating any handwriting, signature

or rubric.

Requisites:
i. That there be an intent to imitate, or an attempt
to imitate

ii. That the two signatures or handwritings, the

genuine and the forged, bear some
resemblance, to each other

(lack of similitude/imitation of a genuine

signature will not be a ground for conviction
under par. 1 but such is not an impediment to
conviction under par. 2)

2. Causing it to appear that persons have participated

in any act or proceeding when they did not in fact
so participate.

3. Attributing to persons who have participated in an

act or proceeding statements other than those in
fact made by them.
 P a g e | 68

Requisites:
i. That the offender caused it to appear in a
document that a person/s participated in an
act or a proceeding; and

ii. That such person/s did not in fact so participate

in the act or proceeding

4. Making untruthful statements in a narration of facts;

Requisites:
i. That the offender makes in a document
statements in a narration of facts

ii. That he has a legal obligation to disclose the

truth of the facts narrated by him; (required by
law to be done) and

iii. That the facts narrated by the offender are

absolutely false; and

iv. That the perversion or truth in the narration of

facts was made with the wrongful intent of
injuring a third person

There must be a narration of facts, not a

conclusion of law. Must be on a material matter

For one to be held criminally liable for falsification under

paragraph 4, the untruthful statement must be such as to
effect the integrity of the document or to change the
effects which it would otherwise produce.

Legal obligation means that there is a law

requiring the disclosure of the truth of the facts
narrated. Ex. Residence certificates

The person making the narration of facts must be

aware of the falsity of the facts narrated by him.
 P a g e | 69

This kind of falsification may be committed by

omission

5. Altering true dates.

date must be essential

For falsification to take place under this paragraph, the

date of the document must be material to the right created
or to the obligation that is extinguished.

6. Making any alteration or intercalation in a genuine

document which changes its meaning.

Requisites:
i. That there be an alteration (change) or
intercalation (insertion) on a document

ii. That it was made on a genuine document

iii. That the alteration/intercalation has changed

the meaning of the document

iv. That the change made the document speak

something false.

7. Issuing in an authenticated form a document

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

The acts of falsification mentioned in this paragraph are

committed by a public officer or by a notary public who
takes advantage of his official position as custodian of the
document. It can also refer to a public officer or notary who
prepared and retained a copy of the document. The
falsification can be done in two ways. It can be a
certification purporting to show that the document issued is
a copy of the original on record when no such original
 P a g e | 70

exists. It can also be in the form of a certification to the

effect that the document on file contains statements or
including in the copy issued, entries which are not found on
contrary to, or different from the original genuine document
on file.

8. Intercalating any instrument or note relative to the

issuance thereof in a protocol, registry, or official
book. (genuine document)

d. In case the offender is an ecclesiastical minister, the

act of falsification is committed with respect to any
record or document of such character that its
falsification may affect the civil status of persons.

There is no crime of attempted or frustrated falsification of

public document

Alteration or changes to make the document speak the

truth do not constitute falsification. (US vs. Mateo, 25 Phil.
324)

Persons liable public officer, employee or notary public

or ecclesiastical minister

Either he has duty to intervene in the preparation of the

document or it may be a situation wherein the public officer
has official custody of the document.

So even if the offender is a public officer, if her causes the

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

Document: Any written instrument which establishes a right

or by which an obligation is extinguished. A deed or
agreement executed by a person setting forth any
 P a g e | 71

disposition or condition wherein rights and obligations may

arise.

Writing may be on anything as long as it is a product of

the handwriting, it is considered a document.

Not necessary that what is falsified is a genuine or real

document, enough that it gives an appearance of a
genuine article

As long as any of the acts of falsification is committed,

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

Counterfeiting imitating any handwriting, signature or

rubric

Feigning simulating a signature, handwriting, or rubric

out of one of which does not in fact exist

It does not require that the writing be genuine. Even if the

writing was through and through false, if it appears to be
genuine, the crime of falsification is nevertheless committed.

There are four kinds of documents:

(1) Public document in the execution of which, a person in

authority or notary public has taken part;

(2) Official document in the execution of which a public

official takes part;

(3) Commercial document or any document recognized

by the Code of Commerce or any commercial law;
and

(4) Private document in the execution of which only

private individuals take part.
 P a g e | 72

Public document is broader than the term official

document. Before a document may be considered official,
it must first be a public document. But not all public
documents are official documents. To become an official
document, there must be a law which requires a public
officer to issue or to render such document. Example: A
cashier is required to issue an official receipt for the amount
he receives. The official receipt is a public document which
is an official document.

Liability of a private individual in falsification by a public

officer when there is conspiracy.

Under Republic Act 7975, when a public officer who holds a

position classified as Grade 27 or higher, commits a crime in
relation to the performance of his official functions, the case
against him will fall under the jurisdiction of the
Sandiganbayan. If a private person is included in the
accusation because of the existence of conspiracy in the
commission of the crime, the Sandiganbayan shall maintain
jurisdiction over the person of the co-accused,
notwithstanding the fact that said co-accused is a private
individual. If the public officer is found guilty, the same
liability and penalty shall be imposed on the private
individual. (U.S. vs. Ponce, 20 Phil. 379)

Article 178
USING FICTITIOUS NAME AND CONCEALING TRUE NAME

ELEMENTS (using fictitious name) :

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

b. That he uses that fictitious name publicly.

c. That the purpose of the offender is

1. To conceal a crime,
 P a g e | 73

2. To evade the execution of a judgment, or

3. To cause damage to public interest. (ex. Signing
fictitious name for a passport)

The name of a person is what appears in his birth certificate.

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

ELEMENTS (concealing true name):

a. that the offender conceals

1. his true name, and

2. all other personal circumstances.

b. that the purpose is only to conceal his identity.

What the offender does to violate or commit this act is for

him to conceal his true name and other personal
circumstances. His only motive in doing so is to conceal his
identity. In concealment of true name, the deception is
done momentarily, just enough to conceal the name of the
offender. In the use of fictitious name, the offender presents
himself before the public with another name.

A person under investigation by the police who gives a false

name and false personal circumstances, upon being
interrogated, is guilty of this crime.

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

No person shall use any name different from the one with
which he was registered at birth in the office of the local
civil registry, or with which he was registered in the bureau
of immigration upon entry; or such substitute name as may
have been authorized by a competent court.
 P a g e | 74

Exception: Pseudonym solely for literary, cinema, television,

radio, or other entertainment and in athletic events where
the use of pseudonym is a normally accepted practice.

Article 179
ILLEGAL USE OF UNIFORM OR INSIGNIA

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

b. That the insignia, uniform or dress pertains to an

office not held by the offender or to a class of
persons of which he is not a member.

c. That said insignia, uniform or dress is used publicly

and improperly.

The wearing of a uniform, or insignia of a non-existing office

or establishment is not a crime. It is necessary that the
uniform or insignia represents an office which carries
authority, respect, dignity, or influence which the public
looks up to.

So also, an exact imitation of a uniform or dress is

unnecessary; a colorable resemblance calculated to
deceive the common run of people is sufficient.

The wearing of insignia, badge or emblem of rank of the

members of the armed forced of the Philippines or
constabulary (now PNP) is punished by Republic Act No.
493.

When the uniform or insignia is used to emphasize the

pageantry of a play or drama or in moving picture films, the
crime is not committed.
 P a g e | 75

Three forms of false testimony

1. False testimony in criminal cases under Article 180 and

181;
2. False testimony in civil case under Article 182;
3. False testimony in other cases under Article 183.

False testimony, defined

It is the declaration under oath of a witness in a judicial
proceeding which is contrary to what is true, or to deny the
same, or to alter essentially the truth.

Nature of the crime of false testimony.

1. It cannot be committed through reckless imprudence
because false testimony requires criminal intent or intent
to violate the law is an essential element of the crime.

2. If the false testimony is due to honest mistake or error or

there was good faith in making the false testimony, no
crime is committed.

OFFENSES AGAINST DECENCY AND GOOD CUSTOMS

Article 200
GRAVE SCANDAL

ELEMENTS:
a. Offender performs an act

b. Act is highly scandalous as offending against

decency or good customs

c. Highly scandalous conduct does not expressly fall

within any other article of the RPC

d. Committed in a public place or within the public

knowledge or view. (The public view is not required, it
is sufficient if in public place. For public knowledge, it
 P a g e | 76

may occur even in a private place; the number of

people who sees it is not material).

Grave scandal: consists of acts which are offensive to

decency and good customs. They are committed
publicly and thus, give rise to public scandal to persons
who have accidentally witnessed the acts

The crime of grave scandal is a crime against public morals.

Necessarily, the offender must commit the crime in a public
place or within the view of the public.

In grave scandal, the scandal involved refers to moral

scandal offensive to decency, although it does not disturb
public peace. But such conduct or act must be open to the
public view.

In alarms and scandals, the scandal involved refers to

disturbances of the public tranquility and not to acts
offensive to decency.

Decency: means properly observing the requirements of

modesty, good taste etc

Customs: refers to established usage, social conventions

carried on by tradition and enforced by social
disapproval in case of violation

If the acts complained of are punishable under another

provision of the RPC, Art 200 is not applicable

Any act which is notoriously offensive to decency may bring

about criminal liability for the crime of grave scandal
provided such act does not constitute some other crime
under the Revised Penal Code. Grave scandal is a crime of
last resort.

The essence of grave scandal is publicity and that the

acts committed are not only contrary to morals and good
 P a g e | 77

customs but must likewise be of such character as to

cause public scandal to those witnessing it.

Distinction should be made as to the place where the

offensive act was committed, whether in the public place
or in a private place:

(1) In public place, the criminal liability arises irrespective of

whether the immoral act is open to the public view. In
short public view is not required.

(2) When act offensive to decency is done in a private

place, public view or public knowledge is required.

Public view does not require numerous persons. Even if

there was only one person who witnessed the offensive act
for as long as the third person was not an intruder, grave
scandal is committed provided the act does not fall under
any other crime in the Revised Penal Code.

Illustrations:

(1) A man and a woman enters a movie house which is a

public place and then goes to the darkest part of the
balcony and while there the man started performing
acts of lasciviousness on the woman.

If it is against the will of the woman, the crime would be

acts of lasciviousness. But if there is mutuality, this
constitutes grave scandal. Public view is not necessary
so long as it is performed in a public place.

(2) A man and a woman went to Luneta and slept there.

They covered themselves their blanket and made the
grass their conjugal bed.

This is grave scandal.

(3) In a certain apartment, a lady tenant had the habit of

undressing in her room without shutting the blinds. She
 P a g e | 78

does this every night at about eight in the evening. So

that at this hour of the night, you can expect people
outside gathered in front of her window looking at her
silhouette. She was charged of grave scandal. Her
defense was that she was doing it in her own house.

It is no defense that she is doing it in her private home.

It is still open to the public view.

(4) In a particular building in Makati which stands right next

to the house of a young lady who goes sunbathing in
her poolside. Every morning several men in the upper
floors would stick their heads out to get a full view of
said lady while in her two-piece swimsuit. The lady was
then charged with grave scandal. Her defense was
that it is her own private pool and it is those men
looking down at her who are malicious.

This is an act which even though done in a private

place is nonetheless open to public view.

Article 202
VAGRANTS AND PROSTITUTES:

Who are considered vagrants:

a. Those who have no apparent means of subsistence

and who have the physical ability to work yet
neglect to apply themselves to some useful calling

b. Persons found loitering around public and semi-

public places without visible means of support

c. Persons tramping or wandering around the country

or the streets with no visible means of support

d. Idle or dissolute persons lodging in houses of ill-fame

 P a g e | 79

e. Ruffians or pimps and those who habitually associate

with prostitutes (may include even the rich)

f. Persons found loitering in inhabited or uninhabited

places belonging to others, without any lawful or
justifiable reason provided the act does not fall within
any other article of the RPC

Who are considered prostitutes - refer to women who

habitually indulge in sexual intercourse or lascivious
conduct for money or profit (if a man indulges in the
same conduct: vagrancy)

In law the mere indulging in lascivious conduct habitually

because of money or gain would amount to prostitution,
even if there is no sexual intercourse. Virginity is not a
defense. Habituality is the controlling factor; it has to be
more than one time.

There cannot be prostitution by conspiracy. One who

conspires with a woman in the prostitution business like
pimps, taxi drivers or solicitors of clients are guilty of the
crime under Article 341 for white slavery.

TITLE SEVEN
CRIMES COMMITTED BY PUBLIC OFFICERS

Crimes committed by public officers

1. Knowingly rendering unjust judgment (Art. 204);

2. Judgment rendered through negligence (Art. 205);

 P a g e | 80

3. Unjust interlocutory order (Art. 206);

4. Malicious delay in the administration of justice (Art.

207);

5. Prosecution of offenses; negligence and tolerance (Art.

208);

6. Betrayal of trust by an attorney or solicitor Revelation

of secrets (Art. 209);

7. Direct bribery (Art. 210);

8. Indirect bribery (Art. 211);

9. Qualified bribery (Art. 211-A);

10. Corruption of public officials (Art. 212);

11. Frauds against the public treasury and similar offenses

(Art. 213);

12. Other frauds (Art. 214);

13. Prohibited transactions (Art. 215);

14. Possession of prohibited interest by a public officer (Art.

216);

15. Malversation of public funds or property Presumption

of malversation (Art. 217)

16. Failure of accountable officer to render accounts (Art.

218);

17. Failure of a responsible public officer to render

accounts before leaving the country (Art. 219);

18. Illegal use of public funds or property (Art. 220);

 P a g e | 81

19. Failure to make delivery of public funds or property (Art.

221);

20. Conniving with or consenting to evasion (Art. 223);

21. Evasion through negligence (Art. 224);

22. Escape of prisoner under the custody of a person not a

public officer (Art. 225);

23. Removal, concealment or destruction of documents

(Art. 226);

24. Officer breaking seal (Art. 227);

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

26. Revelation of secrets by an officer (Art. 229);

27. Public officer revealing secrets of private individual (Art.

230);

28. Open disobedience (Art. 231);

29. Disobedience to order of superior officer when said

order was suspended by inferior officer (Art. 232);

30. Refusal of assistance (Art. 233);

31. Refusal to discharge elective office (Art. 234);

32. Maltreatment of prisoners (Art. 235);

33. Anticipation of duties of a public office (Art. 236);

34. Prolonging performance of duties and powers (Art.

237);

35. Abandonment of office or position (Art. 238);

 P a g e | 82

36. Usurpation of legislative powers (Art. 239);

37. Usurpation of executive functions (Art. 240);

38. Usurpation of judicial functions (Art. 241);

39. Disobeying request for disqualification (Art. 242);

40. Orders or requests by executive officers to any judicial

authority (Art. 243);

41. Unlawful appointments (Art. 244); and

42. Abuses against chastity (Art. 245).

The designation of the title is misleading. Crimes under this

title can be committed by public officers or a non-public
officer, when the latter become a conspirator with a public
officer, or an accomplice, or accessory to the crime. The
public officer has to be the principal.

In some cases, it can even be committed by a private

citizen alone such as in Article 275 (infidelity in the custody
of a prisoner where the offender is not a public officer) or in
Article 222 (malversation).

Article 203
WHO ARE PUBLIC OFFICERS:
a. Takes part in the performance of public functions in
the Government, or

b. Performs public duties as an employee, agent or

subordinate official in the govt or any of its branches

Notes:
a. Public officer must derive his authority from:
1. direct provision of law
2. popular election
 P a g e | 83

3. appointment by competent authority

In defining the term public officers, the law makes the

reference to the manner by which he is appointed to public
office. He thus becomes a public officer because of his
appointment by competent authority or because he is
elected to public office.

b. Public officers: embraces every public servant from

the lowest to the highest rank

Under Republic Act No. 3019 (The Anti-Graft and Corrupt

Practices Act), the term public officer is broader and more
comprehensive because it includes all persons whether an
official or an employee, temporary or not, classified or not,
contractual or otherwise. Any person who receives
compensation for services rendered is a public officer.

c. A government laborer is not a public officer.

However, temporary performance by a laborer of
public functions makes him a public officer

Crimes committed by public officers are nothing but

corruption in public service.

Breach of oath of office partakes of three forms:

d. Misfeasance: means improper performance of an

act which might be properly be performed

e. Malfeasance: means performance of an act which

ought not to be done

f. Nonfeasance: means omission of an act which ought

to be done

Article 210
DIRECT BRIBERY
 P a g e | 84

ELEMENTS:
a. That the offender be a public officer within the scope
of Art 203

b. That the offender accepts an offer or promise or

receives a gift or present by himself or through
another

c. That such offer or promise be accepted or

gift/present received by the public officer (mere
agreement consummates the crime)

1. with a view to committing some crime (delivery of

consideration is not necessary) or

2. in consideration of an execution of an act which

does not constitute a crime, but the act must be
unjust (delivery of consideration is necessary), or

3. to refrain from doing something which is his official

duty to do

d. That the act which the offender agrees to perform or

which he executes be connected with the
performance of his official duties

Bribery refers to the act of the receiver and the act of the
giver is corruption of public official.

For purposes of this article, temporary performance of

public functions is sufficient to constitute a person a
public officer.

A private person may commit this crime only in the case

in which custody of prisoners is entrusted to him

Applicable also to assessors, arbitrators, appraisal and

claim commissioners, experts or any other person
performing public duties
 P a g e | 85

Cannot be frustrated, only attempted or consummated.

Direct bribery may be committed only in the attempted

and consummated stages because, in frustrated felony, the
offender must have performed all the acts of execution
which would produce the felony as a consequence. In
direct bribery, it is possible only if the corruptor concurs with
the offender. Once there is concurrence, the direct bribery
is already consummated. In short, the offender could not
have performed all the acts of execution to produce the
felony without consummating the same.

Actually, you cannot have a giver unless there is one who is

willing to receive and there cannot be a receiver unless
there is one willing to give. So this crime requires two to
commit. It cannot be said, therefore, that one has
performed all the acts of execution which would produce
the felony as a consequence but for reasons independent
of the will, the crime was not committed.

It is now settled, therefore, that the crime of bribery and

corruption of public officials cannot be committed in the
frustrated stage because this requires two to commit and
that means a meeting of the minds.

Illustrations:

(1) If the public official accepted the corrupt

consideration and turned it over to his superior as
evidence of the corruption, the offense is attempted
corruption only and not frustrated. The official did not
agree to be corrupted.

If the public officer did not report the same to his

superior and actually accepted it, he allowed himself
to be corrupted. The corruptor becomes liable for
consummated corruption of public official. The public
officer also becomes equally liable for consummated
bribery.
 P a g e | 86

(2) If a public official demanded something from a

taxpayer who pretended to agree and use marked
money with the knowledge of the police, the crime of
the public official is attempted bribery. The reason is
that because the giver has no intention to corrupt her
and therefore, he could not perform all the acts of
execution.

Be sure that what is involved is a crime of bribery, not

extortion. If it were extortion, the crime is not bribery,
but robbery. The one who yielded to the demand
does not commit corruption of a public officer because
it was involuntary.

Bribery exists when the gift is:

a. voluntarily offered by a private person

b. solicited by the public officer and voluntarily delivered

by the private person

c. solicited by the public officer but the private person

delivers it out of fear of the consequences should the
public officer perform his functions (here the crime by
giver is not corruption of public officials due to
involuntariness)

Actual receipt of the gift is not only if acts constitutes a

crime necessary. An accepted offer or promise of a gift is
sufficient. However, if the offer is not accepted, only the
person offering the gift is liable for attempted corruption
of a public officer

The gift must have a value or capable of pecuniary

estimation. It could be in the form of money, property or
services

If the act required of the public officer amounts to a

crime and he commits it, he shall be liable for the penalty
corresponding to the crime in addition to the penalty for
bribery
 P a g e | 87

In direct bribery, consider whether the official act, which the

public officer agreed to do, is a crime or not.

If it will amount to a crime, it is not necessary that the

corruptor should deliver the consideration or the doing of
the act. The moment there is a meeting of the minds, even
without the delivery of the consideration, even without the
public officer performing the act amounting to a crime,
bribery is already committed on the part of the public
officer. Corruption is already committed on the part of the
supposed giver. The reason is that the agreement is a
conspiracy involving the duty of a public officer. The mere
agreement is a felony already.

If the public officer commits the act which constitutes the

crime, he, as well as the corruptor shall be liable also for that
other crime.

Article 211
INDIRECT BRIBERY

ELEMENTS:
a. That the offender is a public officer.

b. That he accepts gifts.

c. That the said gifts are offered to him by reason of his

office.

The gift is given in anticipation of future favor from the

public officer
Indirect bribery, the public officer receives or accepts gifts,
money or anything of value by reason of his office. If there is
only a promise of a gift or money, no crime is committed
because of the language of the law which uses the phrase
shall accept gifts.

There must be clear intention on the part of the public

officer to take the gift offered and consider the property
 P a g e | 88

as his own for that moment. Mere physical receipt

unaccompanied by any other sign, circumstance or act
to show such acceptance is not sufficient to convict the
officer

The Supreme Court has laid down the rule that for indirect
bribery to be committed, the public officer must have
performed an act of appropriating of the gift for himself, his
family or employees. It is the act of appropriating that
signifies acceptance. Merely delivering the gift to the
public officer does not bring about the crime. Otherwise it
would be very easy to remove a public officer: just deliver a
gift to him.

There is no attempted or frustrated indirect bribery

The principal distinction between direct and indirect

bribery is that in the former, the officer agrees to perform
or refrain from doing an act in consideration of the gift or
promise. In the latter case, it is not necessary that the
officer do any act. It is sufficient that he accepts the gift
offered by reason of his office

Public officers receiving gifts and private persons giving

gifts on any occasion, including Christmas are liable
under PD 46.

The criminal penalty or imprisonment is distinct from the

administrative penalty of suspension from the service

Article 211-A
QUALIFIED BRIBERY

ELEMENTS:
a. Public officer entrusted with law enforcement

b. Refrains from arresting/prosecuting offender for crime

punishable by reclusion perpetua and/or death
 P a g e | 89

(if lower penalty than stated above, the crime is

direct bribery)

c. In consideration of any offer, promise or gift

Note that the penalty is DEATH if the public officer is the one
who asks or demands such present.

He need not receive the gift or present because a

mere offer or promise is sufficient.

Article 212
CORRUPTION OF PUBLIC OFFICIALS

ELEMENTS:
a. That the offender makes offers or promises or gives
gifts or present to a public officer.

b. That the offers or promises are made or the gifts or

presents given to a public officer, under
circumstances that will make the public officer liable
for direct bribery or indirect bribery

The offender is the giver of the gift or the offeror of the

promise. The act may or may not be accomplished

Presidential Decree No. 46

Presidential Decree No. 46 prohibits giving and acceptance

of gifts by a public officer or to a public officer, even during
anniversary, or when there is an occasion like Christmas,
New Year, or any gift-giving anniversary. The Presidential
Decree punishes both receiver and giver.

The prohibition giving and receiving gifts given by reason of

official position, regardless of whether or not the same is for
past or future favors.
 P a g e | 90

The giving of parties by reason of the promotion of a public

official is considered a crime even though it may call for a
celebration. The giving of a party is not limited to the public
officer only but also to any member of his family.

Presidential Decree No. 749

The decree grants immunity from prosecution to a private

person or public officer who shall voluntarily give information
and testify in a case of bribery or in a case involving a
violation of the Anti-graft and Corrupt Practices Act.

It provides immunity to the bribe-giver provided he does two

things:

(1) He voluntarily discloses the transaction he had with the

public officer constituting direct or indirect bribery, or
any other corrupt transaction;

(2) He must willingly testify against the public officer

involved in the case to be filed against the latter.

Before the bribe-giver may be dropped from the

information, he has to be charged first with the receiver.
Before trial, prosecutor may move for dropping bribe-giver
from information and be granted immunity. But first, five
conditions have to be met:

(1) Information must refer to consummated bribery;

(2) Information is necessary for the proper conviction of

the public officer involved;

(3) That the information or testimony to be given is not yet

in the possession of the government or known to the
government;

(4) That the information can be corroborated in its material

points;
 P a g e | 91

(5) That the informant has not been convicted previously

for any crime involving moral turpitude.

These conditions are analogous to the conditions under the

State Witness Rule under Criminal Procedure.

The immunity granted the bribe-giver is limited only to the

illegal transaction where the informant gave voluntarily the
testimony. If there were other transactions where the
informant also participated, he is not immune from
prosecution. The immunity in one transaction does not
extend to other transactions.

The immunity attaches only if the information given turns out

to be true and correct. If the same is false, the public officer
may even file criminal and civil actions against the
informant for perjury and the immunity under the decree will
not protect him.

Republic Act No. 7080 (Plunder)

Plunder is a crime defined and penalized under Republic

Act No. 7080, which became effective in 1991. This crime
somehow modified certain crimes in the Revised Penal
Code insofar as the overt acts by which a public officer
amasses, acquires, or accumulates ill-gotten wealth are
felonies under the Revised Penal Code like bribery (Articles
210, 211, 211-A), fraud against the public treasury [Article
213], other frauds (Article 214), malversation (Article 217),
when the ill-gotten wealth amounts to a total value of
P50,000,000.00. The amount was reduced from
P75,000,000.00 by Republic Act No. 7659 and the penalty
was changed from life imprisonment to reclusion perpetua
to death.

Short of the amount, plunder does not arise. Any amount

less than P50,000,000.00 is a violation of the Revised Penal
Code or the Anti-Graft and Corrupt Practices Act.
 P a g e | 92

Under the law on plunder, the prescriptive period is 20 years

commencing from the time of the last overt act.

Plunder is committed through a combination or series of

overt acts:

(1) Through misappropriation, conversion, misuse, or

malversation of public funds or raids on the public
treasury;

(2) By receiving, directly or indirectly, any commission, gift,

share, percentage, kickbacks or any other form of
pecuniary benefit from any person and/or entity in
connection with any government contract or project
by reason of the office or position of the public officer;

(3) By illegal or fraudulent conveyance or disposition of

asset belonging to the national government or any of
its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and
their subsidiaries;

(4) By obtaining, receiving, or accepting directly or

indirectly any shares of stock, equity or any other form
of interest or participation including the promise of
future employment in any business or undertaking;

(5) By establishing agricultural, industrial, or commercial

monopolies or other combinations and/or
implementations of decrees and orders intended to
benefit particular persons or special interests; or

(6) By taking undue advantage of official position,

authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino
people, and the Republic of the Philippines.
 P a g e | 93

While the crime appears to be malum prohibitum, Republic

Act No. 7080 provides that in the imposition of penalties,
the degree of participation and the attendance of
mitigating and aggravating circumstances shall be
considered by the court.

ANTI-GRAFT AND CORRUPT PRACTICES ACT

RA 3019

Persons Liable:

a. Any public officer who shall perform any of the following

acts:

1. Persuading, inducing or influencing another public

officer to perform an act constituting a violation of rules
and regulations duly promulgated by competent
authority or an offense in connection with the official
duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or
offense.

2. Directly or indirectly requesting or receiving any gift,

present, share, percentage, or benefit for himself or for
any other person in connection with any contract or
transaction between the government and any other
party wherein the public officer in his official capacity
has to intervene under the law.

3. Directly, or indirectly requesting or receiving any gift,

present, or other pecuniary or material benefit, for
himself or for another, from any person for whom the
public officer, in any manner of capacity, has secured
or obtained, or will secure or obtain, any Government
permit or license, in consideration for the held given or
to be given.

4. Accepting or having any member of his family accept

employment in a private enterprise which has pending
 P a g e | 94

official business with him during the pendency thereof

or within one year after its termination.

5. Causing any undue injury to any party, including the

Government, or giving any private party any
unwarranted benefits, advantage, or preference in the
discharge of his official, administrative or judicial
function through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.

6. Neglecting or refusing, after due demand or request,

without sufficient justification, to act within a
reasonable time on any matter pending before him for
the purpose of obtaining directly or indirectly, from any
person interested in the matter some pecuniary or
material benefit or advantage, or for the purpose of
favoring his own interest of giving undue advantage in
favor of or discriminating against any other interested
party.

7. Entering, on behalf of the Government, into any

contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the
public officer profited or will profit thereby.

8. Directly or indirectly having financial or pecuniary

interest in any business, contract or transaction in
connection with which he intervenes or take part in his
official capacity, or in which he is prohibited by the
constitution or by any law from having any interest.

9. Directly or indirectly becoming interested, for personal

gain, or having a material interest in any transaction or
act requiring the approval of a board, panel, or group
of which he is a member, and which exercises
discretion in such approval, even if he votes against the
 P a g e | 95

same or does not participate in the action of the

board, committee, panel or group.

10. Knowingly approving or granting any license,

permit, privilege, or benefit in favor of any person not
qualified for or not legally entitled to such license,
permit, privilege, or advantage, or of a mere
representative or dummy of one who is not so qualified
or entitled.

11. Divulging valuable information of a confidential

character, acquired by his office or by him on account
of his official position to unauthorized persons, or
releasing such information in advance of its authorized
release date.

b. Any person having family or close personal relation with

any public official who shall capitalize or exploit or take
advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present,
gift, or material, or pecuniary advantage from any person
having some business, transaction, application, request,
or contact with the government in which such public
official has to intervene (Sec. 4)

c. Any person who shall knowingly induce or cause any

public official to commit any of the offenses under (A).
(Sec. 4)

d. Spouse or any relative, by consanguinity or affinity, within

the 3rd civil degree, of the president of the Philippines, the
vice-president, the president of the Senate, or speaker of
the house of Representatives, who shall intervene, directly
or indirectly, in any business transaction, contract or
application with the govt (Sec. 5).

This prohibition shall not apply to:

1. Any person who, prior to the assumption of office of
any of the above officials to whom he is related, has
 P a g e | 96

been already dealing with the govt along the same

line of business;

2. Any transaction, contract or application already

existing or pending at the time of such assumption of
public office;

3. Any application filed by him, the approval of which is

not discretionary on the part of the official(s)
concerned but depends upon compliance with
requisites provided by law, or rules or regulations
issued pursuant to law;

4. Any act lawfully performed an official capacity or in

the exercise of a profession.

e. Any member of congress, during the term for which

he has been elected, who shall acquire or receive
any personal pecuniary interest in any specific
business enterprise which shall be directly and
particularly favored or benefited by any law or
resolution authored by him previously approved or
adopted by Congress during his term.

f. Any public officer who shall fail to file a true, detailed

and sworn statement of assets and liabilities within 30
days after assuming office and thereafter on or
before the 15th day of April following the close of
every calendar year, as well as upon the expiration
of his term of office, or upon his resignation or
separation from office (Sec. 7).

I. Prima Facie Evidence of and Dismissal due to

unexplained Wealth (Sec. 8)

If a public official has been found to have acquired

during his incumbency, whether in his name or in the
name of other persons, an amount of property and/or
money manifestly out of proportion to his salary and to his
other lawful income.
 P a g e | 97

Properties in the name of the spouse and dependents of

such public official may be taken into consideration,
when their acquisition through legitimate means cannot
be satisfactorily shown.

Bank deposits in the name of or manifestly excessive

expenditures incurred by the public official, his spouse or
any of their dependents including but not limited to
activities in any club or association or any ostentatious
display of wealth including frequent travel abroad of a
non-official character by any public official when such
activities entail expenses evidently out of proportion to
legitimate income.

INFIDELITY OF PUBLIC OFFICERS

Article 223
CONNIVING WITH OR CONSENTING TO EVASION

ELEMENTS:
a. That the offender is a public officer (on duty).

b. That he is charged with the conveyance or custody

of a prisoner, either detention prisoner or prisoner by
final judgment.

c. That such prisoner escaped from his custody

d. That he was in connivance with the prisoner in the

latters escape

Detention prisoner: refers to a person in legal custody,

arrested for and charged with some crime or public
offense

The release of a detention prisoner who could not be

delivered to judicial authorities within the time fixed by
law is not infidelity in the custody of a prisoner. Neither is
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mere leniency or laxity in the performance of duty

constitutive of infidelity

There is real and actual evasion of service of sentence

when the custodian permits the prisoner to obtain a
relaxation of his imprisonment

Article 224
EVASION THROUGH NEGLIGENCE

ELEMENTS:
a. That the offender is a public officer.

b. That he is charged with the conveyance or custody

of a prisoner, either detention prisoner or prisoner by
final judgment.

c. That such prisoner escapes through his negligence.

d. Penalty based on nature of imprisonment

The article punishes a definite laxity which amounts to

deliberate non-performance of a duty

Not every error is negligence under this article. To be liable,

the negligence must be notorious and apparent. The laxity
must be definite and must seriously suggest a deliberate
non-performance of a duty.

The negligence which is punishable however is not such

definite laxity at all but that which amounts to deliberate
non-performance of the jailer or the guard. So that if a
policemen on guard duty unlocked the door of the jail to let
a detention prisoner go out so he can clean the premises,
but on the latters third trip to a nearby faucet, he walked
behind the police headquarters climbed over the wall and
escape, the crime is not committed. (People vs. Solis, C.A.
43 O.G. 580).
 P a g e | 99

The fact that the public officer recaptured the prisoner

who had escaped from his custody does not afford
complete exculpation

The liability of an escaping prisoner:

a. if he is a prisoner by final judgment, he is liable for
evasion of service (art 157)
b. if he is a detention prisoner, he does not incur
criminal liability (unless cooperating with the
offender).

Article 225
ESCAPE OF PRISONERS UNDER THE CUSTODY OF A PERSON
NOT A PUBLIC OFFICER

ELEMENTS:
a. That the offender is a private person (note: must be
on duty)

b. That the conveyance or custody of a prisoner or

person under arrest is confined to him.

c. That the prisoner or person under arrest escapes.

d. That the offender consents to the escape of the

prisoner or person under arrest, or that the escape
takes place through his negligence

Note: This article is not applicable if a private person

made the arrest and he consented to the escape of the
person he arrested

The offender under this article is not the one who

arrested the escaping prisoner but one who agreed to have
the custody or charge of the prisoner or person under arrest.
TITLE EIGHT
CRIMES AGAINST PERSONS
 P a g e | 100

Crimes against persons

1. Parricide (Art. 246);

2. Murder (Art. 248);

3. Homicide (Art. 249);

4. Death caused in a tumultuous affray (Art. 251);

5. Physical injuries inflicted in a tumultuous affray (Art.

252);

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

7. Discharge of firearms (Art. 254);

8. Infanticide (Art. 255);

9. Intentional abortion (Art. 256);

10. Unintentional abortion (Art. 257);

11. Abortion practiced by the woman herself or by her

parents (Art. 258);

12. Abortion practiced by a physician or midwife and

dispensing of abortives (Art. 259);

13. Duel (Art. 260);

14. Challenging to a duel (Art. 261);

15. Mutilation (Art. 262);

16. Serious physical injuries (Art. 263);

17. Administering injurious substances or beverages (Art.

264);
 P a g e | 101

18. Less serious physical injuries (Art. 265);

19. Slight physical injuries and maltreatment (Art. 266); and

20. Rape (Art. 266-A).

DESTRUCTION OF LIFE

Article 246
PARRICIDE

ELEMENTS:
1. That a person is killed.

2. That the deceased is killed by the accused.

3. That the deceased is the father, mother, or child, whether

legitimate or illegitimate, or a legitimate other ascendant
or other descendant, or the legitimate spouse of the
accused.

Notes:
1. The relationship of the offender with the victim is the
essential element of the felony

The relationship must be in the direct line and not in the

collateral line.

The relationship between the offender and the offended

party must be legitimate, except when the offender and
the offended party are related as parent and child.

Except between husband and wife, the offender must be

related to the offended party by blood.

2. Parents and children are not included in the term

ascendants or descendants
 P a g e | 102

3. The other ascendant or descendant must be

legitimate. On the other hand, the father, mother or
child may be legitimate or illegitimate

If the offender and the offended party, although related by

blood and in the direct line, are separated by an
intervening illegitimate relationship, parricide can no longer
be committed. The illegitimate relationship between the
child and the parent renders all relatives after the child in
the direct line to be illegitimate too.

The only illegitimate relationship that can bring about

parricide is that between parents and illegitimate children
as the offender and the offended parties.

Illustration:

A is the parent of B, the illegitimate daughter. B married C

and they begot a legitimate child D. If D, daughter of B
and C, would kill A, the grandmother, the crime cannot be
parricide anymore because of the intervening illegitimacy.
The relationship between A and D is no longer legitimate.
Hence, the crime committed is homicide or murder.

A, an illegitimate son of B, who killed the legitimate father of

the latter, is not guilty of Parricide because in case of other
ascendants (grandparents, great grandparents, etc.), the
relationship with the killer must be legitimate. The same is
true with other descendants that is, grandchildren, great
grandchildren, etc.

4. The child should not be less than 3 days old. Otherwise,

the offense is infanticide

That the mother killed her child in order to conceal her

dishonor is not mitigating. This is immaterial to the crime of
parricide, unlike in the case of infanticide. If the child is less
than three days old when killed, the crime is infanticide and
intent to conceal her dishonor is considered mitigating.
 P a g e | 103

5. Relationship must be alleged

In killing a spouse, there must be a valid subsisting marriage

at the time of the killing. Also, the information should allege
the fact of such valid marriage between the accused and
the victim.

In a ruling by the Supreme Court, it was held that if the

information did not allege that the accused was legally
married to the victim, he could not be convicted of
parricide even if the marriage was established during the
trial. In such cases, relationship shall be appreciated as
generic aggravating circumstance.

The Supreme Court has also ruled that Muslim husbands with
several wives can be convicted of parricide only in case the
first wife is killed. There is no parricide if the other wives are
killed although their marriage is recognized as valid. This is
so because a Catholic man can commit the crime only
once. If a Muslim husband could commit this crime more
than once, in effect, he is being punished for the marriage
which the law itself authorized him to contract.

6. A stranger who cooperates in committing parricide is

liable for murder or homicide

Since parricide is a crime of relationship, if a stranger

conspired in the commission of the crime, he cannot be
held liable for parricide. His participation would make him
liable for murder or for homicide, as the case may be. The
rule of conspiracy that the act of one is the act of all does
not apply here because of the personal relationship of the
offender to the offended party.

Illustration:

A spouse of B conspires with C to kill B. C is the stranger in

the relationship. C killed B with treachery. The means
employed is made known to A and A agreed that the killing
will be done by poisoning.
 P a g e | 104

As far as A is concerned, the crime is based on his

relationship with B. It is therefore parricide. The treachery
that was employed in killing Bong will only be generic
aggravating circumstance in the crime of parricide
because this is not one crime that requires a qualifying
circumstance.

But that same treachery, insofar as C is concerned, as a

stranger who cooperated in the killing, makes the crime
murder; treachery becomes a qualifying circumstance.

7. Even if the offender did not know that the person he

had killed is his son, he is still liable for parricide because
the law does not require knowledge of the relationship

Article 365 expressly provides that parricide can be

committed through reckless imprudence. The penalty will
not be under Article 246 but under Article 365.

Similarly, parricide can be committed by mistake. This is

demonstrated in a situation where a person wanting to kill a
stranger, kills his own father by mistake. Although the crime
committed is parricide, the offender will not be punished
under Article 246 but under Article 49, which prescribes a
penalty much lower than that provided under Article 246.

Article 247
DEATH OR PHYSICAL INJURIES UNDER EXCEPTIONAL
CIRCUMSTANCES

Requisites:
1. A legally married person or parent surprises his spouse or
daughter (the latter must be under 18 and living with
them) in the act of committing sexual intercourse with
another person

2. He/she kills any or both of them or inflicts upon any or

both of them any serious physical injury in the act or
immediately thereafter
 P a g e | 105

3. He has not promoted or facilitated the prostitution of his

wife or daughter, or that he has not consented to the
infidelity of the other spouse.

Notes:
1. Article does not define or penalize a felony

Article 247, far from defining a felony merely grants a

privilege or benefit, more of an exempting circumstance as
the penalty is intended more for the protection of the
accused than a punishment. Death under exceptional
character can not be qualified by either aggravating or
mitigating circumstances.

If the accused fails to establish the circumstances called for

in Article 247, he/she will be guilty of Parricide and Murder or
Homicide if the victims were killed.

2. Not necessary that the parent be legitimate

3. Article applies only when the daughter is single

4. Surprise: means to come upon suddenly or

unexpectedly

5. Art 247 is applicable when the accused did not see his
spouse in the act sexual intercourse with another
person. However, it is enough that circumstances
reasonably show that the carnal act is being
committed or has been committed

It is not necessary that the spouse actually saw the sexual

intercourse being committed. It is enough that he/she
surprised them under such circumstances that no other
reasonable conclusion can be inferred but that a carnal
act was being performed or has just been committed.
 P a g e | 106

The article does not apply where the wife was not surprised
in flagrant adultery but was being abused by a man as in
this case there will be defense of relation.

If the offender surprised a couple in sexual intercourse, and

believing the woman to be his wife, killed them, this article
may be applied if the mistake of facts is proved.

The benefits of this article do not apply to the person who

consented to the infidelity of his spouse or who facilitated
the prostitution of his wife.

6. Sexual intercourse does not include preparatory acts

So if the surprising took place before any actual sexual

intercourse could be done because the parties are only in
their preliminaries, the article cannot be invoked anymore.

7. Immediately thereafter: means that the discovery,

escape, pursuit and the killing must all form parts of one
continuous act

The phrase immediately thereafter has been interpreted

to mean that between the surprising and the killing of the
inflicting of the physical injury, there should be no break of
time. In other words, it must be a continuous process.

If there was already a break of time between the sexual act

and the killing or inflicting of the injury, the law presupposes
that the offender regained his reason and therefore, the
article will not apply anymore.

8. The killing must be the direct by-product of the rage of

the accused

Article 247 does not provide that the victim is to be killed

instantly by the accused after surprising his spouse in the act
of intercourse. What is required is that the killing is the
proximate result of the outrage overwhelming the accused
upon the discovery of the infidelity of his spouse. The killing
 P a g e | 107

should have been actually motivated by the same blind

impulse.

9. No criminal liability is incurred when less serious or slight

physical injuries are inflicted. Moreover, in case third
persons caught in the crossfire suffer physical injuries,
the accused is not liable. The principle that one is liable
for the consequences of his felonious act is not
applicable because he is not committing a felony

In the case of People v. Abarca, 153 SCRA 735, two persons

suffered physical injuries as they were caught in the crossfire
when the accused shot the victim. A complex crime of
double frustrated murder was not committed as the
accused did not have the intent to kill the two victims.
Here, the accused did not commit murder when he fired at
the paramour of his wife. Inflicting death under exceptional
circumstances is not murder. The accused was held liable
for negligence under the first part, second paragraph of
Article 365, that is, less serious physical injuries through simple
negligence. No aberratio ictus because he was acting
lawfully.

A person who acts under Article 247 is not committing a

crime. Since this is merely an exempting circumstance, the
accused must first be charged with:

(1) Parricide if the spouse is killed;

(2) Murder or homicide depending on how the killing was

done insofar as the paramour or the mistress is
concerned;

(3) Homicide through simple negligence, if a third party is

killed;

(4) Physical injuries through reckless imprudence, if a third

party is injured.
If death results or the physical injuries are serious, there is
criminal liability although the penalty is only destierro. The
 P a g e | 108

banishment is intended more for the protection of the

offender rather than a penalty.

If the crime committed is less serious physical injuries or slight

physical injuries, there is no criminal liability.

Article 248
MURDER

ELEMENTS :
1. That a person was killed.

2. That the accused killed him.

3. That the killing was attended by any of the following

qualifying circumstances

a. with treachery, taking advantage of superior

strength, with the aid or armed men, or employing
means to weaken the defense or of means or
persons to insure or afford impunity

b. in consideration of price, reward or promise

c. by means of inundation, fire, poison, explosion,

shipwreck, stranding of vessel, derailment or assault
upon a street car or locomotive, fall of airship, by
means of motor vehicles or with the use of any other
means involving great waste or ruin

d. on occasion of any of the calamities enumerated in

the preceding paragraph, or of an earthquake,
eruption of a volcano, destructive cyclone, epidemic
or any other public calamity

e. with evident premeditation

 P a g e | 109

f. with cruelty, by deliberately and inhumanely

augmenting the suffering of the victim or outraging
or scoffing at his person or corpse

4. The killing is not parricide or infanticide.

Notes:

While the circumstance of by a band is not among those

enumerated that could qualify killing to murder, it would
seem that if the killers constituted a band, the crime is
murder because the circumstance of with the aid of
armed men is included in the qualifying circumstances.

1. The victim must be killed in order to consummate the

offense. Otherwise, it would be attempted or frustrated
murder

Killing a person with treachery is murder even if there is no

intent to kill. (People vs. Cagoco, 58 Phil. 530)

2. Any of the qualifying circumstances must be alleged in

the information. Otherwise, they will only be considered
as generic aggravating circumstances

When the other circumstances are absorbed or included in

one qualifying circumstance, they cannot be treated or
separated as generic aggravating circumstances. (People
vs. Remalante, 92 Phil. 48)

3. Treachery and premeditation are inherent in murder

with the use of poison

Ortega Notes:

In murder, any of the following qualifying circumstances is

present:
 P a g e | 110

(1) Treachery, taking advantage of superior strength, aid

or armed men, or employing means to waken the
defense, or of means or persons to insure or afford
impunity;

There is treachery when the offender commits any of

the crimes against the person employing means,
methods or forms in the execution thereof that tend
directly and especially to insure its execution without
risk to himself arising from the defense which the
offended party might make.

This circumstance involves means, methods, form in the

execution of the killing which may actually be an
aggravating circumstance also, in which case, the
treachery absorbs the same.

Illustration:

A person who is determined to kill resorted to the cover

of darkness at nighttime to insure the killing. Nocturnity
becomes a means that constitutes treachery and the
killing would be murder. But if the aggravating
circumstance of nocturnity is considered by itself, it is
not one of those which qualify a homicide to murder.
One might think the killing is homicide unless nocturnity
is considered as constituting treachery, in which case
the crime is murder.

The essence of treachery is that the offended party

was denied the chance to defend himself because of
the means, methods, form in executing the crime
deliberately adopted by the offender. It is a matter of
whether or not the offended party was denied the
chance of defending himself.

If the offended was denied the chance to defend

himself, treachery qualifies the killing to murder. If
despite the means resorted to by the offender, the
 P a g e | 111

offended was able to put up a defense, although

unsuccessful, treachery is not available. Instead, some
other circumstance may be present. Consider now
whether such other circumstance qualifies the killing or
not.

Illustration:

If the offender used superior strength and the victim

was denied the chance to defend himself, there is
treachery. The treachery must be alleged in the
information. But if the victim was able to put up an
unsuccessful resistance, there is no more treachery but
the use of superior strength can be alleged and it also
qualifies the killing to murder.

One attendant qualifying circumstance is enough. If

there are more than one qualifying circumstance
alleged in the information for murder, only one
circumstance will qualify the killing to murder and the
other circumstances will be taken as generic.

To be considered qualifying, the particular

circumstance must be alleged in the information. If
what was alleged was not proven and instead another
circumstance, not alleged, was established during the
trial, even if the latter constitutes a qualifying
circumstance under Article 248, the same can not
qualify the killing to murder. The accused can only be
convicted of homicide.

Generally, murder cannot be committed if at the

beginning, the offended had no intent to kill because
the qualifying circumstances must be resorted to with a
view of killing the offended party. So if the killing were
at the spur of the moment, even though the victim
was denied the chance to defend himself because of
the suddenness of the attack, the crime would only be
homicide. Treachery contemplates that the means,
methods and form in the execution were consciously
 P a g e | 112

adopted and deliberately resorted to by the offender,

and were not merely incidental to the killing.

If the offender may have not intended to kill the victim

but he only wanted to commit a crime against him in
the beginning, he will still be liable for murder if in the
manner of committing the felony there was treachery
and as a consequence thereof the victim died. This is
based on the rule that a person committing a felony
shall be liable for the consequences thereof although
different from that which he intended.

Illustration:

The accused, three young men, resented the fact that

the victim continued to visit a girl in their neighborhood
despite the warning they gave him. So one evening,
after the victim had visited the girl, they seized and tied
him to a tree, with both arms and legs around the tree.
They thought they would give him a lesson by whipping
him with branches of gumamela until the victim fell
unconscious. The accused left not knowing that the
victim died.

The crime committed was murder. The accused

deprived the victim of the chance to defend himself
when the latter was tied to a tree. Treachery is a
circumstance referring to the manner of committing
the crime. There was no risk to the accused arising
from the defense by the victim.

Although what was initially intended was physical injury,

the manner adopted by the accused was treacherous
and since the victim died as a consequence thereof,
the crime is murder -- although originally, there was no
intent to kill.

When the victim is already dead, intent to kill becomes

irrelevant. It is important only if the victim did not die to
 P a g e | 113

determine if the felony is physical injury or attempted or

frustrated homicide.

So long as the means, methods and form in the

execution is deliberately adopted, even if there was no
intent to kill, there is treachery.

(2) In consideration of price, reward or promises;

(3) Inundation, fire, poison, explosion, shipwreck, stranding

of a vessel, derailment or assault upon a street car or
locomotive, fall of an airship, by means of a motor
vehicle, or with the use of other means involving great
waste and ruin;

The only problem insofar as the killing by fire is

concerned is whether it would be arson with homicide,
or murder.

When a person is killed by fire, the primordial criminal

intent of the offender is considered. If the primordial
criminal intent of the offender is to kill and fire was only
used as a means to do so, the crime is only murder. If
the primordial criminal intent of the offender is to
destroy property with the use of pyrotechnics and
incidentally, somebody within the premises is killed, the
crime is arson with homicide. But this is not a complex
crime under Article 48. This is single indivisible crime
penalized under Article 326, which is death as a
consequence of arson. That somebody died during
such fire would not bring about murder because there
is no intent to kill in the mind of the offender. He
intended only to destroy property. However, a higher
penalty will be applied.

When killing was accomplished by means of fire alleged

in the information, it does not qualify killing to Murder unless
the use of fire was employed to kill the victim.
 P a g e | 114

In People v. Pugay and Samson, 167 SCRA 439, there

was a town fiesta and the two accused were at the
town plaza with their companions. All were
uproariously happy, apparently drenched with drink.
Then, the group saw the victim, a 25 year old retard
walking nearby and they made him dance by tickling
his sides with a piece of wood. The victim and the
accused Pugay were friends and, at times, slept in the
same place together. Having gotten bored with their
form of entertainment, accused Pugay went and got a
can of gasoline and poured it all over the retard. Then,
the accused Samson lit him up, making him a frenzied,
shrieking human torch. The retard died.

It was held that Pugay was guilty of homicide through

reckless imprudence. Samson only guilty of homicide,
with the mitigating circumstance of no intention to
commit so grave a wrong. There was no animosity
between the two accused and the victim such that it
cannot be said that they resort to fire to kill him. It was
merely a part of their fun making but because their
acts were felonious, they are criminally liable.

(4) On occasion of any of the calamities enumerated in

the preceding paragraph c, or an earthquake,
eruption of volcano, destructive cyclone, epidemic or
any other public calamity;

(5) Evident premeditation; and

When the actual victim turns out to be different from the

intended victim, premeditation is not aggravating. (People
vs. Guillen, 85 Phil. 307)

(6) Cruelty, by deliberately and inhumanly augmenting the

suffering of the victim, or outraging or scoffing at his
person or corpse.

Cruelty includes the situation where the victim is

already dead and yet, acts were committed which
 P a g e | 115

would decry or scoff the corpse of the victim. The

crime becomes murder.

Hence, this is not actually limited to cruelty. It goes

beyond that because even if the victim is already a
corpse when the acts deliberately augmenting the
wrong done to him were committed, the killing is still
qualified to murder although the acts done no longer
amount to cruelty.

Under Article 14, the generic aggravating

circumstance of cruelty requires that the victim be
alive, when the cruel wounds were inflicted and,
therefore, must be evidence to that effect. Yet, in
murder, aside from cruelty, any act that would amount
to scoffing or decrying the corpse of the victim will
qualify the killing to murder.

The following are holdings of the Supreme Court with

respect to the crime of murder:

(1) Killing of a child of tender age is murder qualified by

treachery because the weakness of the child due to his
tender age results in the absence of any danger to the
aggressor.

(2) Evident premeditation is absorbed in price, reward or

promise, if without the premeditation the inductor
would not have induced the other to commit the act
but not as regards the one induced.

(3 Abuse of superior strength is inherent in and

comprehended by the circumstance of treachery or
forms part of treachery.

(4) Treachery is inherent in poison.

(5) Where one of the accused, who were charged with

murder, was the wife of the deceased but here
 P a g e | 116

relationship to the deceased was not alleged in the

information, she also should be convicted of murder
but the relationship should be appreciated as
aggravating.

(6) Killing of the victims hit by hand grenade thrown at

them is murder qualified by explosion not by treachery.

(7) Where the accused housemaid gagged a three year

old boy, son of her master, with stockings, placed him in
a box with head down and legs upward and covered
the box with some sacks and other boxes, and the child
instantly died because of suffocation, and then the
accused demanded ransom from the parents, such did
not convert the offense into kidnapping with murder.
The accused was well aware that the child could be
suffocated to death in a few minutes after she left.
Ransom was only a part of the diabolical scheme to
murder the child, to conceal his body and then
demand money before discovery of the body.

The essence of kidnapping or serious illegal detention is the

actual confinement or restraint of the victim or deprivation
of his liberty. If there is no showing that the accused
intended to deprive their victims of their liberty for some
time and there being no appreciable interval between their
being taken and their being shot, murder and not
kidnapping with murder is committed.

Article 249
HOMICIDE

ELEMENTS:
1. That a person was killed.

2. That the accused killed him without any justifying

circumstances.

3. That the accused had the intention to kill, which is

presumed.
 P a g e | 117

4. That the killing was not attended by any of the qualifying

circumstances of murder, or by that of parricide or
infanticide.

Notes:
Homicide is the unlawful killing of a person not constituting
murder, parricide or infanticide.

1. Intent to kill is conclusively presumed when death

resulted. Hence, evidence of intent to kill is required
only in attempted or frustrated homicide

2. In all crimes against persons in which the death of the

victim is an element, there must be satisfactory
evidence of (1) the fact of death and (2) the identity of
the victim

Distinction between homicide and physical injuries:

In attempted or frustrated homicide, there is intent to kill.

In physical injuries, there is none. However, if as a result of

the physical injuries inflicted, the victim died, the crime will
be homicide because the law punishes the result, and not
the intent of the act.

The following are holdings of the Supreme Court with

respect to the crime of homicide:

(1) Physical injuries are included as one of the essential

elements of frustrated homicide.

(2) If the deceased received two wounds from two

persons acting independently of each other and the
wound inflicted by either could have caused death,
both of them are liable for the death of the victim and
each of them is guilty of homicide.
 P a g e | 118

(3) If the injuries were mortal but were only due to

negligence, the crime committed will be serious
physical injuries through reckless imprudence as the
element of intent to kill in frustrated homicide is
incompatible with negligence or imprudence.

(4) Where the intent to kill is not manifest, the crime

committed has been generally considered as physical
injuries and not attempted or frustrated murder or
homicide.

(5) When several assailants not acting in conspiracy

inflicted wounds on a victim but it cannot be
determined who inflicted which would which caused
the death of the victim, all are liable for the victims
death.

Note that while it is possible to have a crime of homicide

through reckless imprudence, it is not possible to have a
crime of frustrated homicide through reckless imprudence.

If a boxer killed his opponent in a boxing bout duly licensed

by the Government without any violation of the governing
rules and regulations, there is no Homicide to speak of. If he
hit his opponent below the belt without any intention to do
so, it is Homicide Through Reckless Imprudence if the latter
died as a result. If he intentionally hit his opponent on that
part of his body causing the death, the crime is Homicide.

The shooting of a peace officer who was fully aware of the

risks in pursuing the malefactors when done in a spur of the
moment is only Homicide. (People vs. Porras, 255 SCRA
514).

Common misconception on the meaning of corpus delicti.

Corpus delicti means body of the crime. It does not refer to

the body of the murdered person. In all crimes against
persons in which the death of the victim is an element of the
 P a g e | 119

crime, there must be proof of the fact of death and identity

of the victim. (Cortez vs. Court of Appeals, 162 SCRA 139)

Article 251
DEATH IN A TUMULTOUS AFFRAY

ELEMENTS:
1. That there be several persons.

2. That they did not compose groups organized for the

common purpose of assaulting and attacking each other
reciprocally.

3. That these several persons quarreled and assaulted one

another in a confused and tumultuous manner.

4. That someone was killed in the course of the affray.

5. That it cannot be ascertained who actually killed the

deceased.

6. That the person or persons who inflicted serious physical

injuries or who used violence can be identified.

Notes:
1. Tumultuous affray exists when at least 4 persons take
part in it

2. When there are 2 identified groups of men who

assaulted each other, there is no tumultuous affray

3. Persons liable are:

a. person/s who inflicted serious physical injuries

b. if it is not known who inflicted serious physical injuries

on the deceased, all persons who used violence
upon the person of the victim
 P a g e | 120

If those who actually killed the victim can be determined,

they will be the ones to be held liable, and those who
inflicted serious or less serious or slight physical injuries shall
be punished for said corresponding offenses provided no
conspiracy is established with the killers.

Tumultuous affray simply means a commotion in a

tumultuous and confused manner, to such an extent that it
would not be possible to identify who the killer is if death
results, or who inflicted the serious physical injury, but the
person or persons who used violence are known.

It is not a tumultuous affray which brings about the crime; it

is the inability to ascertain actual perpetrator. It is necessary
that the very person who caused the death can not be
known, not that he can not be identified. Because if he is
known but only his identity is not known, then he will be
charged for the crime of homicide or murder under a
fictitious name and not death in a tumultuous affray. If
there is a conspiracy, this crime is not committed.

To be considered death in a tumultuous affray, there must

be:

(1) a quarrel, a free-for-all, which should not involve

organized group; and

(2) someone who is injured or killed because of the fight.

The person killed in the affray need not be one of the

participants.

As long as it cannot be determined who killed the victim, all

of those persons who inflicted serious physical injuries will be
collectively answerable for the death of that fellow.

The Revised Penal Code sets priorities as to who may be

liable for the death or physical injury in tumultuous affray:
 P a g e | 121

(1) The persons who inflicted serious physical injury upon

the victim;

(2) If they could not be known, then anyone who may

have employed violence on that person will answer for
his death.

(3) If nobody could still be traced to have employed

violence upon the victim, nobody will answer. The
crimes committed might be disturbance of public
order, or if participants are armed, it could be
tumultuous disturbance, or if property was destroyed, it
could be malicious mischief.

Article 253
GIVING ASSISTANCE TO SUICIDE

Acts punishable:
1. Assisting another to commit suicide, whether the
suicide is consummated or not

2. Lending his assistance to another to commit suicide to

the extent of doing the killing himself

Notes:
Giving assistance to suicide means giving means (arms,
poison, etc.) or whatever manner of positive and direct
cooperation (intellectual aid, suggestions regarding the
mode of committing suicide, etc.).

1. A person who attempts to commit suicide is not

criminally liable

In this crime, the intention must be for the person who is

asking the assistance of another to commit suicide.
 P a g e | 122

If the intention is not to commit suicide, as when he just

wanted to have a picture taken of him to impress upon the
world that he is committing suicide because he is not
satisfied with the government, the crime is held to be
inciting to sedition.

He becomes a co-conspirator in the crime of inciting to

sedition, but not of giving assistance to suicide because the
assistance must be given to one who is really determined to
commit suicide.

2. A pregnant woman who tried to commit suicide by

means of poison but instead of dying, the fetus in her
womb was expelled, is not liable for abortion

3. Assistance to suicide is different from mercy-killing.

Euthanasia/mercy-killing is the practice of painlessly
putting to death a person suffering from some
incurable disease. In this case, the person does not
want to die. A doctor who resorts to euthanasia may
be held liable for murder

If the person does the killing himself, the penalty is similar to

that of homicide, which is reclusion temporal. There can be
no qualifying circumstance because the determination to
die must come from the victim. This does not contemplate
euthanasia or mercy killing where the crime is murder, if
without consent; if with consent, covered by Article 253.

In mercy killing, the victim is not in a position to commit

suicide. Whoever would heed his advice is not really giving
assistance to suicide but doing the killing himself. In giving
assistance to suicide, the principal actor is the person
committing the suicide.

Both in euthanasia and suicide, the intention to the end life

comes from the victim himself; otherwise the article does
not apply. The victim must persistently induce the offender
to end his life.
 P a g e | 123

4. Penalty is mitigated if suicide is not successful

Even if the suicide did not materialize, the person giving

assistance to suicide is also liable but the penalty shall be
one or two degrees lower depending on whether it is
frustrated or attempted suicide.

The following are holdings of the Supreme Court with

respect to this crime:

(1) The crime is frustrated if the offender gives the

assistance by doing the killing himself as firing upon the
head of the victim but who did not die due to medical
assistance.

(2) The person attempting to commit suicide is not liable if

he survives. The accused is liable if he kills the victim, his
sweetheart, because of a suicide pact.

Article 254
DISCHARGE OF FIREARMS

ELEMENTS:
1. that the offender discharges a firearm against or at
another person.

2. That the offender has no intention to kill that person.

Notes:

This crime cannot be committed through imprudence

because it requires that the discharge must be directed at
another.
1. The offender must shoot at another with any firearm
without intention of killing him. If the firearm is not
discharged at a person, the act is not punished under
this article
 P a g e | 124

If the firearm is directed at a person and the trigger was

pressed but did not fire, the crime is frustrated discharge of
firearm.

If the discharge is not directed at a person, the crime may

constitute alarm and scandal.

2. A discharge towards the house of the victim is not

discharge of firearm. On the other hand, firing a gun
against the house of the offended party at random,
not knowing in what part of the house the people
were, it is only alarm under art 155.

3. Usually, the purpose of the offender is only to intimidate

or frighten the offended party

4. Intent to kill is negated by the fact that the distance

between the victim and the offender is 200 yards

5. A person can be held liable for discharge even if the

gun was not pointed at the offended party when it
fired for as long as it was initially aimed at or against the
offended party

The following are holdings of the Supreme Court with

respect to this crime:

(1) If serious physical injuries resulted from discharge, the

crime committed is the complex crime of serious
physical injury with illegal discharge of firearm, or if less
serious physical injury, the complex crime of less serious
physical injury with illegal discharge of firearm will
apply.

(2) Firing a gun at a person even if merely to frighten him

constitutes illegal discharge of firearm.

The gun used in the crime must be licensed, or the person

using the firearm must be authorized to carry the same,
otherwise, in addition to the crime punished under this
 P a g e | 125

article, accused may also be held liable for illegal

possession of firearm under Republic Act No. 1866 as
amended by Republic Act No. 8294.

Article 255
INFANTICIDE

ELEMENTS:
1. That a child was killed.

2. That the deceased child was less than three days (72
hours) of age.

3. That the accused killed the said child.

Notes:
1. When the offender is the father, mother or legitimate
ascendant, he shall suffer the penalty prescribed for
parricide. If the offender is any other person, the
penalty is that for murder. In either case, the proper
qualification for the offense is infanticide

Even if the killer is the mother or the father or the legitimate

grandparents, the crime is still Infanticide and not Parricide.
The penalty however, is that for Parricide.

Illustration:

An unmarried woman, A, gave birth to a child, B. To

conceal her dishonor, A conspired with C to dispose of the
child. C agreed and killed the child B by burying the child
somewhere.

If the child was killed when the age of the child was three
days old and above already, the crime of A is parricide.
The fact that the killing was done to conceal her dishonor
will not mitigate the criminal liability anymore because
concealment of dishonor in killing the child is not mitigating
in parricide.
 P a g e | 126

If the crime committed by A is parricide because the age of

the child is three days old or above, the crime of the co-
conspirator C is murder. It is not parricide because he is not
related to the victim.

If the child is less than three days old when killed, both the
mother and the stranger commits infanticide because
infanticide is not predicated on the relation of the offender
to the offended party but on the age of the child. In such a
case, concealment of dishonor as a motive for the mother
to have the child killed is mitigating.

2. When infanticide is committed by the mother or

maternal grandmother in order to conceal the
dishonor, such fact is only mitigating

3. The delinquent mother who claims that she committed

the offense to conceal the dishonor must be of good
reputation. Hence, if she is a prostitute, she is not
entitled to a lesser penalty because she has no honor
to conceal

Concealment of dishonor is not an element of infanticide. It

merely lowers the penalty. If the child is abandoned without
any intent to kill and death results as a consequence, the
crime committed is not infanticide but abandonment under
Article 276.

If the purpose of the mother is to conceal her dishonor,

infanticide through imprudence is not committed because
the purpose of concealing the dishonor is incompatible with
the absence of malice in culpable felonies.

4. There is no infanticide when the child was born dead,

or although born alive it could not sustain an
independent life when it was killed

In our study of persons and family relations, we have

learned that birth determines personality. So fetus becomes
 P a g e | 127

a person by the legal fact of birth. The Civil Code provides

that, if the fetus had an intra-uterine life of less than seven
(7) months, it will be considered born only if it survives 24
hours after the umbilical cord is cut. If such fetus is killed
within the 24-hour period, we have to determine if it would
have survived or it would have died nonetheless, had it not
been killed.

A legal problem occurs when a fetus having an intra-uterine

life of less than 7 months, born alive, is killed within 24 hours
from the time the umbilical cord is cut. This is so because
there is difficulty of determining whether the crime
committed is infanticide or abortion. In such a situation, the
court may avail of expert testimony in order to help it arrive
at a conclusion. So, if it is shown that the infant cannot
survive within 24 hours, the crime committed is abortion;
otherwise if it can survive, the crime would be infanticide.

Article 256
INTENTIONAL ABORTION

ELEMENTS:
1. That there is a pregnant woman.

2. That violence is exerted, or drugs or beverages

administered, or that the accused otherwise acts upon
such pregnant woman.

3. That as a result of the use of violence or drugs or

beverages upon her, or any other act of the accused,
the fetus dies, either in the womb or after having been
expelled therefrom.

4. That the abortion is intended.

Ortega Notes:
Acts punished
 P a g e | 128

1. Using any violence upon the person of the pregnant

woman;

2. Acting, but without using violence, without the consent

of the woman. (By administering drugs or beverages
upon such pregnant woman without her consent.)

3. Acting (by administering drugs or beverages), with the

consent of the pregnant woman.

Abortion is the violent expulsion of a fetus from the maternal

womb. If the fetus has been delivered but it could not
subsist by itself, it is still a fetus and not a person. Thus, if it is
killed, the crime committed is abortion not infanticide.

Distinction between infanticide and abortion

It is infanticide if the victim is already a person less that three

days old or 72 hours and is viable or capable of living
separately from the mothers womb.

It is abortion if the victim is not viable but remains to be a

fetus.

Abortion is not a crime against the woman but against the

fetus. If mother as a consequence of abortion suffers death
or physical injuries, you have a complex crime of murder or
physical injuries and abortion.

In intentional abortion, the offender must know of the

pregnancy because the particular criminal intention is to
cause an abortion. Therefore, the offender must have
known of the pregnancy for otherwise, he would not try an
abortion.

If the woman turns out not to be pregnant and someone

performs an abortion upon her, he is liable for an impossible
crime if the woman suffers no physical injury. If she does, the
crime will be homicide, serious physical injuries, etc.
 P a g e | 129

Under the Article 40 of the Civil Code, birth determines

personality. A person is considered born at the time when
the umbilical cord is cut. He then acquires a personality
separate from the mother.

But even though the umbilical cord has been cut, Article 41
of the Civil Code provides that if the fetus had an intra-
uterine life of less than seven months, it must survive at least
24 hours after the umbilical cord is cut for it to be
considered born.

Illustration:

A mother delivered an offspring which had an intra-uterine

life of seven months. Before the umbilical cord is cut, the
child was killed.

If it could be shown that had the umbilical cord been cut,

that child, if not killed, would have survived beyond 24
hours, the crime is infanticide because that conceived child
is already considered born.

If it could be shown that the child, if not killed, would not

have survived beyond 24 hours, the crime is abortion
because what was killed was a fetus only.

In abortion, the concealment of dishonor as a motive of the

mother to commit the abortion upon herself is mitigating. It
will also mitigate the liability of the maternal grandparent of
the victim the mother of the pregnant woman if the
abortion was done with the consent of the pregnant
woman.

If the abortion was done by the mother of the pregnant

woman without the consent of the woman herself, even if it
was done to conceal dishonor, that circumstance will not
mitigate her criminal liability.

But if those who performed the abortion are the parents of

the pregnant woman, or either of them, and the pregnant
 P a g e | 130

woman consented for the purpose of concealing her

dishonor, the penalty is the same as that imposed upon the
woman who practiced the abortion upon herself .

Frustrated abortion is committed if the fetus that is expelled

is viable and, therefore, not dead as abortion did not result
despite the employment of adequate and sufficient means
to make the pregnant woman abort. If the means are not
sufficient or adequate, the crime would be an impossible
crime of abortion. In consummated abortion, the fetus must
be dead.

One who persuades her sister to abort is a co-principal, and

one who looks for a physician to make his sweetheart abort
is an accomplice. The physician will be punished under
Article 259 of the Revised Penal Code.

Article 257
UNINTENTIONAL ABORTION

ELEMENTS:
1. That there is a pregnant woman.

2. That violence is used upon such pregnant woman without

intending an abortion.

3. That the violence is intentionally exerted.

4. That as a result of the violence that fetus dies, either in the

womb or after having been expelled therefrom.

Notes:

Unintentional abortion requires physical violence inflicted

deliberately and voluntarily by a third person upon the
person of the pregnant woman. Mere intimidation is not
enough unless the degree of intimidation already
approximates violence.
 P a g e | 131

If the pregnant woman aborted because of intimidation,

the crime committed is not unintentional abortion because
there is no violence; the crime committed is light threats.

If the pregnant woman was killed by violence by her

husband, the crime committed is the complex crime of
parricide with unlawful abortion.

While there is no intention on the part of the accused to

cause an abortion, nonetheless, the violence that he
employs on the pregnant woman must be intentional. In
other words, only the abortion is unintended.

1. Unintentional abortion can also be committed through

negligence

Unintentional abortion may be committed through

negligence as it is enough that the use of violence be
voluntary.

Illustration:

A quarrel ensued between A, husband, and B, wife. A

became so angry that he struck B, who was then pregnant,
with a soft drink bottle on the hip. Abortion resulted and B
died.

Take note that while unintentional abortion appears to be a

crime that should be committed with deliberate intent
because of the requirement that the violence employed on
the victim must be intentional, nevertheless, if the
circumstances of the case justifies the application of the
other means of committing a felony (like culpa), then the
same should be applied but the penalty will not be the
penalty provided under Article 257. Instead, the offender
shall be subject to the penalty prescribed for simple or
reckless imprudence under Article 365.

2. The accused can only be held liable if he knew that

the woman was pregnant
 P a g e | 132

- DEBATABLE
In US v. Jeffry, 15 Phil. 391, the Supreme Court said that
knowledge of pregnancy of the offended party is not
necessary. In People v. Carnaso, decided on April 7, 1964,
however, the Supreme Court held that knowledge of
pregnancy is required in unintentional abortion.

Criticism:

Under Article 4, paragraph 1 of the Revised Penal Code,

any person committing a felony is criminally liable for all the
direct, natural, and logical consequences of his felonious
acts although it may be different from that which is
intended. The act of employing violence or physical force
upon the woman is already a felony. It is not material if
offender knew about the woman being pregnant or not.

If the act of violence is not felonious, that is, act of self-

defense, and there is no knowledge of the womans
pregnancy, there is no liability. If the act of violence is not
felonious, but there is knowledge of the womans
pregnancy, the offender is liable for unintentional abortion.

Illustration:

The act of pushing another causing her to fall is a felonious

act and could result in physical injuries. Correspondingly, if
not only physical injuries were sustained but abortion also
resulted, the felonious act of pushing is the proximate cause
of the unintentional abortion.

3. If there is no intention to cause abortion and neither

was violence exerted, arts 256 and 257 does not appl

Article 260
RESPONSIBILITY OF PARTICIPANTS IN A DUEL

Acts punished:
1. Killing ones adversary in a duel
 P a g e | 133

2. Inflicting upon the adversary serious physical injuries

3. Making a combat although no physical injuries have

been inflicted

Persons liable:
1. Principals person who killed or inflicted physical injuries
upon his adversary, or both combatants in any other
cases

2. Accomplices as seconds

The person who killed or injured his adversary. If both survive,

both will be liable for the crime of duel as principals by
direct participation. The seconds will be held liable as
accomplices.

Notes:
1. Duel: a formal or regular combat previously concerted
between 2 parties in the presence of 2 or more seconds
of lawful age on each side, who make the selection of
arms and fix all the other conditions of the fight

2. If death results, the penalty is the same as that for

homicide

While the agreement is to fight to the death, the law will

disregard the intent to kill, if only physical injuries is
inflicted. The crime will not be classified as attempted or
frustrated homicide.

If the accused and the deceased, after a verbal heated

argument in a bar, left the place at the same time and
pursuant to their agreement, went to the plaza to fight
each other to death with knives which they bought on the
way, the facts do not constitute the crime of dueling since
there were no seconds who fixed the conditions of the fight
in a more or less formal manner. If one was killed, the crime
committed would be Homicide.
 P a g e | 134

There is no such crime nowadays because people hit each

other even without entering into any pre-conceived
agreement. This is an obsolete provision.

Article 261
CHALLENGING TO A DUEL

Acts punishable:
1. Challenging another to a duel

2. Inciting another to give or accept a challenge to a

duel

3. Scoffing at or decrying another publicly for having

refused to accept a challenge to fight a duel

Persons liable:
1. Challenger

2. Instigators

If the challenge is only to fight, without the challenger

having in mind a formal combat to be agreed upon with
the assistance of seconds as contemplated under the law,
the crime committed will only be grave or light threat as the
case may be.

Illustration:

If one challenges another to a duel by shouting Come

down, Olympia, let us measure your prowess. We will see
whose intestines will come out. You are a coward if you do
not come down, the crime of challenging to a duel is not
committed. What is committed is the crime of light threats
under Article 285, paragraph 1 of the Revised Penal Code.

PHYSICAL INJURIES
 P a g e | 135

Article 262
MUTILATION

Kinds of Mutilation

1. Intentionally mutilating another by depriving him, totally

or partially, of some essential organ for reproduction

2. Intentionally making another mutilation, i.e. lopping,

clipping off any part of the body of the offended party,
other than the essential organ for reproduction, to
deprive him of that part of the body

Elements:
1. There be a castration i.e. mutilation of organs
necessary for generation

2. Mutilation is caused purposely and deliberately

Notes:

Mutilation is the lopping or clipping off of some part of the

body.

The intent to deliberately cut off the particular part of the

body that was removed from the offended party must be
established. If there is no intent to deprive victim of
particular part of body, the crime is only serious physical
injury.

The common mistake is to associate this with the

reproductive organs only. Mutilation includes any part of
the human body that is not susceptible to grow again.

If what was cut off was a reproductive organ, the penalty is

much higher than that for homicide.

This cannot be committed through criminal negligence.

 P a g e | 136

1. In the first kind of mutilation, the castration must be

made purposely. Otherwise, it will be considered as
mutilation of the second kind

2. Mayhem: refers to any other intentional mutilation

Article 263
SERIOUS PHYSICAL INJURIES

How Committed
1. Wounding

2. Beating

3. Assaulting

4. Administering injurious substances

In one case, the accused, while conversing with the

offended party, drew the latters bolo from its scabbard.
The offended party caught hold of the edge of the blade of
his bolo and wounded himself. It was held that since the
accused did not wound, beat or assault the offended party,
he can not be guilty of serious physical injuries.

What are serious physical injuries:

1. Injured person becomes insane, imbecile, impotent or

blind

2. Injured person

a. loses the use of speech or the power to hear or to

smell, loses an eye, a hand, foot, arm or leg

b. loses the use of any such member

c. becomes incapacitated for the work in which he

had been habitually engaged
 P a g e | 137

3. Injured person

a. becomes deformed

b. loses any other member of his body

c. loses the use thereof

d. becomes ill or incapacitated for the performance of

the work in which he had been habitually engaged
in for more than 90 days

4.Injured person becomes ill or incapacitated for labor for

more than 30 days (but not more than 90 days)

Notes:

The crime of physical injuries is a crime of result because

under our laws the crime of physical injuries is based on the
gravity of the injury sustained. So this crime is always
consummated.

The reason why there is no attempted or frustrated physical

injuries is because the crime of physical injuries is
determined on the gravity of the injury. As long as the injury
is not there, there can be no attempted or frustrated stage
thereof.

1. Serious physical injuries may be committed through

reckless imprudence or simple imprudence

2. There must be no intent to kill

3. Impotent should include inability to copulate and

sterility

4. Blindness requires lost of vision in both eyes. Mere

weakness in vision is not contemplated
 P a g e | 138

5. Loss of power to hear must involve both ears.

Otherwise, it will be considered as serious physical
injuries under par 3

6. Loss of use of hand or incapacity of usual work in par 2

must be permanent

7. Par 2 refers to principal members of the body. Par 3 on

the other hand, covers any other member which is not
a principal part of the body. In this respect, a front
tooth is considered as a member of the body, other
than a principal member

8. Deformity: means physical ugliness, permanent and

definite abnormality. Not curable by natural means or
by nature. It must be conspicuous and visible. Thus, if
the scar is usually covered by a dress, it would not be
conspicuous and visible

9. The loss of 3 incisors is a visible deformity. Loss of one

incisor is not. However, loss of one tooth which impaired
appearance is a deformity

10. Deformity by loss of teeth refers to injury which

cannot be impaired by the action of the nature

11. Loss of both outer ears constitutes deformity and

also loss of the power to hear. Meanwhile, loss of the
lobule of the ear is only a deformity

12. Loss of the index and middle fingers is either a

deformity or loss of a member, not a principal one of his
body or use of the same

13. Loss of the power to hear in the right ear is

considered as merely loss of use of some other part of
the body

14. If the injury would require medical attendance for

more than 30 days, the illness of the offended party
 P a g e | 139

may be considered as lasting more than 30 days. The

fact that there was medical attendance for that period
of time shows that the injuries were not cured for that
length of time
15. Under par 4, all that is required is illness or
incapacity, not medical attendance

16. In determining incapacity, the injured party must

have an avocation at the time of the injury. Work:
includes studies or preparation for a profession

17. When the category of the offense of serious

physical injuries depends on the period of the illness or
incapacity for labor, there must be evidence of the
length of that period. Otherwise, the offense will only
be considered as slight physical injuries

18. There is no incapacity if the injured party could still

engage in his work although less effectively than
before

19. Serious physical injuries is qualified when the crime

is committed against the same persons enumerated in
the article on parricide or when it is attended by any of
the circumstances defining the crime of murder.
However, serious physical injuries resulting from
excessive chastisement by parents is not qualified
serious physical injuries

Ortega Notes:

Classification of physical injuries:

(1) Between slight physical injuries and less serious physical

injuries, you have a duration of one to nine days if slight
physical injuries; or 10 days to 20 days if less serious
physical injuries. Consider the duration of healing and
treatment.
 P a g e | 140

The significant part here is between slight physical

injuries and less serious physical injuries. You will
consider not only the healing duration of the injury but
also the medical attendance required to treat the
injury. So the healing duration may be one to nine
days, but if the medical treatment continues beyond
nine days, the physical injuries would already qualify as
less serious physical injuries. The medical treatment
may have lasted for nine days, but if the offended
party is still incapacitated for labor beyond nine days,
the physical injuries are already considered less serious
physical injuries.

(2) Between less serious physical injuries and serious

physical injuries, you do not consider the period of
medical treatment. You only consider the period when
the offended party is rendered incapacitated for labor.

If the offended party is incapacitated to work for less

than 30 days, even though the treatment continued
beyond 30 days, the physical injuries are only
considered less serious because for purposes of
classifying the physical injuries as serious, you do not
consider the period of medical treatment. You only
consider the period of incapacity from work.

(3) When the injury created a deformity upon the

offended party, you disregard the healing duration or
the period of medical treatment involved. At once, it is
considered serious physical injuries.

So even though the deformity may not have

incapacitated the offended party from work, or even
though the medical treatment did not go beyond nine
days, that deformity will bring about the crime of
serious physical injuries.

Deformity requires the concurrence of the following

conditions:
 P a g e | 141

(1) The injury must produce ugliness;

(2) It must be visible;

(3) The ugliness will not disappear through natural

healing process.

Illustration:

Loss of molar tooth This is not deformity as it is not

visible.

Loss of permanent front tooth This is deformity as it is

visible and permanent.
Loss of milk front tooth This is not deformity as it is
visible but will be naturally replaced.

Article 265
LESS SERIOUS PHYSICAL INJURIES

ELEMENTS:

1. That the offended party is incapacitated for labor for

10 days or more (but not more than 30 days), or needs
medical attendance for the same period of time

2. That the physical injuries must not be those described

in the preceding articles

Notes:
1. Circumstances qualifying the offense:

a. when there is manifest intent to insult or offend the

injured person

b. when there are circumstances adding ignominy to

the offense
 P a g e | 142

c. when the victim is either the offenders parents,

ascendants, guardians, curators or teachers

d. when the victim is a person of rank or person in

authority, provided the crime is not direct assault

2. It falls under this article even if there was no incapacity

but the medical treatment was for 13 days

In this article, the offended party is incapacitated from work

for ten (10) days or more but not more than thirty (30) days.
If the injury causes the illness of the victim, the healing
duration must be more than nine (9) days but not more than
thirty (30) days.

Article 265 is an exception to Article 48 in relation to

complex crimes as the latter only takes place in cases
where the Revised Penal Code has no specific provision
penalizing the same with a definite, specific penalty. Hence,
there is no complex crime of slander by deed with less
serious physical injuries but only less serious physical injuries if
the act which was committed produced the less serious
physical injuries with the manifest intent to insult or offend
the offended party, or under circumstances adding
ignominy to the offense.

Article 266
SLIGHT PHYSICAL INJURIES

3 Kinds:

1. That which incapacitated the offended party for labor

from 1-9 days or required medical attendance during
the same period

2. That which did not prevent the offended party from

engaging in his habitual work or which did not require
medical attendance (ex. Black-eye)
 P a g e | 143

3. Ill-treatment of another by deed without causing any

injury (ex. slapping but without causing dishonor)

This involves even ill-treatment where there is no sign of injury

requiring medical treatment.

Slapping the offended party is a form of ill-treatment which

is a form of slight physical injuries.

But if the slapping is done to cast dishonor upon the person

slapped, the crime is slander by deed. If the slapping was
done without the intention of casting dishonor, or to
humiliate or embarrass the offended party out of a quarrel
or anger, the crime is still ill-treatment or slight physical
injuries.

The crime is slight physical injury if there is no proof as to the

period of the offended partys incapacity for labor or of the
required medical attendance.

SPECIAL PROTECTION OF CHILDREN AGAINST CHILD ABUSE,

EXPLOITATION
AND DISCRIMINATION ACT REPUBLIC ACT NO. 7610

The last paragraph of Article VI of Republic Act No. 7610,

provides:

For purposes of this Act, the penalty for the commission of

acts punishable under Articles 248, 249, 262 (2) and 263 (1)
of Act No 3815, as amended of the Revised Penal Code for
the crimes of murder, homicide, other intentional mutilation,
and serious physical injuries, respectively, shall be reclusion
perpetua when the victim is under twelve years of age.

The provisions of Republic Act No. 7160 modified the

provisions of the Revised Penal Code in so far as the victim
of the felonies referred to is under 12 years of age. The clear
intention is to punish the said crimes with a higher penalty
when the victim is a child of tender age. Incidentally, the
reference to Article 249 of the Code which defines and
 P a g e | 144

penalizes the crime of homicide were the victim is under 12

years old is an error. Killing a child under 12 is murder, not
homicide, because the victim is under no position to defend
himself as held in the case of People v. Ganohon, 196 SCRA
431.

For murder, the penalty provided by the Code, as

amended by Republic Act No. 7659, is reclusion perpetua to
death higher than what Republic Act no. 7610 provides.
Accordingly, insofar as the crime is murder, Article 248 of the
Code, as amended, shall govern even if the victim was
under 12 years of age. It is only in respect of the crimes of
intentional mutilation in paragraph 2 of Article 262 and of
serious physical injuries in paragraph 1 of Article 263 of the
Code that the quoted provision of Republic Act No. 7160
may be applied for the higher penalty when the victim is
under 12 years old.

CHILD ABUSE: DEFINED.

CHILD ABUSE refers to the maltreatment, whether habitual or

not, of the child which includes any of the following:
(1) Psychological and physical abuse, neglect, cruelty,
sexual abuse and emotional maltreatment;
(2) Any act by deeds or words which debases, degrades
or demeans the intrinsic worth and dignity of a child as a
human being;
(3) Unreasonable deprivation of his basic needs for
survival, such as food and shelter; or
(4) 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.

ATTEMPT TO COMMIT CHILD TRAFFICKING (SEC. 6, RA 7610)

There is an attempt to commit child prostitution under

Section 5, paragraph (a) hereof 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,
 P a g e | 145

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.

There is also an attempt to commit child prostitution, under

paragraph (b) of Section 5 hereof when any person is
receiving services from a child in a sauna parlor or bath,
massage clinic, health club and other similar establishments.
A penalty lower by two (2) degrees than that prescribed for
the consummated felony under Section 5 hereof shall be
imposed upon the principals of the attempt to commit the
crime of child prostitution under this Act, or, in the proper
case, under the Revised Penal Code.

CHILD TRAFFICKING( SEC. 7 & 8, RA 7610)

Consummated Act of Child Trafficking. (sec 7)

Who are liable - 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.

Penalty - reclusion temporal to reclusion perpetua. The

penalty shall be imposed in its maximum period when the
victim under twelve (12) years of age.

When is there an Attempt to Commit Child Trafficking (Sec.

8)

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
 P a g e | 146

Development or written permit or justification from the

child's parents or legal guardian;

(b) When a person, agency, establishment or child-

caring institution recruits women or couples to bear a
children for the purpose of child trafficking; or

(c) When 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

(d) 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.

COMMON PENAL PROVISIONS (SEC. 31)

Section 31 of RA 7610 provides that:

(a)The penalty provided under this Act shall be imposed

in its maximum period if the offender has been previously
convicted under this Act;

(b)When the offender is a corporation, partnership or

association, the officer or employee thereof who is
responsible for the violation of this Act shall suffer the
penalty imposed in its maximum period;

(c)The penalty provided herein shall be imposed in its

maximum period when the perpetrator is an ascendant,
parent guardian, stepparent or collateral relative within
the second degree of consanguinity or affinity, or a
manager or owner of an establishment which has no
license to operate or its license has expired or has been
revoked;
 P a g e | 147

(d)When the offender is a foreigner, he shall be

deported immediately after service of sentence and
forever barred from entry to the country;

(e)The penalty provided for in this Act shall be imposed

in its maximum period if the offender is a public officer or
employee: Provided, however, That if the penalty
imposed is reclusion perpetua or reclusion temporal,
then the penalty of perpetual or temporary absolute
disqualification shall also be imposed: Provided, finally,
That if the penalty imposed is prision correccional or
arresto mayor, the penalty of suspension shall also be
imposed; and
(f)A fine to be determined by the court shall be imposed
and administered as a cash fund by the Department of
Social Welfare and Development and disbursed for the
rehabilitation of each child victim, or any immediate
member of his family if the latter is the perpetrator of the
offense.

RAPE

ART 266-A
RAPE

The Anti-Rape Law of 1997 (RA 8353) now classified the

crime of rape as Crime Against Persons incorporated into
Title 8 of the RPC to be known as Chapter 3

ELEMENTS:
Rape is committed
1. By a man who have carnal knowledge of a woman
under any of the following circumstances:

a. through force, threat or intimidation

b. when the offended party is deprived of reason or

otherwise unconscious
 P a g e | 148

c. by means of fraudulent machination or grave abuse

of authority

d. when the offended party is under 12 years of age or

is demented, even though none of the
circumstances mentioned above be present

2. By any person who, under any of the circumstances

mentioned in par 1 hereof, shall commit an act of
sexual assault by inserting

a. his penis into another persons mouth or anal orifice,

or

b. any instrument or object, into the genital or anal

orifice of another person

Rape committed under par 1 is punishable by:

1. reclusion perpetua

2. reclusion perpetua to DEATH when

a. victim became insane by reason or on the occasion of
rape

b. the rape is attempted and a homicide is committed by

reason or on the occasion thereof

3. DEATH when
a. homicide is committed

b. victim under 18 years and offender is:

i. parent
ii. ascendant
iii. step-parent
iv. guardian
v. relative by consanguinity or affinity with the 3rd civil
degree or
vi. common law spouse of parent of victim
 P a g e | 149

c. under the custody of the police or military authorities or

any law enforcement or penal institution

d. committed in full view of the spouse, parent or any of

the children or other relatives within the 3rd degree of
consanguinity

e. victim is a religious engaged in legitimate religious

vocation or calling and is personally known to be such
by the offender before or at the time of the commission
of the crime

f. a child below 7 years old

g. offender knows he is afflicted with HIV or AIDS or any

other sexually transmissible disease and the virus is
transmitted to the victim
h. offender; member of the AFP, or para-military units
thereof, or the PNP, or any law enforcement agency or
penal institution, when the offender took advantage of
his position to facilitate the commission of the crime

i. victim suffered permanent physical mutilation or

disability

j. the offender knew of the pregnancy of the offended

party at the time of the commission of the crime; and

k. when the offender knew of the mental disability,

emotional disorder and/or physical handicap or the
offended party at the time of the commission of the
crime

Rape committed under par 2 is punishable by:

1. prision mayor

2. prision mayor to reclusion temporal

a. use of deadly weapon or

b. by two or more persons

 P a g e | 150

3. reclusion temporal when the victim has become insane

4. reclusion temporal to reclusion pepetua rape is

attempted and homicide is committed

5. reclusion perpetua homicide is committed by reason or

on occasion of rape

6. reclusion temporal committed with any of the 10

aggravating circumstances mentioned above

Notes:
1. Dividing age in rape:
a. less than 7 yrs old, mandatory death

b. less than 12 yrs old, statutory rape

c. less than 18 yrs old and there is relationship (e.g. parent

etc); mandatory death

Because of this amendment which reclassified rape as a

crime against persons, an impossible crime may now be
committed in case of rape; that is, if there is inherent
impossibility of its accomplishment or on account of the
employment of inadequate or ineffectual means.

The case of People vs. Orita (G.R. No. 88724, April 3, 1990),
laid a new doctrine in Philippine penal law insofar as the
crime of rape is concerned, as it finally did away with
frustrated rape and allowed only attempted rape and
consummated rape to remain in our statute books.

The act of touching should be understood as inherently

part of the entry of the penis into the labia of the female
organ and not the mere touching alone of the mons pubis
or the pudendum. Jurisprudence dictates that the labia
majora (or he outer lips of the female organ) must be
entered for rape to be consummated, and not merely for
the penis to stroke the surface of the female organ. Thus,
 P a g e | 151

grazing of the surface of the female organ or touching the

mons pubis of the pudendum is not sufficient to constitute
rape. ( Pp vs. Campuhan)

Classification of rape

(1) Traditional concept under Article 335 carnal

knowledge with a woman against her will. The
offended party is always a woman and the offender is
always a man.
(2) Sexual assault - committed with an instrument or an
object or use of the penis with penetration of mouth or
anal orifice. The offended party or the offender can
either be man or woman, that is, if a woman or a man
uses an instrument on anal orifice of male, she or he
can be liable for rape.

TITLE NINE
CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Crimes against liberty

1. Kidnapping and serious illegal detention (Art. 267);

2. Slight illegal detention (Art. 268);
3. Unlawful arrest (Art. 269);
4. Kidnapping and failure to return a minor (Art. 270);
5. Inducing a minor to abandon his home (Art. 271);
6. Slavery (Art. 272);
7. Exploitation of child labor (Art. 273);
8. Services rendered under compulsion in payment of
debts (Art. 274).

Crimes against security

1. Abandonment of persons in danger and

abandonment of one's own victim (Art. 275);
2. Abandoning a minor (Art. 276);
 P a g e | 152

3. Abandonment of minor by person entrusted with his

custody; indifference of parents (Art. 277);
4. Exploitation of minors (Art. 278);
5. Trespass to dwelling (Art. 280);
6. Other forms of trespass (Art. 281);
7. Grave threats (Art. 282);
8. Light threats (Art. 283);
9. Other light threats (Art. 285);
10. Grave coercions (Art. 286);
11. Light coercions (Art. 287);
12. Other similar coercions (Art. 288);
13. Formation, maintenance and prohibition of
combination of capital or labor through violence or
threats (Art. 289);
14. Discovering secrets through seizure of correspondence
(Art. 290);
15. Revealing secrets with abus of office (Art. 291);
16. Revealing of industrial secrets (Art. 292).

Article 267
KIDNAPPING AND SERIOUS ILLEGAL DETENTION

ELEMENTS:
1. Offender is a private individual

2. He kidnaps or detains another, or in any other manner

deprives the latter of his liberty

3. The act of detention or kidnapping must be illegal

4. That in the commission of the offense, any of the

following circumstances are present (becomes serious)

a. that the kidnapping/detention lasts for more than 3

days
 P a g e | 153

b. that it is committed simulating public authority

c. that any serious physical injuries are inflicted upon the

person kidnapped or detained or threats to kill him are
made, or

d. that the person kidnapped or detained is a minor

(except if parent is the offender), female or a public
officer

Note: When death penalty is imposed:

a. If kidnapping is committed for the purpose of extorting
ransom either from the victim or from any other person
even if none of the aforementioned are present in the
commission of the offense (even if none of the
circumstances are present)

b. When the victim is killed or dies as a consequence of

the detention or is raped or is subjected to torture or
dehumanizing acts

The essence of the offense is the actual deprivation of the

victims liberty coupled with the intent of the accused to
effect it. There must be indubitable proof that the actual
intent of the malefactor was to deprive the offended party
of liberty. The restraint however need not be permanent.
(People vs. Godoy, 250 SCRA 676).

Ortega Notes:

When a public officer conspires with a private person in the

commission of any of the crimes under Title IX, the crime is
also one committed under this title and not under Title II.

Illustration:

If a private person commits the crime of kidnapping or

serious illegal detention, even though a public officer
conspires therein, the crime cannot be arbitrary detention.
 P a g e | 154

As far as that public officer is concerned, the crime is also

illegal detention.

In the actual essence of the crime, when one says

kidnapping, this connotes the idea of transporting the
offended party from one place to another. When you think
illegal detention, it connotes the idea that one is restrained
of his liberty without necessarily transporting him from one
place to another.

The crime of kidnapping is committed if the purpose of the

offender is to extort ransom either from the victim or from
any other person. But if a person is transported not for
ransom, the crime can be illegal detention. Usually, the
offended party is brought to a place other than his own, to
detain him there.

When one thinks of kidnapping, it is not only that of

transporting one person from one place to another. One
also has to think of the criminal intent.

Forcible abduction -- If a woman is transported from one

place to another by virtue of restraining her of her liberty,
and that act is coupled with lewd designs.

Serious illegal detention If a woman is transported just to

restrain her of her liberty. There is no lewd design or lewd
intent.

Grave coercion If a woman is carried away just to break

her will, to compel her to agree to the demand or request
by the offender.

In a decided case, a suitor, who cannot get a favorable

reply from a woman, invited the woman to ride with him,
purportedly to take home the woman from class. But while
the woman is in his car, he drove the woman to a far place
and told the woman to marry him. On the way, the
offender had repeatedly touched the private parts of the
woman. It was held that the act of the offender of touching
 P a g e | 155

the private parts of the woman could not be considered as

lewd designs because he was willing to marry the offended
party. The Supreme Court ruled that when it is a suitor who
could possibly marry the woman, merely kissing the woman
or touching her private parts to compel her to agree to
the marriage, such cannot be characterized as lewd
design. It is considered merely as the passion of a lover.
But if the man is already married, you cannot consider that
as legitimate but immoral and definitely amounts to lewd
design.

If a woman is carried against her will but without lewd

design on the part of the offender, the crime is grave
coercion.

Article 268
SLIGHT ILLEGAL DETENTION

ELEMENTS:
1. Offender is a private person

2. He kidnaps or detains another or in any other maner

deprives him pof his liberty / furnished place for the
perpetuation of the crime

3. That the act of detention or kidnapping must be illegal

4. That the crime is committed without the attendant of

any of the circumstances enumerated in Art 267

Note: Privileged mitigating circumstances:

If the offender:
a. voluntarily releases the person so kidnapped or
detained within 3 days from the commencement of the
detention

b. without having attained the purpose intended and

 P a g e | 156

c. before the institution of criminal proceedings against

him

Article 269
UNLAWFUL ARREST

ELEMENTS:
1. That the offender arrests or detains another person

2. That the purpose of the offender is to deliver him to the

proper authorities

3. That the arrest or detention is not authorized by law or

there is no reasonable ground therefor

Notes:
1. Offender is any person, so either a public officer or
private individual

The offender in this article can be a private individual or

public officer. In the latter case, the offender, being a
public officer, has the authority to arrest and detain a
person, but the arrest is made without legal grounds. For him
to be punished under this article, the public officer must
make the arrest and detention without authority to do so; or
without acting in his official capacity.

This felony consists in making an arrest or detention without

legal or reasonable ground for the purpose of delivering the
offended party to the proper authorities.

The offended party may also be detained but the crime is

not illegal detention because the purpose is to prosecute
the person arrested. The detention is only incidental; the
primary criminal intention of the offender is to charge the
offended party for a crime he did not actually commit.

Generally, this crime is committed by incriminating innocent

persons by the offenders planting evidence to justify the
 P a g e | 157

arrest a complex crime results, that is, unlawful arrest

through incriminatory machinations under Article 363.

2. Refers to warrantless arrests

If the arrest is made without a warrant and under

circumstances not allowing a warrantless arrest, the crime
would be unlawful arrest.

If the person arrested is not delivered to the authorities, the

private individual making the arrest incurs criminal liability for
illegal detention under Article 267 or 268.

If the offender is a public officer, the crime is arbitrary

detention under Article 124.

If the detention or arrest is for a legal ground, but the public

officer delays delivery of the person arrested to the proper
judicial authorities, then Article 125 will apply.

Note that this felony may also be committed by public

officers.

3. In art 125, the detention is for some legal ground while

here, the detention is not authorized by law

4. In art 125, the crime pertains to failure to deliver the

person to the proper judicial authority within the
prescribed period while here, the arrest is not
authorized by law

Article 272
SLAVERY

ELEMENTS:
1. That the offender purchases. Sells, kidnaps or detains a
human being.
 P a g e | 158

2. That the purpose of the offender is to enslave such

human being.

Slavery is the treatment of a human being as a mere

property, stripped of dignity and human rights. The person is
reduced to the level of an ordinary animal, a mere chattel
with material value capable of pecuniary estimation and for
which reason, the offender purchases and sells the same.

Note: Qualifying circumstance if the purpose of the

offender is to assign the offended party to some immoral
traffic (prostitution), the penalty is higher

This is distinguished from illegal detention by the purpose. If

the purpose of the kidnapping or detention is to enslave the
offended party, slavery is committed.

The crime is slavery if the offender is not engaged in the

business of prostitution. If he is, the crime is white slave trade
under Article 341.

Article 273
EXPLOITION OF CHILD LABOR

ELEMENTS:
1. That the offender retains a minor in his service.

2. That it is against the will of the minor.

3. That 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.

If the minor agrees to serve the accused, no crime is

committed, even if the service is rendered to pay an
ascendants alleged debt.

Article 274
 P a g e | 159

SERVICES RENDERED UNDER COMPULSION IN PAYMENT OF

DEBT

ELEMENTS:

1. That the offender compels a debtor to work for him,

either as household servant or farm laborer.

2. That it is against the debtors will.

3. That the purpose is to require or enforce the payment of

a debt.

Involuntary servitude or service. In this article, no distinction

is made whether the offended is a minor or an adult.

CRIMES AGAINST SECURITY

Article 275
ABANDONMENT OF PERSON IN DANGER AND
ABANDONMENT OF ONES OWN VICTIM

Acts punishable:
1. By failing to render assistance to any person whom the
offender finds in an inhabited 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

Elements
a. That place is not inhabited.

b. The accused found there a person wounded or in

danger of dying.

c. The accused can render assistance without

detriment to himself.
 P a g e | 160

d. The accused fails to render assistance.

2. By failing to help or render assistance to another whom

the offender has accidentally wounded or injured

3. By failing to deliver a child, under 7 whom the offender

has found abandoned, to the authorities or to his family,
or by failing to take him to a safe place

Under the first act, the offender is liable only when he can
render such assistance without detriment to himself, unless
such omission shall constitute a more serious offense. Where
the person is already wounded and already in danger of
dying, there is an obligation to render assistance only if he is
found in an uninhabited place. If the mortally wounded,
dying person is found in a place not uninhabited in legal
contemplation, abandonment will not bring about this
crime. An uninhabited place is determined by possibility of
person receiving assistance from another. Even if there are
many houses around, the place may still be uninhabited if
possibility of receiving assistance is remote.

If what happened was an accident at first, there would be

no liability pursuant to Article 12 (4) of the RPC damnum
absque injuria. But if you abandon your victim, you will be
liable under Article 275. Here, the character of the place is
immaterial. As long as the victim was injured because of
the accident caused by the offender, the offender would
be liable for abandonment if he would not render
assistance to the victim.

Article 276
ABANDONING A MINOR

ELEMENTS:
1. That the offender has the custody of a child.

2. That the child is under seven years of age.

 P a g e | 161

3. That he abandons such child.

4. That he has no intent to kill the child when the latter is

abandoned.

Notes:
1. Conscious, deliberate, permanent

In order to hold one criminally liable under this article, the

offender must have abandoned the child with deliberate
intent. The purpose of the offender must solely be
avoidance of the obligation of taking care of the minor.
2. Qualifying circumstances:
a. When the death of the minor resulted from such
abandonment

b. If the life of the minor was in danger because of

the abandonment

Article 278
EXPLOITATION OF MINORS

Acts punished:

1. By causing any boy or girl under 16 to perform any

dangerous feat of balancing, physical strength or
contortion, the offender being any person

2. By employing children under 16 who are not the children

or descendants of the offender in exhibitions of acrobat,
gymnast, rope-walker, diver, or wild-animal tamer or
circus manager or engaged in a similar calling

3. By employing any descendant under 12 in dangerous

exhibitions enumerated in the next preceding paragraph,
the offender being engaged in any of said callings
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4. By delivering a child under 16 gratuitously to any person

following any of the callings enumerated in par 2 or to
any habitual vagrant or beggar, the offender being an
ascendant, guardian, teacher or person entrusted in any
capacity with the care of such child

5. By inducing any child under 16 to abandon the home of

its ascendants; guardians, curators or teachers to follow
any person engaged in any of the callings mentioned in
par 2 or to accompany any habitual vagrant or beggar,
the offender being any person

Note: Qualifying Circumstance if the delivery of the child

to any person following any of the callings of acrobat, rope-
walker, diver or wild-animal trainer or circus manager or to
any habitual vagrant of beggar is made in consideration of
any price, compensation or promise, the penalty is higher.

The offender is engaged in a kind of business that would

place the life or limb of the minor in danger, even though
working for him is not against the will of the minor.

Nature of the Business This involves circuses which

generally attract children so they themselves may enjoy
working there unaware of the danger to their own lives and
limbs.

Age Must be below 16 years. At this age, the minor is still

growing.

If the employer is an ascendant, the crime is not committed,

unless the minor is less than 12 years old. Because if the
employer is an ascendant, the law regards that he would
look after the welfare and protection of the child; hence,
the age is lowered to 12 years. Below that age, the crime is
committed.

But remember Republic Act No. 7610 (Special Protection of

Children against Child Abuse, Exploitation and
Discrimination Act). It applies to minors below 18 years old,
 P a g e | 163

not 16 years old as in the Revised Penal Code. As long as

the employment is inimical even though there is no
physical risk and detrimental to the childs interest
against moral, intellectual, physical, and mental
development of the minor the establishment will be
closed.

Article 278 has no application if minor is 16 years old and

above. But the exploitation will be dealt with by Republic
Act No. 7610.

If the minor so employed would suffer some injuries as a

result of a violation of Article 278, Article 279 provides that
there would be additional criminal liability for the resulting
felony.

Article 280
QUALIFIED TRESPASS TO DWELLING

ELEMENTS:
1. That the offender is a private person.

2. That he enters the dwelling of another.

3. That such entrance is against the latters will.

Notes:

Dwelling This is the place that a person inhabits. It includes

the dependencies which have interior communication with
the house. It is not necessary that it be the permanent
dwelling of the person. So, a persons room in a hotel may
be considered a dwelling. It also includes a room where
one resides as a boarder.

1. Qualifying circumstance: if the offense is committed by

means of violence or intimidation, the penalty is higher
 P a g e | 164

2. There must be an opposition to the entry of the accused

If the entry is made by a way not intended for entry, that is

presumed to be against the will of the occupant (example,
entry through a window). It is not necessary that there be a
breaking.

Lack of permission to enter a dwelling does not amount to

prohibition. So, one who enters a building is not presumed to
be trespasser until the owner tells him to leave the building.
In such a case, if he refuses to leave, then his entry shall now
be considered to have been made without the express
consent of the owner. (People vs. De Peralta, 42 Phil. 69)

Even if the door is not locked, for as long as it is closed, the

prohibition is presumed especially if the entry was done at
the late hour of the night or at an unholy hour of the day. (U.
S. vs. Mesina, 21 Phil. 615)

3. Implied prohibition is present considering the situation

late at night and everyones asleep or entrance was
made through the window

Against the will -- This means that the entrance is, either
expressly or impliedly, prohibited or the prohibition is
presumed. Fraudulent entrance may constitute trespass.
The prohibition to enter may be made at any time and not
necessarily at the time of the entrance.

To prove that an entry is against the will of the occupant, it

is not necessary that the entry should be preceded by an
express prohibition, provided that the opposition of the
occupant is clearly established by the circumstances under
which the entry is made, such as the existence of enmity or
strained relations between the accused and the occupant.

4. Prohibition is not necessary when violence or intimidation

is employed by the offender
 P a g e | 165

On violence, Cuello Calon opines that violence may be

committed not only against persons but also against things.
So, breaking the door or glass of a window or door
constitutes acts of violence. Our Supreme Court followed
this view in People v. Tayag. Violence or intimidation must,
however, be anterior or coetaneous with the entrance and
must not be posterior. But if the violence is employed
immediately after the entrance without the consent of the
owner of the house, trespass is committed. If there is also
violence or intimidation, proof of prohibition to enter is no
longer necessary.

5. When there is no overt act of the crime intended to be

committed, this is the crime

If the purpose in entering the dwelling is not shown, trespass

is committed. If the purpose is shown, it may be absorbed in
the crime as in robbery with force upon things, the trespass
yielding to the more serious crime. But if the purpose is not
shown and while inside the dwelling he was found by the
occupants, one of whom was injured by him, the crime
committed will be trespass to dwelling and frustrated
homicide, physical injuries, or if there was no injury, unjust
vexation.

6. May be committed even by the owner (as against the

actual occupant)

Even if the house belonged to the accused, if the possession

has been delivered to another by reason of contract or by
a mere tolerance, his being the owner would not authorize
him to enter the house against the will of the lawful
occupant. His ownership is no authority for him to place the
law in his hands. (People vs. Almeda, 75 Phil. 476)

Distinction between qualified trespass to dwelling and

violation of domicile
 P a g e | 166

Unlike qualified trespass to dwelling, violation of domicile

may be committed only by a public officer or employee
and the violation may consist of any of the three acts
mentioned in Article 128 (1) entering the dwelling against
the will of the owner without judicial order; (2) searching
papers or other effects found in such dwelling without the
previous consent of the owner thereof; and (3) refusing to
leave the dwelling when so requested by the owner thereof,
after having surreptitiously entered such dwelling.

7. Not applicable to:

a. entrance is for the purpose of preventing harm to
himself, the occupants or a third person

b. purpose is to render some service to humanity or justice

c. place is a caf, tavern etc while open

Pursuant to Section 6, Rule 113 of the Rules of Court, a

person who believes that a crime has been committed
against him has every right to go after the culprit and arrest
him without any warrant even if in the process he enters the
house of another against the latters will.

8. Medina case: when the accused entered the dwelling

through the window, he had no intent to kill any person
inside, but the intention to kill came to his mind when he
was being arrested by the occupants thereof, the crime of
trespass to dwelling is a separate and distinct offense from
frustrated homicide

THREATS and COERCIONS

Article 282
GRAVE THREATS

Acts punishable:
 P a g e | 167

1. By threatening another with the infliction upon his person,

honor or property that of his family of any wrong
amounting to a crime and demanding money or
imposing any other condition, even though not unlawful
and the offender (Note: threat is with condition)

Elements
a. That the offender threatens another person with the
infliction upon the latters person, honor or property,
or upon that of the latters family, of any wrong.

b. That such wrong amounts to a crime.

c. That there is a demand for money or that any other

condition is imposed, even though not unlawful.

d. That the offender attains his purpose.

2. By making such threat without the offender attaining his

purpose

3. By threatening another with the infliction upon his person,

honor or property or that of his family of any wrong
amounting to a crime, the threat not being subject to a
condition (Note: threat is without condition)

Elements
a. That the offender threatens another person with the
infliction upon the latters person, honor or property,
or upon that of the latters family, of any wrong.

b. That such wrong amounts to a crime.

c. That the threat is not subject to a condition

Notes:

Intimidation is an indispensable element in the crime of

threat. The very essence of threat is to sow fear, anxiety and
insecurity in the mind of the offended party. It is done by
 P a g e | 168

threatening to commit the crime upon the person, honor

and property of the offended party. There is a promise of
some future harm or injury.

1. Aggravating circumstances: if made in writing or thru a

middleman

2. Frustrated if not received by the person being

threatened

3. Art 284 bond for good behavior may be imposed (only in

these offenses)

Article 283
LIGHT THREATS

ELEMENTS:
1. That the offender makes a threat to commit a wrong.

2. That the wrong does not constitute a crime.

3. That there is a demand for money or that other condition

is imposed, even though not unlawful

4. That the offender has attained his purpose or, that he has
not attained his purpose

In order to convict a person of the crime of light threats, the

harm threatened must not be in the nature of crime and
there is a demand for money or any other condition is
imposed, even though lawful.

Article 286
GRAVE COERCIONS

ELEMENTS:
1. That a person prevented another from doing something
OR not to do something against his will, be it right or
wrong;
 P a g e | 169

2. That the prevention or compulsion be effected by

violence, of force as would produce intimidation and
control the will.

3. That the person that restrained the will and liberty by

another had not the authority of law or the right to do so,
or, in other words, that the restraint shall not be made
under authority of law or in the exercise of any lawful
right.

Acts punished

1. Preventing another, by means of violence, threats or

intimidation, from doing something not prohibited by
law;

2. Compelling another, by means of violence, threats or

intimidation, to do something against his will, whether it
be right or wrong.

In grave coercion, the act of preventing by force must be

made at the time the offended party was doing or was
about to do the act to be prevented.

Grave coercion arises only if the act which the offender

prevented another to do is not prohibited by law or
ordinance. If the act prohibited was illegal, he is not liable
for grave coercion.

If a person prohibits another to do an act because the act is

a crime, even though some sort of violence or intimidation is
employed, it would not give rise to grave coercion. It may
only give rise to threat or physical injuries, if some injuries are
inflicted. However, in case of grave coercion where the
offended party is being compelled to do something against
his will, whether it be wrong or not, the crime of grave
coercion is committed if violence or intimidation is
employed in order to compel him to do the act. No person
shall take the law into his own hands.
 P a g e | 170

Illustration:

Compelling the debtor to deliver some of his properties to

pay a creditor will amount to coercion although the creditor
may have a right to collect payment from the debtor, even
if the obligation is long over due.

The violence employed in grave coercion must be

immediate, actual, or imminent. In the absence of actual
or imminent force or violence, coercion is not committed.
The essence of coercion is an attack on individual liberty.

The physical violence is exerted to (1) prevent a person

from doing something he wants to do; or (2) compel him to
do something he does not want to do.

Illustration:

If a man compels another to show the contents of the

latters pockets, and takes the wallet, this is robbery and not
grave coercion. The intimidation is a means of committing
robbery with violence or intimidation of persons. Violence is
inherent in the crime of robbery with violence or intimidation
upon persons and in usurpation of real properties because it
is the means of committing the crime.

Exception to the rule that physical violence must be

exerted: where intimidation is so serious that it is not a threat
anymore it approximates violence.

In Lee v. CA, 201 SCAR 405, it was held that neither the
crime of threats nor coercion is committed although the
accused, a branch manager of a bank made the
complainant sign a withdrawal slip for the amount needed
to pay the spurious dollar check she had encashed, and
also made her execute an affidavit regarding the return of
the amount against her better sense and judgment.
According to the court, the complainant may have acted
reluctantly and with hesitation, but still, it was voluntary. It is
 P a g e | 171

different when a complainant refuses absolutely to act such

an extent that she becomes a mere automaton and acts
mechanically only, not of her own will. In this situation, the
complainant ceases to exits as an independent personality
and the person who employs force or intimidation is, in the
eyes of the law, the one acting; while the hand of the
complainant sign, the will that moves it is the hand of the
offender.

Article 287
LIGHT COERCIONS

ELEMENTS:
1. That the offender must be a creditor.

2. That he seizes anything belonging to his debtor.

3. That the seizure of the thing be accomplished by means

of violence or a display of material force producing
intimidation;

4. That the purpose of the offender is to apply the same to

the payment of the debt.

UNJUST VEXATION

In unjust vexation, any act committed without violence, but

which unjustifiably annoys or vexes an innocent person
amounts to light coercion.

As a punishable act, unjust vexation should include any

human conduct which, although not productive of some
physical or material harm would, however, unjustifiably
annoy or vex an innocent person.

It is distinguished from grave coercion under the first

paragraph by the absence of violence.

Illustration:
 P a g e | 172

Persons stoning someone elses house. So long as stoning is

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

The main purpose of the statute penalizing coercion and

unjust vexation is precisely to enforce the principle that no
person may take the law into his hands and that our
government is one of laws, not of men. The essence of the
crimes is the attack on individual liberty.

TITLE TEN
CRIMES AGAINST PROPERTY

Crimes against property

1. Robbery with violence against or intimidation of

persons (Art. 294);
2. Attempted and frustrated robbery committed under
certain circumstances (Art. 297);
3. Execution of deeds by means of violence or
intimidation (Art. 298);
4. Robbery in an inhabited house or public building or
edifice devoted to worship (Art. 299);
5. Robbery in an inhabited place or in a private building
(Art. 302);
6. Possession of picklocks or similar tools (Art. 304);
7. Brigandage (Art. 306);
8. Aiding and abetting a band of brigands (Art. 307);
9. Theft (Art. 308);
10. Qualified theft (Art. 310);
 P a g e | 173

11. Theft of the property of the National Library and

National Museum (Art. 311);
12. Occupation of real property or usurpation of real rights
in property (Art. 312);
13. Altering boundaries or landmarks (Art. 313);
14. Fraudulent insolvency (Art. 314);
15. Swindling (Art. 315);
16. Other forms of swindling (Art. 316);
17. Swindling a minor (Art. 317);
18. Other deceits (Art. 318);
19. Removal, sale or pledge of mortgaged property (Art.
319);
20. Destructive arson (Art. 320);
21. Other forms of arson (Art. 321);
22. Arson of property of small value (Art. 323);
23. Crimes involving destruction (Art. 324);
24. Burning ones own property as means to commit arson
(Art. 325);
25. Setting fire to property exclusively owned by the
offender (Art. 326);
26. Malicious mischief (Art. 327);
27. Special case of malicious mischief (Art. 328);
28. Damage and obstruction to means of communication
(Art. 330);
29. Destroying or damaging statues, public monuments or
paintings (Art. 331).
 P a g e | 174

Article 293
ROBBERY IN GENERAL

ELEMENTS:
1. That there be personal property belonging to another.

2. That there is unlawful taking of that property.

3. That the taking must be with intent to gain, and

4. That there is violence against or intimidation of any

person, or force upon anything.

Notes:

Robbery This is the taking or personal property belonging

to another, with intent to gain, by means of violence
against, or intimidation of any person, or using force upon
anything.

Two kinds of robbery: 1) robbery with violence or

intimidation and 2) robbery with force upon things.

1. Belonging to another person from whom property was

taken need not be the owner, legal possession is
sufficient

The property must be personal property and cannot refer to

real property.

2. Name of the real owner is not essential so long as the

personal property taken does not belong to the
accused except if crime is robbery with homicide

The owner of the property may be held liable for robbery

where he forcible takes the property from the possession of
the bailee with intent to charge the latter with its value. (U.
S. vs. Albao, 29 Phil. 86)
 P a g e | 175

In the absence of any explanation as to how one has come

into possession of stolen effects belonging to a person
wounded and treacherously killed, the possessor must
necessarily be considered the author of the aggression and
death of the victim as well as of the robbery committed.
(People vs. Rapuela. G. R. NO. 85178, March 15, 1990)

Suppose the property is res nullus or without an owner?

The crime of robbery or theft cannot be committed if the

property is without an owner for the simple reason that no
one can be prejudiced by the taking of the personal
property, even though the intent to gain is present in the
taking.

3. Taking of personal property must be unlawful; if given

in trust estafa

The taking of the property must be coupled with the

intention to permanently deprive the offended party of his
possession of the things taken. (People vs. Kho Choc, C. A.,
50 O. G. 1667)

4. As to robbery with violence or intimidation from the

moment the offender gains possession of the thing
even if offender has had no opportunity to dispose of
the same, the unlawful taking is complete

5. As to robbery with force upon things thing must be

taken out of the building

6. Intent to gain presumed from unlawful taking

Intent to gain may be presumed from the unlawful taking of
anothers property. However, when one takes a property
under the claim of ownership or title, the taking is not
considered to be with intent to gain. (U. S. vs. Manluco, et
al., 28 Phil. 360)

7. When theres no intent to gain but there is violence in

the taking grave coercion
 P a g e | 176

8. Violence or intimidation must be against the person of

the offended party, not upon the thing

9. General rule: violence or intimidation must be present

before the taking is complete
10. Except: when violence results in homicide, rape,
intentional mutilation or any of the serious physical
injuries in par 1 and 2 of art 263, the taking of the
property is robbery complexed with any of these crimes
under art 294, even if taking is already complete when
violence was used by the offender

11. Use of force upon things entrance to the building

by means described in arts 299 and 302 (offender must
enter)

The other kind of robbery is one that is committed with the

use of force upon anything in order to take with intent to
gain, the personal property of another. The use of force
here must refer to the force employed upon things in order
to gain entrance into a building or a house. (People vs.
Adorno, C. A. 40 O. G. 567)

12. When both violence or intimidation and force

upon things concur it is robbery with violence

Robbery and Theft, compared.

1. Both robbery and theft involve unlawful taking or

asportation as an element;

2. Both involve personal property belonging to another;

3. In both crimes, the taking is done with intent to gain;

4. In robbery, the taking is done either with the use of

violence or intimidation of person or the employment of
force upon things; whereas in theft, the taking is done
simply without the knowledge and consent of the owner.
 P a g e | 177

ANTI CARNAPPING ACT ( RA # 6539 )

Carnapping is the taking, with intent to gain, of a motor

vehicle belonging to another without the latters consent, or
by means of violence against or intimidation of persons, or
by using force upon things.

Any vehicle which is motorized using the streets which are

public, not exclusively for private use is covered within the
concept of motor vehicle under the Anti-Carnapping Law.
A tricycle which is not included in the enumeration of
exempted vehicles under the Carnapping Law is deemed
to be motor vehicle as defined in the law, the stealing of
which comes within its penal sanction.

If the vehicle uses the streets with or without the required

license, the same comes within the protection of the law, for
the severity of the offense is not to be measured by what
kind of street or highway the same is used but by the nature
of the vehicle itself and the case to which it is devoted.
(Izon, et al., vs. People, 107 SCRA 118)

Article 294
ROBBERY WITH VIOLENCE AGAINST OR INTIMIDATION OF
PERSON

Acts punished as robbery with violence against or

intimidation of persons

By reason or on occasion of the robbery, the following are

committed:

1. homicide

2. robbery accompanied with rape or intentional

mutilation, SPI insane, imbecile, impotent or blind
 P a g e | 178

3. SPI lost the use of speech, hear, smell, eye, hand, foot,
arm, leg, use of any such member, incapacitated for
work habitually engaged in

4. Violence/intimidation shall have been carried to a

degree clearly unnecessary for the crime or when in
the cause of its execution SPI/deformity, or shall have
lost any part of the body or the use thereof or shall have
been ill or incapacitated for the performance of the
work for > 90 days; > 30 days

5. Any kind of robbery with less serious physical injuries or

slight physical injuries

Notes:
1. special complex crimes (specific penalties prescribed)

robbery with homicide

a. if original design is robbery and homicide is committed
robbery with homicide even though homicide
precedes the robbery by an appreciable time.

b. If original design is not robbery but robbery was

committed after homicide as an afterthought 2
separate offenses.

c. Still robbery with homicide if the person killed was an

innocent bystander and not the person robbed and if
death supervened by mere accident.

The original criminal design of the culprit must be Robbery

and the Homicide is perpetrated with a view to the
consummation of the Robbery.

If death results or even accompanies a robbery, the crime

will be robbery with homicide provided that the robbery is
consummated.

As long as the criminal objective or plan is to rob, whether

the killing committed by reason or on occasion thereof is
 P a g e | 179

intentional or accidental, the crime is Robbery with

Homicide. ( Pp vs. Pecato, 151 scra 14 ) As long as there was
killing when Robbery was taking place, Robbery with
Homicide was committed, the killing occurring on the
occasion thereof.

As long as the criminal intent is to rob, that is, robbery

was the real motive, the offense would still be classified as
Robbery with Homicide even if the killing preceded or was
done ahead of the robbing. (People vs. Tolentino, 165
SCRA 490).

Thus, as a member of the agaw-armas gang whose

plan and design is to rob a policeman of his service
revolver, but because he fears that said policeman may
beat him to the draw, first shoots the policeman fatally and
only after when the latter lies dead, does he get the gun
the crime is still considered Robbery with Homicide.

This is a crime against property, and therefore, you contend

not with the killing but with the robbery.

As long as there is only one (1) robbery, regardless of the

persons killed, the crime will only be one (1) count of
robbery with homicide. The fact that there are multiple
killings committed in the course of the robbery will be
considered only as aggravating so as to call for the
imposition of the maximum penalty prescribed by law.

If, on the occasion or by reason of the robbery, somebody is

killed, and there are also physical injuries inflicted by reason
or on the occasion of the robbery, dont think that those
who sustained physical injuries may separately prosecute
the offender for physical injuries. Those physical injuries are
only considered aggravating circumstances in the crime of
robbery with homicide.

This is not a complex crime as understood under Article 48,

but a single indivisible crime. This is a special complex crime
because the specific penalty is provided in the law.
 P a g e | 180

The term homicide is used in the generic sense, and the

complex crime therein contemplated comprehends not
only robbery with homicide in its restricted sense, but also
with robbery with murder. So, any kind of killing by reason of
or on the occasion of a robbery will bring about the crime
of robbery with homicide even if the person killed is less than
three days old, or even if the person killed is the mother or
father of the killer, or even if on such robbery the person
killed was done by treachery or any of the qualifying
circumstances. In short, there is no crime of robbery with
parricide, robbery with murder, robbery with infanticide
any and all forms of killing is referred to as homicide.

Illustration:

The robbers enter the house. In entering through the

window, one of the robbers stepped on a child less than
three days old. The crime is not robbery with infanticide
because there is no such crime. The word homicide as used
in defining robbery with homicide is used in the generic
sense. It refers to any kind of death.

Although it is a crime against property and treachery is an

aggravating circumstance that applies only to crimes
against persons, if the killing in a robbery is committed with
treachery, the treachery will be considered a generic
aggravating circumstance because of the homicide.

When two or more persons are killed during the robbery,

such should be appreciated as an aggravating
circumstance.

As long as there is only one robbery, regardless of the

persons killed, you only have one crime of robbery with
homicide. Note, however, that one robbery does not
mean there is only one taking.

Illustration:
 P a g e | 181

Robbers decided to commit robbery in a house, which

turned out to be a boarding house. Thus, there were
different boarders who were offended parties in the
robbery. There is only one count of robbery. If there were
killings done to different boarders during the robbery being
committed in a boarders quarter, do not consider that as
separate counts of robbery with homicide because when
robbers decide to commit robbery in a certain house, they
are only impelled by one criminal intent to rob and there will
only be one case of robbery. If there were homicide or
death committed, that would only be part of a single
robbery. That there were several killings done would only
aggravate the commission of the crime of robbery with
homicide.

In People v. Quiones, 183 SCRA 747, it was held that there is

no crime of robbery with multiple homicides. The charge
should be for robbery with homicide only because the
number of persons killed is immaterial and does not increase
the penalty prescribed in Article 294. All the killings are
merged in the composite integrated whole that is robbery
with homicide so long as the killings were by reason or on
occasion of the robbery.

In another case, a band of robbers entered a compound,

which is actually a sugar mill. Within the compound, there
were quarters of the laborers. They robbed each of the
quarters. The Supreme Court held that there was only one
count of robbery because when they decided and
determined to rob the compound, they were only impelled
by one criminal intent to rob.

With more reason, therefore, if in a robbery, the offender

took away property belonging to different owners, as long
as the taking was done at one time, and in one place,
impelled by the same criminal intent to gain, there would
only be one count of robbery.

In robbery with homicide as a single indivisible offense, it is

immaterial who gets killed. Even though the killing may
 P a g e | 182

have resulted from negligence, you will still designate the

crime as robbery with homicide.

Illustration:

On the occasion of a robbery, one of the offenders placed

his firearm on the table. While they were ransacking the
place, one of the robbers bumped the table. As a result,
the firearm fell on the floor and discharged. One of the
robbers was the one killed. Even though the placing of the
firearm on the table where there is no safety precaution
taken may be considered as one of negligence or
imprudence, you do not separate the homicide as one of
the product of criminal negligence. It will still be robbery
with homicide, whether the person killed is connected with
the robbery or not. He need not also be in the place of the
robbery.

In one case, in the course of the struggle in a house where

the robbery was being committed, the owner of the place
tried to wrest the arm of the robber. A person several
meters away was the one who got killed. The crime was
held to be robbery with homicide.

Note that the person killed need not be one who is

identified with the owner of the place where the robbery is
committed or one who is a stranger to the robbers. It is
enough that the homicide was committed by reason of the
robbery or on the occasion thereof.

robbery with rape

d. intent to commit robbery must precede rape.

e. Prosecution of the crime need not be by offended

party fiscal can sign the information.

f. When rape and homicide co-exist, rape should be

considered as aggravating only and the crime is still
robbery with homicide
 P a g e | 183

Article 48 is not applicable to this crime because robbery is

not a necessary means for the commission of rape. Neither
is rape necessary to commit robbery.

This is another form of violence or intimidation upon person.

The rape accompanies the robbery. In this case where
rape and not homicide is committed, there is only a crime
of robbery with rape if both the robbery and the rape are
consummated. If during the robbery, attempted rape were
committed, the crimes would be separate, that is, one for
robbery and one for the attempted rape.

The rape committed on the occasion of the robbery is not

considered a private crime because the crime is robbery,
which is a crime against property. So, even though the
robber may have married the woman raped, the crime
remains robbery with rape. The rape is not erased. This is
because the crime is against property which is a single
indivisible offense.

If the woman, who was raped on the occasion of the

robbery, pardoned the rapist who is one of the robbers, that
would not erase the crime of rape. The offender would still
be prosecuted for the crime of robbery with rape, as long as
the rape is consummated.

Pardon by the offended party will not alter the criminal

liability of the offender because in robbery with rape, the
crime committed is not a crime against chastity but a crime
against property. Even under the present amendment
which classifies rape as a crime against person, the change
has no legal effect on the provision of Article 294 since the
special complex crime of robbery with rape is considered,
by express provision of law, a single crime notwithstanding
that there is a plurality of crimes committed.

If the rape is attempted, since it will be a separate charge

and the offended woman pardoned the offender, that
would bring about a bar to the prosecution of the
 P a g e | 184

attempted rape. If the offender married the offended

woman, that would extinguish the criminal liability because
the rape is the subject of a separate prosecution.

The intention must be to commit robbery and even if the

rape is committed before the robbery, robbery with rape is
committed. But if the accused tried to rape the offended
party and because of resistance, he failed to consummate
the act, and then he snatched the vanity case from her
hands when she ran away, two crimes are committed:
attempted rape and theft.

There is no complex crime under Article 48 because a single

act is not committed and attempted rape is not a means
necessary to commit theft and vice-versa.

The Revised Penal Code does not differentiate whether

rape was committed before, during or after the robbery. It
is enough that the robbery accompanied the rape.
Robbery must not be a mere accident or afterthought.

If the two (2) crimes were separated both by time and

place, there is no complex crime of Robbery with Rape.
Thus, when complainant went out of her room about 1:30
a.m. to urinate, one of the accused grabbed her, poked an
icepick on her neck , and dragged her out of the house
and was made to board a taxi; and before boarding, she
saw the two (2) companions of the man carrying her
typewriter and betamax and then joining them in the taxi,
and that after alighting from the taxi, the two (2)
companions left her, and the man who had grabbed her
brought her to a motel, where by means of force and
intimidation he was able to have sex with her, the crimes
committed are Robbery and Forcible Abduction with Rape.
The Rape committed cannot be complexed with Robbery.
(People vs. Angeles, 222 SCRA 451).

In People v. Flores, 195 SCRA 295, although the offenders

plan was to get the victims money, rape her and kill her,
but in the actual execution of the crime, the thoughts of
 P a g e | 185

depriving the victim of her valuables was relegated to the

background and the offenders prurient desires surfaced.
They persisted in satisfying their lust. They would have
forgotten about their intent to rob if not for the accidental
touching of the victims ring and wristwatch. The taking of
the victims valuables turned out to be an afterthought. It
was held that two distinct crimes were committed: rape
with homicide and theft.

In People v. Dinola, 183 SCRA 493, it was held that if the

original criminal design of the accused was to commit rape
and after committing the rape, the accused committed
robbery because the opportunity presented itself, two
distinct crimes rape and robbery were committed not
robbery with rape. In the latter, the criminal intent to gain
must precede the intent to rape.

If rape was the primary objective of the accused and the

taking of her jewelries was not done with intent to gain but
as a token of her supposed consent to the sexual
intercourse, the accused is guilty of two distinct crimes: rape
and unjust vexation. (People vs. Villarino, C. A. G. R. No.
6342-R, Nov. 26, 1951)

g. robbery with intimidation acts done by the accused

which by their own nature or by reason of the
circumstances inspire fear in the person against whom
they are directed

In the taking of personal property, it is necessary that

violence must be employed by the offender in order that
the taking may be considered as robbery. So, where the
taking is without violence or intimidation and the same is
complete, but the victim pursued the offender in order to
recover the personal property taken and by the reason
thereof, he suffers less serious or slight physical injuries in the
hands of the offender, the violence employed on the victim
which resulted to his injuries will not convert the taking of his
personal property to robbery. In such a case, the offender is
 P a g e | 186

liable for two crimes, namely, theft and less serious or slight
physical injuries.

The intimidation must be present at the time of the taking

before it is completed. If the taking is completed without
intimidation and it is employed by the offender only to
prevent the owner from recovering his stolen property, two
crimes are committed by the offender: theft and grave
threat.

If violence is employed against the offended party in order

to deprive him of his personal property and the violence
resulted to the infliction of less serious or slight physical
injuries, the crime committed would only be robbery.
Hence, there is no crime of robbery with less serious or slight
injuries. (U. S. vs. Barroga, 21 Phil 161)

On robbery with physical injuries

To be considered as such, the physical injuries must always

be serious. If the physical injuries are only less serious or
slight, they are absorbed in the robbery. The crime
becomes merely robbery. But if the less serious physical
injuries were committed after the robbery was already
consummated, there would be a separate charge for the
less serious physical injuries. It will only be absorbed in the
robbery if it was inflicted in the course of the execution of
the robbery. The same is true in the case of slight physical
injuries.

Article 295
QUALIFIED ROBBERY WITH VIOLENCE OR INTIMIDATION

Qualifying circumstances in robbery with violence or

intimidation of persons, if any of the offenses defined in
subdivisions 3, 4 and 5 of Art 294 is committed:

a. in an uninhabited place or

b. by a band or
 P a g e | 187

c. by attacking a moving train, street car, motor vehicle

or airship, or

d. by entering the passengers compartments in a train, or

in any manner taking the passengers thereof by surprise
in the respective conveyances, or

e. on a street, road, highway or alley and the intimidation

is made with the use of firearms, the offender shall be
punished by the max period of the proper penalties
prescribed in art 294

Notes:
1. Must be alleged in the information

2. Cant be offset by generic mitigating

3. Art 295 will not apply to: robbery w/ homicide, rape or SPI
under par 1 of art 263

Article 296
ROBBERY BY A BAND

Notes:

Band is defined as consisting of at least four armed

malefactors organized with the intention of carrying out any
unlawful design. Their participation in the commission of the
crime must be actual. The offender must be principal by
direct participation, so that, a principal by inducement
cannot be convicted of this crime where the aggravating
circumstance of band shall be appreciated against him,
since the law requires as a condition to its commission the
actual participation of the offender in the execution of the
crime. In such a case, the conviction of a principal by
inducement will only be limited to his criminal liability as a
co-conspirator.
 P a g e | 188

1. Liability for the acts of the other members of the band

a. he was a member of the band

b. he was present at the commission of a robbery by that

band

c. other members of the band committed an assault

d. he did not attempt to prevent the assault

2. Conspiracy to commit robbery with homicide even if

less than 4 armed men

3. Conspiracy to commit robbery only but homicide was

committed also on the occasion thereof all members of
the band are liable for robbery with homicide

Even if the agreement refers only to the robbery,

nonetheless, where the robbery is committed by a band
and a person is killed, any member who was present at the
commission of the robbery and who did not do anything to
prevent the killing of the victim on the occasion of the
robbery shall be held liable for the crime of robbery with
homicide. (People vs. Cinco, 194 SCRA 535)

4. Conspiracy is presumed when 4 or more armed persons

committed robbery

5. Unless the others attempted to prevent the assault guilty

of robbery by band only

Band is a generic aggravating circumstance in the crime of

robbery with homicide or rape. But in the other
circumstances provided under Article 294 particularly
paragraphs 3, 4 and 5, band is a special aggravating
circumstance which must be alleged in the information.

Band is a special aggravating circumstance if the robbery

results in the infliction of serious physical injuries.
 P a g e | 189

The arms contemplated under this article refers to any

deadly weapon and is not limited to firearms, whether long
or short.

Article 299
ROBBERY IN AN INHABITED HOUSE OR PUBLIC BUILDING OR
EDIFICE DEVOTED TO WORSHIP

ELEMENTS:
1. That the offender entered (a) an inhabited house, or (b)
public buildings, or (c) edifice devoted to religious
worship.

2. That the entrance was effected by any of the following

means:

a. Through an opening not intended for entrance or

egress.

b. By breaking any wall, roof, or floor or breaking any

door or window.

c. By using false keys, picklocks or similar tools or.

d. By using any fictitious name or pretending the

exercise of public authority.

3. That once inside the building, the offender took personal

property belonging to another with intent to gain.

ELEMENTS OF ROBBERY WITH FORCE UPON SUBDIVISION (B)

OR ART. 299

1. That the offender is inside a dwelling house, public

building, or edifice devoted to religious worship,
regardless of the circumstances under which he entered it
 P a g e | 190

2. That the offender takes personal property belonging to

another with intent to gain, under any of the following
circumstances.

a. by the breaking of doors, wardrobes, chests, or any

other kind of locked or sealed furniture or
receptacle, or

b. by taking such furniture or objects away to be

broken or forced open outside the place of the
robbery.

Notes:
1. Entrance ( no matter how done)

If the entering does not characterize the taking inside as

one of robbery with force upon things, it is the conduct
inside that would give rise to the robbery if there would be a
breaking of sealed, locked or closed receptacles or cabinet
in order to get the personal belongings from within such
receptacles, cabinet or place where it is kept.

2. Offender may be servants or guests

A friend who has invited in a house and who enters a room

where he finds a closed cabinet where money is kept, is
guilty of robbery if he forcibly opens the said cabinet and
takes the money contained therein.

3. When sealed box is taken out for the purpose of

breaking it, no need to open already consummated
robbery
4. Estafa if box is in the custody of accused

5. Theft if box found outside and forced open

Article 300
ROBBERY IN AN UNINHABITED PLACE AND BY A BAND
 P a g e | 191

When the robbery with force upon things is committed in an

uninhabited place and by a band, the robbery becomes
qualified. In the same manner, where robbery with violence
against or intimidation of persons is committed by a band or
in an uninhabited place, the crime becomes qualified.

The place considered uninhabited when it is not used as a

dwelling. It may refer to a building or a house which is not
used as a dwelling.

If a house is inhabited and its owners or occupants

temporarily left the place to take a short vacation in
another place, their casual absence will not make the
place or house uninhabited. (U. S. vs. Ventura, 39 Phil. 523)

Article 301
WHAT IS AN INHABITED HOUSE, PUBLIC BUILDING OR
BUILDING DEDICATED TO RELIGIOUS WORSHIP AND THEIR
DEPENDENCIES

Notes:
Inhabited house Any shelter, ship, or vessel constituting the
dwelling of one or more persons, even though the
inhabitants thereof shall temporarily be absent therefrom
when the robbery is committed.

Public building Includes every building owned by the

government or belonging to a private person but used or
rented by the government, although temporarily
unoccupied by the same.

1. dependencies are all interior courts, corrals,

warehouses, granaries or enclosed places:
a. contiguous to the building
b. having an interior entrance connected therewith
c. which form part of the whole

2. Garage must have 3 requirements. Exception:

orchards/lands
 P a g e | 192

BRIGANDAGE

Brigandage This is a crime committed by more than three

armed persons who form a band of robbers for the purpose
of committing robbery in the highway or kidnapping persons
for the purpose of extortion or to obtain ransom, or for any
other purpose to be attained by means of force and
violence.

Article 306
WHO ARE BRIGANDS

Brigands more than three armed persons forming a band

Elements of brigandage:
1. There are least four armed persons;

2. They formed a band of robbers;

3. The purpose is any of the following:

a. To commit robbery in the highway;

b. To kidnap persons for the purpose of extortion or to

obtain ransom; or

c. To attain by means of force and violence any

other purpose.

Presumption of Brigandage:
a. if members of lawless band and possession of
unlicensed firearms (any of them)

b. possession of any kind of arms (not just firearm)

There is no need for the band robbers to execute the object

of their association in order to hold them criminally liable for
the crime of brigandage.
 P a g e | 193

The primary object on the law on brigandage is to prevent

the formation of bands of robbers. Hence, if the formed
band commits robbery with the use of force upon persons
or force upon things, their criminal liability shall be limited to
the commission of such crimes.

Likewise, if the offenders are charged with robbery but the

same is not established by the evidence and what appears
clear are the elements of brigandage where the allegation
in the information necessarily includes such offense, the
offender can be convicted of the crime of brigandage.

It does not mean however that to constitute violation of P.D.

532, there must be a band. One or two persons can be
held liable under this law if they perpetrated their acts of
depredation in Philippine Highways against persons who are
not pre-determined victims.

If the agreement among more than three armed men is to

commit a particular robbery, brigandage is not committed
because the latter must be an agreement to commit
robbery in general or indiscriminately.

Article 307
AIDING AND ABETTING A BAND OF BRIGANDS

ELEMENTS:
1. That there is a band of brigands.

2. That the offender knows the band to be of brigands.

3. That the offender does any of the following acts:

a. he in any manner aids, abets or protects such band of

brigands, or

b. he gives them information of the movements of the

police or other peace officers of the government or
 P a g e | 194

c. He acquires or receives the property taken by such

brigands.

Notes:
PD 532 brigandage.
1. Seizure of any person for: (a) ransom; (b) extortion or
other unlawful purpose; (c) taking away of property by
violence or intimidation or force upon things or other
unlawful means

2. Committed by any person

3. On any Phil hi-way

Distinction between brigandage under the Revised Penal

Code and highway robbery/brigandage under Presidential
Decree No. 532:

(1) Brigandage as a crime under the Revised Penal Code

refers to the formation of a band of robbers by more
than three armed persons for the purpose of
committing robbery in the highway, kidnapping for
purposes of extortion or ransom, or for any other
purpose to be attained by force and violence. The
mere forming of a band, which requires at least four
armed persons, if for any of the criminal purposes
stated in Article 306, gives rise to brigandage.

(2) Highway robbery/brigandage under Presidential

Decree No. 532 is the seizure of any person for ransom,
extortion or for any other lawful purposes, or the taking
away of the property of another by means of violence
against or intimidation of persons or force upon things
or other unlawful means committed by any person on
any Philippine highway.

Brigandage under Presidential Decree No. 532 refers to the

actual commission of the robbery on the highway and can
be committed by one person alone. It is this brigandage
 P a g e | 195

which deserves some attention because not any robbery in

a highway is brigandage or highway robbery. A distinction
should be made between highway robbery/brigandage
under the decree and ordinary robbery committed on a
highway under the Revised Penal Code.

THEFT

Article 308
THEFT

ELEMENTS:
1. That there be taking of personal property.

2. That said property belongs to another.

3. That the taking be done with intent to gain.

4. That the taking be done without the consent of the owner.

5. That the taking be accomplished without the use of

violence against or intimidation of persons or force upon
things.

PERSONS LIABLE:
1. Those who
a) with intent to gain

b) But without violence against or intimidation of persons

nor force upon things

c) take personal property of another

d) without the latters consent

The taking from an enclosed corral of a carabao belonging

to another, after force is employed to destroy a part of the
corral to enter the same, is considered merely as theft
because corral is not a building nor a dependency of a
building. (U. S. vs. Rosales, et al., 1 Phil. 300)
 P a g e | 196

2. Those who
a) having found lost property

b) fail to deliver the same to local authorities or its owner

Notes:
1. Retention of money/property found is theft. Retention is
failure to return (intent to gain)

The word lost is used in the generic sense. It embraces loss

by stealing or any act of a person other than the owner, as
well as the act of the owner, or through some casual
occurrence. (People vs. Rodrigo, 16 SCRA 475)

The felony is not limited to the actual finder. Theft of a lost

property may be committed even by a person who is not
the actual finder. (People vs. Avila, 44 Phil. 720)

2. Knowledge of owner is not required, knowledge of loss

is enough

It is not necessary that the owner of the lost property be

known to the accused. What is important is that he knows or
has reason to know that the property was lost and for this
fact alone, it is his duty to turn it over to the authorities. If he
does otherwise, like, if he sells the thing to another, then the
crime of theft is committed.

3. Finder in law is liable

Hidden Treasure

Under Article 438 and 439 of the Civil Code, the finder of
hidden treasure on the property of another and by chance
is entitled to one-half of the treasure that he found. His duty
is to tell the owner about the treasure. If he appropriates the
other half pertaining to the owner of the property, he is
liable for theft as to that share. (People vs. Longdew, C. A.
G. R. No. 9380-R, June 4, 1953)
 P a g e | 197

3. Those who
a) after having maliciously damaged the property of
another

b) remove or make use of the fruits or object of the

damage caused by them

Theft of damaged property occurs only after the accused

has committed the crime of malicious mischief. In malicious
mischief, the offender destroys the property of another
because of hatred, resentment or other evil motive against
the owner. So, a neighbor who shoots and kills a goat which
has destroyed his flower plants and thereafter slaughters
and eats the meat of the wandering goat is guilty of theft.

4. Those who
a) enter an enclosed estate or a field where

b) trespass is forbidden or which belongs to another and,

without the consent of its owner

c) hunts or fish upon the same or gather fruits, cereals or

other forest or farm products

Notes:
1. Theft is consummated when offender is able to place
the thing taken under his control and in such a situation
as he could dispose of it at once (though no
opportunity to dispose) i.e, the control test

In the crime of theft, the law makes only of the term

taking and not taking away. The non-inclusion of the
word away is significant because it means that as soon as
the culprit takes possession of the things taken by him, the
crime of theft is already consummated since the law does
not require that the thief be able to carry away the thing
taken from the owner. (People vs. Jaranilla, 55 SCRA 563)
 P a g e | 198

2. Selling share of co-partner is not theft

The personal property must belong to another.

1. A joint owner or partner who sells the palay to other

persons or a co-owner or co-heir whp appropriates the
whole property cannot be guilty of theft since the
property cannot be said to belong to another. (U. S.
Reyes, 6 Phil. 441)

2. One who takes away the property pledged by him to

another without the latters consent, does not commit
theft for the simple reason that he is the owner of the
thing taken by him. (L. B. Reyes)

3. Salary must be delivered first to employee; prior to this,

taking of Php is theft

4. If offender claims property as his own (in good faith)

not theft (though later found to be untrue. If in bad
faith theft)

5. Gain is not just Php satisfaction, use, pleasure desired,

any benefit (e.g. joyride)

Gain means the acquisition of a thing useful for the purpose

of life. It includes the benefit which in any other sense may
be derived or expected from the act performed.

6. Actual gain is not necessary (intent to gain necessary)

7. Allege lack of consent in info is important

Consent as an element of the crime of theft must be in the

concept of consent that is freely given and not one which is
inferred from mere lack of opposition on the part of the
owner.
 P a g e | 199

Where the charge of theft under the first sentence of Article

308, the information must allege lack of consent. The
allegation of lack of consent is indispensable under the
first paragraph of Article 308 since the language or
epigraph of the law expressly requires that the (unlawful)
taking should be done without the consent of the owner. In
view of the clear text of the law, an information which does
not aver lack of consent of the owner would render the
allegation insufficient and the information may be quashed
for failure to allege an essential element of the crime. (Pua
Yi Kun vs. People, G. R. No. 26256, June 26, 1968)

Robbery and theft distinguished.

For robbery to exist, it is necessary that personal property be

taken against the will of the owner; whereas in theft, it is
sufficient that consent on the part of the owner is lacking.

Presumption:
A person found in possession of a thing taken in the recent
doing of a wrongful act is the taker of the thing and the
doer of the whole act.

Possession is not limited to actual personal custody. One

who deposits stolen property in a place where it cannot be
found may be deemed to have such property in his
possession.

ELEMENTS OF HUNTING, FISHING OR GATHERING FRUITS, ETC.

IN ENCLOSED ESTATE
(PAR. NO.3, ART. 308)

1. That there is an enclosed estate or a field where trespass

is forbidden or which belongs to another;

2. That the offender enters the same.

3. That the offender hunts or fishes upon the same or gathers

fruits, cereals or other forest or farm products, and
 P a g e | 200

4. That the hunting or fishing or gathering of products is

without the consent of the owner.

Note: Fish not in fishpond, otherwise, qualified

Ortega Notes:

Fencing under Presidential Decree No. 1612 is a distinct

crime from theft and robbery. If the participant who
profited is being prosecuted with person who robbed, the
person is prosecuted as an accessory. If he is being
prosecuted separately, the person who partook of the
proceeds is liable for fencing.

In People v. Judge de Guzman, it was held that fencing is

not a continuing offense. Jurisdiction is with the court of the
place where the personal property subject of the robbery or
theft was possessed, bought, kept, or dealt with. The place
where the theft or robbery was committed was
inconsequential.

Since Section 5 of Presidential Decree No. 1612 expressly

provides that mere possession of anything of value which
has been subject of theft or robbery shall be prima facie
evidence of fencing, it follows that a possessor of stolen
goods is presumed to have knowledge that the goods
found in his possession after the fact of theft or robbery has
been established. The presumption does not offend the
presumption of innocence in the fundamental law. This was
the ruling in Pamintuan v. People, decided on July 11, 1994.

Burden of proof is upon fence to overcome presumption; if

explanation insufficient or unsatisfactory, court will convict.
This is a malum prohibitum so intent is not material. But if
prosecution is under the Revised Penal Code, as an
accessory, the criminal intent is controlling.

When there is notice to person buying, there may be

fencing such as when the price is way below ordinary
 P a g e | 201

prices; this may serve as notice. He may be liable for

fencing even if he paid the price because of the
presumption.

Cattle Rustling and Qualified Theft of Large Cattle The

crime of cattle-rustling is defined and punished under
Presidential Decree No. 533, the Anti-Cattle Rustling law of
1974, as the taking by any means, method or scheme, of
any large cattle, with or without intent to gain and whether
committed with or without violence against or intimidation
of person or force upon things, so long as the taking is
without the consent of the owner/breed thereof. The crime
includes the killing or taking the meat or hide of large cattle
without the consent of the owner.

Since the intent to gain is not essential, the killing or

destruction of large cattle, even without taking any part
thereof, is not a crime of malicious mischief but cattle-
rustling.

The Presidential Decree, however, does not supersede the

crime of qualified theft of large cattle under Article 310 of
the Revised Penal Code, but merely modified the penalties
provided for theft of large cattle and, to that extent,
amended Articles 309 and 310. Note that the overt act that
gives rise to the crime of cattle-rustling is the taking or killing
of large cattle. Where the large cattle was not taken, but
received by the offender from the owner/overseer thereof,
the crime is not cattle-rustling; it is qualified theft of large
cattle.

Where the large cattle was received by the offender who

thereafter misappropriated it, the crime is qualified theft
under Article 310 if only physical or material possession
thereof was yielded to him. If both material and juridical
possession thereof was yielded to him who misappropriated
the large cattle, the crime would be estafa under Article
315 (1b).
 P a g e | 202

Presidential Decree No. 533 is not a special law in the

context of Article 10 of the Revised Penal Code. It merely
modified the penalties provided for theft of large cattle
under the Revised Penal Code and amended Article 309
and 310. This is explicit from Section 10 of the Presidential
Decree. Consequently, the trial court should not have
convicted the accused of frustrated murder separately from
cattle-rustling, since the former should have been absorbed
by cattle-rustling as killing was a result of or on the occasion
of cattle-rustling. It should only be an aggravating
circumstance. But because the information did not allege
the injury, the same can no longer be appreciated; the
crime should, therefore be only, simple cattle-rustling.
(People v. Martinada, February 13, 1991)

Article 310
QUALIFIED THEFT

THEFT IS QUALIFIED WHEN:

1. Committed by domestic servant, or

2. With grave abuse of confidence, or

3. Property stolen is:

a. motor vehicle
b. mail matter
c. large cattle
d. coconut from plantation
e. fish from fishpond or fishery, or

4. On occasion of calamities and civil disturbance.

Notes:

When the theft is committed by a domestic servant, the

offended party may either be the employer where the
offender is working as a household help, or a third person as
 P a g e | 203

a guest in the house. The roomboy in a hotel is embraced

within the term domestic servant.

1. grave abuse high degree of confidence e.g. guests

In the case of abuse of confidence, the latter must be

grave in order to comply with the requirement of the law
because abuse of confidence is not enough. There must be
an allegation in the information that there is a relation
between the accused and the offended party wherein the
latter confided his security as to his person, life and property
to the accused with such degree of confidence and that
the accused abused the same.

Abuse of confidence is determined from the trust reposed

by the offended party to the offender. It may also refer to
the nature of the work of the offender which must
necessarily involve trust and confidence.

Abuse of confidence is also an element of estafa. To avoid

confusion between theft with abuse of confidence
(qualified theft) and estafa with abuse of confidence,
where the offender misappropriates a thing after he
receives it from the victim, the student must remember that
in qualified theft, only the physical or material possession of
the thing is transferred. If the offender acquires the juridical
as well as the physical possession of the thing and he
misappropriates it, the crime committed is estafa. Juridical
possession of the thing is acquired when one holds the thing
in trust, or on commission, or for administration or under any
other obligation involving the duty to deliver or to return the
thing received. If the possession of the offender is not under
any of these concepts, the crime is qualified theft.

2. no confidence, not qualified theft

3. theft material possession estafa juridical possession

Where only the material possession is transferred, conversion

of the property gives rise to the crime of theft. Where both
 P a g e | 204

the material and juridical possession is transferred,

misappropriation of the property would constitute estafa.
When the material and juridical possession of the thing
transfers ownership of the property to the possessor, any
misappropriation made by the possessor will not result in the
commission of any crime, either for theft of estafa.

4. Qualified: if done by one who has access to place

where stolen property is kept e.g., guards, tellers

5. novation theory applies only if theres a relation

6. industrial partner is not liable for QT (estafa)

7. when accused considered the deed of sale as sham

(modus) and he had intent to gain, his absconding is
QT

8. motor vehicle in kabit system sold to another-theft.

Motor vehicle not used as PU in kabit system but under
K of lease-estafa

On carnapping and theft of motor vehicle

When the subject is motor vehicle, the Theft becomes

qualified. Under R.A. 6539, Anti-Carnapping Act of 1972, the
term motor vehicle includes, within its protection, any
vehicle which uses the streets, with or without the required
license, or any vehicle which is motorized using the streets,
such as a motorized tricycle. (Izon vs. People, 107 SCRA
123)

The taking with intent to gain of a motor vehicle belonging

to another, without the latters consent, or by means of
violence or intimidation of persons, or by using force upon
things is penalized as carnapping under Republic Act No.
6539 (An Act Preventing and Penalizing Carnapping), as
amended. The overt act which is being punished under this
law as carnapping is also the taking of a motor vehicle
under circumstances of theft or robbery. If the motor
 P a g e | 205

vehicle was not taken by the offender but was delivered by

the owner or the possessor to the offender, who thereafter
misappropriated the same, the crime is either qualified theft
under Article 310 of the Revised Penal Code or estafa under
Article 315 (b) of the Revised Penal Code. Qualified theft of
a motor vehicle is the crime if only the material or physical
possession was yielded to the offender; otherwise, if juridical
possession was also yielded, the crime is estafa.

9. mail matter private mail to be QT, Not postmaster

Art. 226

10. theft of large cattle

Article 311
THEFT OF PROPERTY OF THE NATIONAL LIBRARY AND
NATIONAL MUSEUM

USURPATION
Article 312
OCCUPATION OF REAL PROPERTY OR USURPATION OF REAL
RIGHTS IN PROPERTY

Acts punished:

1. Taking possession of any real property belonging to

another by means of violence against or intimidation of
persons;

2. Usurping any real rights in property belonging to

another by means of violence against or intimidation of
persons.

ELEMENTS:
1. That the offender takes possession of any real property or
usurps any real rights in property.

2. That the real property or real rights belong to another.

 P a g e | 206

3. That violence against or intimidation of persons is used by

the offender in occupying real property or usurpation real
rights in property.

4. That there is intent to gain.

Since this is a crime against property, there must be intent to

gain. In the absence of the intent to gain, the act may
constitute Coercion.

Use the degree of intimidation to determine the degree of

the penalty to be applied for the usurpation.

Usurpation under Article 312 is committed in the same way

as robbery with violence or intimidation of persons. The
main difference is that in robbery, personal property is
involved; while in usurpation of real rights, it is real property.
(People v. Judge Alfeche, July 23, 1992)

On squatting

According to the Urban Development and Housing Act, the

following are squatters:

1. Those who have the capacity or means to pay rent or

for legitimate housing but are squatting anyway;

2. Also the persons who were awarded lots but sold or

lease them out;

3. Intruders of lands reserved for socialized housing, pre-

empting possession by occupying the same.

Note that violation of Article 312 is punishable only with fine.

So, if physical injuries are inflicted on the victim due to the
violence employed by the offender in the usurpation of real
rights, the latter shall be punished separately for the crime of
physical injuries.
 P a g e | 207

Violence employed results to the death of the offended

party. When such eventuality does occur, then the crime
may rightfully be denominated as usurpation of real rights
resulting to homicide, murder, parricide, or infanticide as the
case may be.

Article 313
ALTERING BOUNDARIES OR LANDMARKS

ELEMENTS:
1. That there be boundary marks or monuments of towns,
provinces, or estates, or any other marks intended to
designate the boundaries of the same.

2. That the offender alters said boundary marks.

SWINDLING AND OTHER DECEITS

Estafa is embezzlement under common law. It is a well-

known crime to lawyers and businessmen. It is a continuing
crime unlike theft. Being a public crime, it can be
prosecuted de officio.

Article 315
A. ELEMENTS OF ESTAFA IN GENERAL: (315)
1. That the accused defrauded another (a.) by abuse of
confidence, or (b) or means of deceit and

2. That damage or prejudice capable of pecuniary

estimation is caused to the offended party or third person

The concept of damage under this article does not mean

actual or real damage. It may consist in mere disturbance
of the property rights of the offended party. However, the
damage must be capable of pecuniary estimation. This
requirement is important because in estafa, the penalty is
dependent on the value of the property.
 P a g e | 208

Since estafa is a material crime, it can be divided into

consummated, attempted or frustrated stages. In the latter
case, the damage can be in the form of temporary
prejudice or suffering, or inconvenience capable of
pecuniary estimation.
B. ELEMENTS OF ESTAFA WITH UNFAITHFULNESS: (315)
1. That the offender has an onerous obligation to deliver
something of value.

2. That he alters its substance, quantity, or quality.

3. That damage or prejudice is caused to another.

The accused does not receive the goods but delivers a

thing under an onerous obligation which is not in
accordance with the substance, quantity or quality agreed
upon. It is the altering of the substance, quality or quantity
of the thing delivered which makes the offender liable for
the crime of estafa.

The word onerous means that the offended party has fully
complied with his obligations to pay. So, if the thing
delivered whose substance was altered, is not yet fully or
partially paid, then the crime of estafa is not committed.

C. ELEMENTS OF ESTAFA WITH ABUSE OF CONFIDENCE UNDER

SUBDIVISION NO.1 PAR. (B), OF ART.315
1. That money, goods, or other personal property be
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.

2. That there be misappropriation or conversion of such

money or property by the offender, or dental on his part of
such receipt.

3. that such misappropriation or conversion or dental is to

the prejudice of another and
 P a g e | 209

4. That there is a demand made by the offended party to

the offender.

D. 2ND ELEMENT OF ESTAFA WITH ABUSE OF CONFIDENCE

UNDER PARAGRAPH (B), SUBDIVISION N0.1, ART. 315 = 3
WAYS OF COMMITTING:

1. By misappropriating the thing received.

2. By converting the thing received.

3. By denying that the thing was received.

Notes:
1. Unfaithfulness or Abuse of Confidence
a. by altering the substance

b. existing obligation to deliver even if it is not a subject

of lawful commerce

c. thing delivered has not been fully or partially paid for

not estafa

a. no agreement as to quality No estafa if delivery is

unsatisfactory

2. By misappropriating and converting

a. thing is received by offender under transactions
transferring juridical possession, not ownership

b. under PD 115 (Trust Receipts Law) failure to turn over

to the bank the proceeds of the sale of the goods
covered by TR Estafa

c. same thing received must be returned otherwise

estafa; sale on credit by agency when it was to be sold
for cash estafa
 P a g e | 210

d. Estafa not affected by Novation of Contract because

it is a public offense

e. Novation must take place before criminal liability was

incurred or perhaps prior to the filing of the criminal
information in court by state prosecutors

f. Misappropriating to take something for ones own

benefit

g. Converting act of using or disposing of anothers

property as if it was ones own; thing has been devoted
for a purpose or use different from that agreed upon

h. There must be prejudice to another not necessary

that offender should obtain gain

There is no estafa through negligence. There is likewise no

estafa where the accused did not personally profit or gain
from the misappropriation.

i. Partners No estafa of money or property received for

the partnership when the business is commercial and
profits accrued. BUT if property is received for specific
purpose and is misappropriated estafa!

j. Failure to account after the DEMAND is circumstantial

evidence of misappropriation

k. DEMAND is not a condition precedent to existence of

estafa when misappropriation may be established by
other proof

l. In theft, upon delivery of the thing to the offender, the

owner expects an immediate return of the thing to him
otherwise, Estafa
 P a g e | 211

m. Servant, domestic or employee who

misappropriates a thing he received from his master is
NOT guilty of estafa but of qualified theft

3. When in the prosecution for malversation the public

officer is acquitted, the private individual allegedly in
conspiracy with him may be held liable for estafa

E. ELEMENTS OF ESTAFA BY TAKING UNDUE ADVANTAGE OF

THE SIGNATURE IN BLANK: (315)

1. That the paper with the signature of the offended party be

in blank.

2. That the offended party should have delivered it to

offender.

3. That above the signature of the offended party a

document is written by the offender without authority to
do so.

4. That the document so written creates a liability of, or

causes damage to, the offended party or any third
person.

The element of this estafa is also abuse of confidence. The

offended party leaves a blank paper with his signature to
another, with specific instructions to make entries thereon
according to the wishes of the offended party. But contrary
to such instructions and wishes, the accused makes entries
in writing which creates liabilities against the owner of the
signature.

If the unauthorized writings were done by a person other

than the one to whom the owner of the signature delivered
the paper in blank, and it caused damage to the offended
party, the crime committed by the third party is not estafa
but falsification.
 P a g e | 212

Note: If the paper with signature in blank was stolen

Falsification if by making it appear that he participated in a
transaction when in fact he did not so participate

F. ELEMENTS OF ESTAFA BY MEANS OF DECEIT: (315)

1. that there must be a false pretense, fraudulent means

must be made or executed prior to or

2. That such false pretense, fraudulent act or fraudulent

means must be made or executed prior to or
simultaneously with the commission of the fraud.

3. That the offended party must have relied on the false

pretense, fraudulent act, or fraudulent means, that is, he
was induced to part with his money or property because
of the false pretense, fraudulent act, or fraudulent means.

4. That as a result thereof, the offended party suffered

damage.

Notes:
1. False pretenses or fraudulent acts executed prior to or
simultaneously with delivery of the thing by the
complainant

2. There must be evidence that the pretense of the accused

that he possesses power/influence is false

The representation that accused possessed influence, to

deceive and inveigle the complainant into parting with his
money must however be false to constitute deceit under
No. 2 of Article 315, RPC. (Dela Cruz vs. Court of Appeals,
et al., 265 SCRA 299).
Elements of estafa by means of false pretenses or fraudulent
acts under Article 315 (2)

Acts punished under paragraph (a)

 P a g e | 213

1. Using fictitious name;

2. Falsely pretending to possess power, influence,

qualifications, property, credit, agency, business or
imaginary transactions; or

3. By means of other similar deceits.

In the prosecution of estafa under Article 315, no. 2(a), it is

indispensable that the element of deceit consisting in the
false statement or fraudulent representation of the
accused, be made prior to, before or at least
simultaneously with the delivery of the thing by the offended
party. The added requirement that such false statement or
fraudulent representation constitutes the very motive or the
only reason or cause which induces the offended party to
part with the thing while they may be false representation
after the delivery of the goods or the thing by the aggrieved
party, such false statement or false representation, no
matter how fraudulent and obnoxious it may appear,
cannot serve as a basis for prosecution under this category
of estafa. For the case to prosper against the accused, the
prosecution must prove two indispensable elements: deceit
and damage to another. (Celino vs. Court of Appeals, 163
SCRA 97)

Credit means the ability to buy things or merchandise on the

basis of ones character, capacity to pay or goodwill in the
business community. So, if it is used to deceive another and
the deception is the principal reason for the delivery of the
goods which results in damage to the offended party, the
crime committed is estafa.

Under paragraph (b)

Altering the quality, fineness, or weight of anything

pertaining to his art or business.
Under paragraph (c)
 P a g e | 214

Pretending to have bribed any government employee,

without prejudice to the action for calumny which the
offended party may deem proper to bring against the
offender.

G. ELEMENTS OF ESTAFA BY POSTDATING A CHECK OR

ISSUING A CHECK IN PAYMENT OF AN OBLIGATION: (315)

1. That the offender postdated a check, or issued a check in

payment of an obligation.

2. That such postdatig or issuing a check was done when

the offender had no funds in the bank or his funds
deposited therein were not sufficient to cover the amount
of the check.

Notes:

Note that this only applies if

(1) The obligation is not pre-existing;

(2) The check is drawn to enter into an obligation;

(Remember that it is the check that is supposed to be the

sole consideration for the other party to have entered
into the obligation. For example, Rose wants to purchase
a bracelet and draws a check without insufficient funds.
The jeweler sells her the bracelet solely because of the
consideration in the check.)

(3) It does not cover checks where the purpose of

drawing the check is to guarantee a loan as this is not
an obligation contemplated in this paragraph

The check must be genuine. If the check is falsified and is

cashed with the bank or exchanged for cash, the crime is
estafa thru falsification of a commercial document.
 P a g e | 215

The general rule is that the accused must be able to obtain

something from the offended party by means of the check
he issued and delivered. Exception: when the check is
issued not in payment of an obligation.

It must not be promissory notes, or guaranties.

1.good faith is a defense. (PP. VS. VILLAPANDO, 56

PHIL.31)

2.dishonor for lack of funds - prima facie evidence of

deceit or failure to make good within three days after
notice of.

If the checks were issued by the defendant and he

received money for them, then stopped payment and did
not return the money, and he had an intention to stop
payment when he issued the check, there is estafa.

Deceit is presumed if the drawer fails to deposit the amount

necessary to cover the check within three days from receipt
of notice of dishonor or insufficiency of funds in the bank.

3.If check was issued in payment of pre-existing debt no

estafa

It is therefore essential that the check be issued in payment

of a simultaneous obligation. The check in question must be
utilized by the offender in order to defraud the offended
party. So, if the check was issued in payment of a promissory
note which had matured and the check was dishonored,
there is not estafa since the accused did not obtain
anything by means of said check. (People vs. Canlas, O. G.
1092)

If a bouncing check is issued to pay a pre-existing

obligation, the drawer is liable under B. P. Blg. 22 which does
not make any distinction as to whether a bad check is
issued in payment of an obligation or to guarantee an
obligation. (Que vs. People, 73217-18, Sept. 21, 1987)
 P a g e | 216

4.Offender must be able to obtain something from the

offended party by means of the check he issues and
delivers

The check must be issued in payment of an obligation. If the

check was issued without any obligation or if there is lack of
consideration and the check is subsequently dishonored,
the crime of estafa is not committed.

5.If postdating a check issued as mere

guarantee/promissory note no estafa

H. ELEMENTS OF OFFENSE DEFINED IN THE FIRST PARAGRAPH

OF SECTION 1: BP 22

1. That a person makes or draws and issues any

check.

2. That the check is made or drawn and issued to

apply on account or for value.

3. That the person who makes or draws and issues the

check knows 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.

4. That the check is subsequently dishonored by the

drawee bank for insufficiency of funds or credit, or
would have been dishonored for the same reason had
not the drawee, without any valid reason, ordered the
bank to stop payment.

Note: Failure to make good within 5 banking days prima

facie evidence of knowledge of lack and insufficiency

I. ELEMENTS OF THE OFFENSE DEFINED IN THE SECOND

PARAGRAPH OF SECTION 1: BP 22
 P a g e | 217

1. That a person has sufficient funds in or credit with the

drawee bank when he makes or draws and issues a
check.

2. That he fails to keep sufficient funds or to maintain a credit

to cover the full amount of the check if presented within a
period of 90 days from the date appearing thereon.

3. That the check is dishonored by the drawee bank.

Note: Failure to make good within 5 banking days prima

facie evididence of knowledge of lack and insufficiency

Distinction between estafa under Article 315 (2) (d) of the

Revised Penal Code and violation of Batas Pambansa Blg.
22:

(1) Under both Article 315 (2) (d) and Batas Pambansa Blg.
22, there is criminal liability if the check is drawn for non-
pre-existing obligation.

If the check is drawn for a pre-existing obligation, there

is criminal liability only under Batas Pambansa Blg. 22.

(2) Estafa under Article 315 (2) (d) is a crime against

property while Batas Pambansa Blg. 22 is a crime
against public interest. The gravamen for the former is
the deceit employed, while in the latter, it is the
issuance of the check. Hence, there is no double
jeopardy.

(3) In the estafa under Article 315 (2) (d), deceit and
damage are material, while in Batas Pambansa Blg. 22,
they are immaterial.

(4) In estafa under Article 315 (2) (d), knowledge by the

drawer of insufficient funds is not required, while in
 P a g e | 218

Batas Pambansa Blg. 22, knowledge by the drawer of

insufficient funds is reqired.

When is there prima facie evidence of knowledge of

insufficient funds?

There is a prima facie evidence of knowledge of insufficient

funds when the check was presented within 90 days from
the date appearing on the check and was dishonored.

Exceptions

1. When the check was presented after 90 days from

date;

2. When the maker or drawer --

a. Pays the holder of the check the amount due

within five banking days after receiving notice that
such check has not been paid by the drawee;

b. Makes arrangements for payment in full by the

drawee of such check within five banking days
after notice of non-payment

The drawee must cause to be written or stamped in plain

language the reason for the dishonor.

If the drawee bank received an order of stop-payment from

the drawer with no reason, it must be stated that the funds
are insufficient to be prosecuted here.

If the drawer has valid reasons for stopping payment, he

cannot be held criminally liable under B.P. Blg. 22.

The unpaid or dishonored check with the stamped

information re: refusal to pay is prima facie evidence of (1)
the making or issuance of the check; (2) the due
presentment to the drawee for payment & the dishonor
 P a g e | 219

thereof; and (3) the fact that the check was properly
dishonored for the reason stamped on the check.

On issuance of a bouncing check

The issuance of check with insufficient funds may be held

liable for estafa and Batas Pambansa Blg. 22. Batas
Pambansa Blg. 22 expressly provides that prosecution under
said law is without prejudice to any liability for violation of
any provision in the Revised Penal Code. Double Jeopardy
may not be invoked because a violation of Batas
Pambansa Blg. 22 is a malum prohibitum and is being
punished as a crime against the public interest for
undermining the banking system of the country, while under
the Revised Penal Code, the crime is malum in se which
requires criminal intent and damage to the payee and is a
crime against property.

In estafa, the check must have been issued as a reciprocal

consideration for parting of goods (kaliwaan). There must
be concomitance. The deceit must be prior to or
simultaneous with damage done, that is, seller relied on
check to part with goods. If it is issued after parting with
goods as in credit accommodation only, there is no estafa.
If the check is issued for a pre-existing obligation, there is no
estafa as damage had already been done. The drawer is
liable under Batas Pambansa Blg. 22.

For criminal liability to attach under Batas Pambansa Blg. 22,

it is enough that the check was issued to "apply on account
or for value" and upon its presentment it was dishonored by
the drawee bank for insufficiency of funds, provided that
the drawer had been notified of the dishonor and inspite of
such notice fails to pay the holder of the check the full
amount due thereon within five days from notice.

Under Batas Pambansa Blg. 22, a drawer must be given

notice of dishonor and given five banking days from notice
within which to deposit or pay the amount stated in the
check to negate the presumtion that drawer knew of the
 P a g e | 220

insufficiency. After this period, it is conclusive that drawer

knew of the insufficiency, thus there is no more defense to
the prosecution under Batas Pambansa Blg. 22.

The mere issuance of any kind of check regardless of the

intent of the parties, whether the check is intended to serve
merely as a guarantee or as a deposit, makes the drawer
liable under Batas Pambansa Blg. 22 if the check bounces.
As a matter of public policy, the issuance of a worthless
check is a public nuisance and must be abated.

Each act of drawing and issuing a bouncing check

constitutes a violation of B. P. Blg. 22.

In De Villa v. CA, decided April 18, 1991, it was held that

under Batas Pambansa Blg. 22, there is no distinction as to
the kind of check issued. As long as it is delivered within
Philippine territory, the Philippine courts have jurisdiction.
Even if the check is only presented to and dishonored in a
Philippine bank, Batas Pambansa Blg. 22 applies. This is true
in the case of dollar or foreign currency checks. Where the
law makes no distinction, none should be made.

In People v. Nitafan, it was held that as long as instrument is

a check under the negotiable instrument law, it is covered
by Batas Pambansa Blg. 22. A memorandum check is not a
promissory note, it is a check which have the word memo,
mem, memorandum written across the face of the
check which signifies that if the holder upon maturity of the
check presents the same to the drawer, it will be paid
absolutely. But there is no prohibition against drawer from
depositing memorandum check in a bank. Whatever be
the agreement of the parties in respect of the issuance of a
check is inconsequential to a violation to Batas Pambansa
Blg. 22 where the check bounces.

Cross checks do not make them non-negotiable and

therefore they are within the coverage of B. P. Blg. 22.
 P a g e | 221

J. BY OBTAINING FOOD OR CREDIT AT HOTELS, INNS,

RESTAURANTS ETC.

Acts punished under paragraph (e)

1. a. Obtaining food, refreshment, or accommodation

at a hotel, inn, restaurant, boarding house, lodging
house, or apartment house;

b. Without paying therefor;

c. With intent to defraud the proprietor or manager.

2. a. Obtaining credit at
any of the establishments;

b. Using false pretense;

3. a. Abandoning or
surreptitiously removing any part of his baggage in
the establishment;

b. After obtaining credit, food, refreshment,

accommodation;

c. Without paying.

Failure to pay food or accommodation in a hotel, restaurant

or inn usually gives rise to civil liability but if the intent to
defraud is clear like a surreptitious removal of baggage
from the hotel, or resorting to deceitful means to evade
payment, the act shall be punished criminally as Estafa.

ARSON AND OTHER CRIMES INVOLVING DESTRUCTIONS

(Note: PD 1613 expressly repealed or amended Arts 320-326,

but PD 1744 revived Art 320)
 P a g e | 222

A. ELEMENTS OF ARSONS OF PROPERTY OF SMALL VALUES

1. That an uninhabited hut, storehouse, barn, shed or any

other property is burned

2. That the value of the property burned does not exceed 25

pesos

3. That the burning was done at a time or under

circumstances which clearly exclude all danger of the
fire spreading

B. ELEMENTS OF CRIME INVOLVING DESTRUCTION

1. That the offender causes destruction of the property

2. That the destruction was done by means of:

a. explosion

b. discharge of electric current

c. inundation

d. sinking or stranding of a vessel

e. damaging the engine of the vessel

f. taking up rails from the railway track

g. destroying telegraph wires and posts or those of any

other system

h. other similar effective means of destruction

C. ELEMENTS OF BURNING ONES PROPERTY AS A MEANS TO

COMMIT ARSON
 P a g e | 223

1. That the offender set fire to or destroyed his own property

2. That the purpose of the offender in doing so was to

commit arson or to cause a great destruction

3. That the property belonging to another was burned or

destroyed

D. ELEMENTS OF ARSON

1. That the property burned is the exclusive property of the

offender

2. That (a) the purpose of the offender is burning it is to

defraud or cause damage to another or (b) prejudice is
actually caused, or (c) the thing burned is a building in an
inhabited place

Palattao notes:

Arson is defined as the intentional or malicious destruction of

a property by fire.

Legal effect if death results from arson.

The crime committed is still arson. Death is absorbed in the

crime of arson but the penalty to be imposed ranges from
reclusion perpetua to death. (Sec. 5, P.D. No. 1613)

How arson is established.

Arson is established by proving the corpus delicti, usually in

the form of circumstancial evidence such as the criminal
agency, meaning the substance used, like gasoline,
kerosene or other form of bustible materials which caused
the fire. It can also be in the form of electrical wires,
mechanical, chemical or electronic contrivance designed
 P a g e | 224

to start a fire; ashes or traces of such objects which are

found in the ruins of the burned premises.

Notes:
If the crime of arson was employed by the offender as a
means to kill the offended party, the crime committed is
murder. The burning of the property as the means to kill
the victim is what is contemplated by the word fire
under Article 248 which qualifies the crime to murder.
(People vs. Villarosa, 54 O. G. 3482)

When the burning of the property was done by the offender

only to cause damage but the arson resulted to death of
a person, the crime committed is still arson because the
death of the victim is a mere consequence and not the
intention of the offender. (People vs. Paterno, 47 O. G.
4600)

There is no special complex crime of arson with homicide.

What matters in resolving cases involving intentional arson
is the criminal intent of the offender.

There is such a crime as reckless imprudence resulting in the

commission of arson. When the arson results from reckless
imprudence and it leads to death, serious physical injuries
and damage to the property of another, the penalty to
be imposed shall not be for the crime of arson under P. D.
No. 1613 but rather, the penalty shall be based on Article
365 of the Revised Penal Code as a felony committed by
means of culpa.

MALICIOUS MISCHIEF

Article 326
MALICIOUS MISCHIEF

ELEMENTS:
 P a g e | 225

1. That the offender deliberately caused damage to the

property of another.

2. That such act does not constitute arson or other crimes

involving destruction.

3. That the act damaging anothers property be committed

merely for the sake of damaging it.

Notes:
1. Malicious mischief willful damaging of anothers
property for the sake of causing damage due to hate,
revenge or other evil motive

2. No negligence

3. Example. Killing the cow as revenge

4. If no malice only civil liability

Meaning of damage in malicious mischief.

It means not only loss but a diminution of the value of ones

property. It includes defacing, deforming or rendering it
useless for the purpose for which it was made.

5. But after damaging the thing, he used it = theft

There is destruction of the property of another but there is

no misappropriation. Otherwise, it would be theft if he
gathers the effects of destruction.

6. Damage is not incident of a crime (breaking windows

in robbery)

Article 332
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EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES AGAINST

PROPERTY

Persons exempt from criminal liability

1. Spouse, ascendants and descendants or relatives by

affinity in the same line

2. The widowed spouse with respect to the property w/c

belonged to the deceased spouse before the same
passed into the possession of another

3. Brothers and sisters and brothers-in-law and sisters-in-

law, if living together

Offenses involved in the exemption

1. Theft ( not robbery )

2. Swindling

3. Malicious mischief

Notes:
1. Exemption is based on family relations

For the exemption to apply insofar as brothers and sisters,

and brothers-in-law and sisters-in-law are concerned, they
must be living together at the time of the commission of
the crime of theft, estafa or malicious mischief.

2. Parties to the crime not related to the offended party

still remains criminally liable

3. Persons exempt include:

a. stepfather/mother (ascendants by affinity)

b. adopted children (descendants)

c. concubine/paramour (spouse)
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d. common law spouse (property is part of their

earnings)

Only the relatives enumerated incur no liability if the crime

relates to theft (not robbery), swindling, and malicious
mischief. Third parties who participate are not exempt. The
relationship between the spouses is not limited to legally
married couples; the provision applies to live-in partners.

Estafa should not be complexed with any other crime in

order for exemption to operate.

TITLE ELEVEN
CRIMES AGAINST CHASTITY

Crimes against chastity

1. Adultery (Art. 333);

2. Concubinage (Art. 334);

3. Acts of lasciviousness (Art. 336);

4. Qualified seduction (Art. 337);

5. Simple seduction (Art. 338);

6. Acts of lasciviousness with the consent of the offended

party (Art. 339);

7. Corruption of minors (Art. 340);

8. White slave trade (Art. 341);

9. Forcible abduction (Art. 342);

10. Consented abduction (Art. 343).

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The crimes of adultery, concubinage, seduction, abduction

and acts of lasciviousness are the so-called private crimes.
They cannot be prosecuted except upon the complaint
initiated by the offended party. The law regards the privacy
of the offended party here as more important than the
disturbance to the order of society. For the law gives the
offended party the preference whether to sue or not to sue.
But the moment the offended party has initiated the
criminal complaint, the public prosecutor will take over and
continue with prosecution of the offender. That is why
under Article 344, if the offended party pardons the
offender, that pardon will only be valid if it comes before
the prosecution starts. The moment the prosecution starts,
the crime has already become public and it is beyond the
offended party to pardon the offender.

Article 333
ADULTERY

ELEMENTS:
1. That the woman is married (even if marriage subsequently
declared void)

2. That she has sexual intercourse with a man not her

husband.

3. That as regards the man with whom she has sexual

intercourses, he must know her to be married.

Notes:

There are two reasons why adultery is made punishable by

law. Primarily, it is a violation of the marital vow and
secondarily, it paves the way to the introduction of a
spurious child into the family.

Adultery is a crime not only of the married woman but also

of the man who had intercourse with a married woman
knowing her to be married. Even if the man proves later on
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that he does not know the woman to be married, at the

beginning, he must still be included in the complaint or
information. This is so because whether he knows the
woman to be married or not is a matter of defense and its
up to him to ventilate that in formal investigations or a
formal trial.

If after preliminary investigation, the public prosecutor is

convinced that the man did not know that the woman is
married, then he could simply file the case against the
woman.

The acquittal of the woman does not necessarily result in the

acquittal of her co-accused.
In order to constitute adultery, there must be a joint physical
act. Joint criminal intent is not necessary. Although the
criminal intent may exist in the mind of one of the parties to
the physical act, there may be no such intent in the mind of
the other party. One may be guilty of the criminal intent,
the other innocent, and yet the joint physical act necessary
to constitute the adultery may be complete. So, if the man
had no knowledge that the woman was married, he would
be innocent insofar as the crime of adultery is concerned
but the woman would still be guilty; the former would have
to be acquitted and the latter found guilty, although they
were tried together.

A husband committing concubinage may be required to

support his wife committing adultery under the rule in pari
delicto.

For adultery to exist, there must be a marriage although it

be subsequently annulled. There is no adultery, if the
marriage is void from the beginning.

Adultery is an instantaneous crime which is consummated

and completed at the moment of the carnal union. Each
sexual intercourse constitutes a crime of adultery. Adultery
is not a continuing crime unlike concubinage.
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Illustration:

Madamme X is a married woman residing in Pasay City. He

met a man, Y, at Roxas Boulevard. She agreed to go with
to Baguio City, supposedly to come back the next day.
When they were in Bulacan, they stayed in a motel, having
sexual intercourse there. After that, they proceeded again
and stopped at Dagupan City, where they went to a motel
and had sexual intercourse.

There are two counts of adultery committed in this instance:

one adultery in Bulacan, and another adultery in Dagupan
City. Even if it involves the same man, each intercourse is a
separate crime of adultery.

1. mitigated if wife was abandoned without justification by

the offended spouse (man is entitled to this mitigating
circumstance)

Abandonment without justification is not exempting but only

a mitigating circumstance. One who invokes abandonment
in the crime of adultery hypothetically admits criminal
liability for the crime charged. (U. S. vs. Serrano, et al., 28
Phil. 230)

While abandonment is peculiar only to the accused who is

related to the offended party and must be considered only
as to her or him as provided under Article 62, paragraph 3,
nonetheless, judicially speaking, in the crime of adultery,
there is only one act committed and consequently both
accused are entitled to this mitigating circumstance.
(People vs. Avelino, 40 O.G. Supp. 11, 194)

2. attempted: caught disrobing a lover

There is no frustrated adultery because of the nature of the

offense.

Article 334
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CONCUBINAGE

ELEMENTS:
1. That the man must be married.

2. That he committed any of the following acts:

a. Keeping a mistress in the conjugal dwelling.

b. Having sexual intercourse under scandalous

circumstances with a woman who is not his wife.

c. Cohabiting with her in any other place.

3. That as regards the woman she must know him to be

married.

Article 336
ACTS OF LASCIVIOUSNESS

ELEMENTS:
1. That the offender commits any act of lasciviousness or
lewdness.

2. That it is done under any of the following circumstances:

a. by using force or intimidation, or

b. when the offended party is deprived of reason or

otherwise unconscious, or

c. when the offended party is under 12 years of age.

3. That the offended party is another person of either sex.

Note that there are two kinds of acts of lasciviousness under

the Revised Penal Code: (1) under Article 336, and (2)
under Article 339.

1. Article 336. Acts of Lasciviousness

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Under this article, the offended party may be a man or

a woman. The crime committed, when the act
performed with lewd design was perpetrated under
circumstances which would have brought about the
crime of rape if sexual intercourse was effected, is acts
of lasciviousness under this article. This means that the
offended party is either

(1) under 12 years of age; or

(2) being over 12 years of age, the lascivious acts

were committed on him or her through violence or
intimidation, or while the offender party was
deprived of reason, or otherwise unconscious.

2. Article 339. Acts of Lasciviousness with the Consent of

the Offended Party:

Under this article, the victim is limited only to a woman.

The circumstances under which the lascivious acts
were committed must be that of qualified seduction or
simple seduction, that is, the offender took advantage
of his position of ascendancy over the offender woman
either because he is a person in authority, a domestic,
a househelp, a priest, a teacher or a guardian, or there
was a deceitful promise of marriage which never would
really be fulfilled.

SEDUCTION
Article 337
QUALIFIED SEDUCTION OF A VIRGIN

Two classes of qualified seduction:

1. Seduction of a virgin over 12 and under 18 years of age

by certain persons, such as a person in authority, priest,
teachers etc and
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2. Seduction of a sister by her brother or descendant by her

ascendant, regardless of her age or reputation
(incestuous seduction)

Elements:
1. That the offended party is a virgin, (presumed if she
unmarried and of good reputation.)

2. That she must be over 12 and under 18 years of age.

3. That the offender has sexual intercourse with her.

4. That there is abuse of authority, confidence or

relationship on the part of the offender ( person
entrusted with education or custody of victim; person in
public authority, priest; servant)

Persons liable:

1. Those who abuse their authority:

a. persons in public authority
b. guardian
c. teacher
d. person who, in any capacity, is entrusted with the
education or custody of the woman seduced

2. Those who abused the confidence reposed in them:

a. priest
b. house servant
c. domestic

3. Those who abused their relationship:

a. brother who seduced his sister
b. ascendant who seduced his descendant

This crime also involves sexual intercourse. The offended

woman must be over 12 but below 18 years.

The distinction between qualified seduction and simple

seduction lies in the fact, among others, that the woman is
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a virgin in qualified seduction, while in simple seduction, it is

not necessary that the woman be a virgin. It is enough that
she is of good repute.

For purposes of qualified seduction, virginity does not mean

physical virginity. It means that the offended party has not
had any experience before.

The virginity referred to here, is not to be understood in

so material a sense as to exclude the idea of abduction of
a virtuous woman of a good reputation. Thus, when the
accused claims he had prior intercourse with the
complainant, the latter is still to be considered a virgin (U.S.
vs. Casten, 34 Phil. 808). But if it was established that the girl
had a carnal relations with other men, there can be no
crime of Seduction as she is not a virgin.

Although in qualified seduction, the age of the offended

woman is considered, if the offended party is a descendant
or a sister of the offender no matter how old she is or
whether she is a prostitute the crime of qualified seduction
is committed.

Article 338
SIMPLE SEDUCTION

ELEMENTS:

1. That the offended party is over 12 and under 18 years of

age.

2. That she must be of good reputation, single or widow.

3. That the offender has sexual intercourse with her.

4. That it is committed by means of deceit.

Deceit generally takes the form of unfulfilled promise to

marry. The promise of marriage must serve as the
inducement. The woman must yield on account of the
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promise of marriage or other forms of inducement. (People

vs. Hernandez, 29 Phil. 109)

Where the accused failed to have sex with this

sweetheart over twelve (12) but below eighteen (18) years
old because the latter refused as they were not yet married,
and the accused procured the performance of a fictitious
marriage ceremony because of which the girlfriend yielded,
he is guilty of Simple Seduction. (U.S. vs. Hernandez, 29 Phil.
109). Here, there was deceit employed. This act may now
be considered Rape under R.A. 8353, Sec. 2 par. 6.

A promise of material things in exchange for the womans

surrender of her virtue does not constitute deceit.

If a woman under 18 years of age but over 12 agrees to a

sexual intercourse with a man who promised her precious
jewelries but the man reneges on his promise, there is no
seduction that the woman is of loose morals. (Luis B. Reyes)

Promise of marriage must precede sexual intercourse.

A promise of marriage made by the accused after sexual

intercourse had taken place, or after the woman had
yielded her body to the man by mutual consent will not
render the man liable for simple seduction.

The offended woman must be under 18 but not less than 12

years old; otherwise, the crime is statutory rape.

Unlike in qualified seduction, virginity is not essential in this

crime. What is required is that the woman be unmarried
and of good reputation. Simple seduction is not
synonymous with loss of virginity. If the woman is married,
the crime will be adultery.

Article 339
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ACTS OF LASCIVIOUSNESS WITH THE CONSENT OF THE

OFFENDED PARTY

ELEMENTS:

1. that the offender commits acts of lasciviousness or

lewdness.

2. That the acts are committed upon a woman who is 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. that the offender accomplishes the acts by abuse of

authority, confidence, relationship, or deceit.

When the acts of lasciviousness is committed with the use of

force or intimidation or when the offended party is under 12
years of age, the object of the crime can either be a
woman or a man.

Where the acts of the offender were limited to acts of

lewdness or lasciviousness, and no carnal knowledge was
had; but had there been sexual intercourse, the offense
would have been Seduction, he is guilty of Acts of
Lasciviousness under this article.

The crime of acts of lasciviousness under Article 339 is one

that is done with the consent of the offended party who is
always a woman. The lewd acts committed against her is
with her consent only because the offender took
advantage of his authority, or there was abuse of
confidence, or the employment of deceit, or the offender is
related to the victim.

In the commission of the acts of lasciviousness either by

force or intimidation, or with the consent of the offended
party, there must be no sexual intercourse, or the acts
performed are short of sexual intercourse. In the first
situation, the crime would either be qualified seduction or
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simple seduction if the offender succeeds in having sexual

intercourse with the victim. In these two cases, there is
consent but the same is procured by the offender through
the employment of deceit, abuse of confidence, abuse of
authority or because of the existence of blood relationship.

Article 340
CORRUPTION OF MINORS

Act punishable:

By promoting or facilitating the prostitution or corruption of

persons underage to satisfy the lust of another

It is not required that the offender be the guardian or

custodian of the minor.

It is not necessary that the minor be prostituted or corrupted

as the law merely punishes the act of promoting or
facilitating the prostitution or corruption of said minor and
that he acted in order to satisfy the lust of another.

A single act of promoting or facilitating the corruption

or prostitution of a minor is sufficient to constitute violation of
this article.

What the law punishes is the act of pimp (bugaw) who

facilitates the corruption of a minor. It is not the unchaste
act of the minor which is being punished. So, a mere
proposal to promote or facilitate the prostitution or
corruption of a minor is sufficient to consummate the crime.

Young minor should enjoy a good reputation. Apparently, a

prostitute above 12 and under 18 years of age cannot be
the victim in the crime of corruption of minors.

ABDUCTION
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Article 342
FORCIBLE ABDUCTION

ELEMENTS:
1. That the person abducted is any woman, regardless of her
age, civil status, or reputation.

2. That the abduction is against her will.

3. That the abduction is with lewd designs.

Note: Sexual intercourse is NOT necessary

Crimes against chastity where age and reputation of victim

are immaterial: rape, acts of lasciviousness, qualified
seduction of sister/descendant, forcible abduction

Forcible abduction defined.

It is the taking away of any woman against her will, from her
house or the place where she may be, for the purpose of
carrying her to another place with intent to marry or corrupt
her.

A woman is carried against her will or brought from one

place to another against her will with lewd design.

Unlike in Rape and Seduction, in the crime of

Abduction, whether Forcible or Consented, there is no
sexual intercourse. The acts are limited to taking away from
a place the victim, but the same must be with lewd designs,
that is, with unchaste design manifested by kissing and
touching the victims private parts.

If the element of lewd design is present, the carrying of the

woman would qualify as abduction; otherwise, it would
amount to kidnapping. If the woman was only brought to a
certain place in order to break her will and make her agree
to marry the offender, the crime is only grave coercion
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because the criminal intent of the offender is to force his will

upon the woman and not really to restrain the woman of
her liberty.

Where lewd design was not proved or shown, and the

victim was deprived of her liberty, the crime is Kidnapping
with Serious Illegal Detention under this Article 267, RPC.
The element of lewd designs, which is essential to the crime
of abduction through violence refers to the intention to
abuse the abducted woman. If such intention is lacking or
does not exist, the crime may be illegal detention. It is
necessary to establish the unchaste design or purpose of
the offender. But it is sufficient that the intent to seduce the
girl is present. The evil purpose of the offender may be
established or inferred from the overt acts of the accused.

If the offended woman is under 12 years old, even if she

consented to the abduction, the crime is forcible abduction
and not consented abduction.

TITLE TWELVE
CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Crimes against the civil status of persons

1. Simulation of births, substitution of one child for another

and concealment or abandonment of a legitimate
child (art. 347);

2. Usurpation of civil status (Art. 348);

3. Bigamy (Art. 349);

4. Marriage contracted against provisions of law (Art.

350);

5. Premature marriages (Art. 351);

6. Performance of illegal marriage ceremony (Art. 352).

 P a g e | 240

Article 349
BIGAMY

ELEMENTS:
1. That the offender has been legally married.

2. That the marriage has not been legally dissolved or, 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.
Notes:
1. The crime does not fall within the category of private
crimes that can be prosecuted only at the instance of
the offended party PUBLIC CRIME

For the crime of bigamy to prosper the first marriage must

be valid. If the first marriage is void from the beginning,
such nullity of the marriage is not a defense in a charge of
bigamy. Consequently, when raised as a defense, the
accused should be convicted since until and unless
annulled, the bond of matrimony remains or is
maintained.

Need for judicial declaration of nullity

The second marriage must have all the essential requisites

for validity were it not for the existence of the first
marriage.

2. A simulated marriage is not marriage at all and can be

used as a defense for bigamy
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3. There must be a summary proceeding to declare the

absent spouse presumptively dead for purposes of
remarriage

4. Failure to exercise due diligence to ascertain the

whereabouts of the 1st wife is bigamy through reckless
imprudence

5. A judicial declaration of the nullity of a marriage void ab

initio is now required

6. One convicted for bigamy may be prosecuted for

concubinage as both are distinct offenses

7. One who vouches that there is no legal impediment

knowing that one of the parties is already married is an
accomplice

Article 350
MARRIAGE CONTRACTED AGAINST PROVISIONS OF LAWS

ELEMENTS:
1. That the offender contracted marriage.

2. That he knew at the time that

a. the requirement of the law were not complied with,

or

b. The marriage was in disregard of a legal impediment.

Note: Circumstance qualifying the offense: if either of the

contracting parties obtains the consent of the other by
means of violence, intimidation or fraud
 P a g e | 242

The requirements of the law for a valid marriage are:

1. The legal capacity of the contracting parties;

2. Their consent freely given;

3. Authority of the person performing the marriage; and

4. Marriage license, except in marriage under exceptional

circumstances.

The law further provides that for accused to be liable under

this article, he should not be guilty of bigamy because
otherwise, the crime punished under Article 350 is deemed
absorbed in the bigamy.

Marriages contracted against the provisions of laws

1. The marriage does not constitute bigamy.

2. The marriage is contracted knowing that the

requirements of the law have not been complied with
or in disregard of legal impediments.

3. One where the consent of the other was obtained by

means of violence, intimidation or fraud.

4. If the second marriage is void because the accused

knowingly contracted it without complying with legal
requirements as the marriage license, although he was
previously married.

5. Marriage solemnized by a minister or priest who does not

have the required authority to solemnize marriages.

Article 351
PREMATURE MARRIAGE

Acts punished:
 P a g e | 243

1. A widow who within 301 days from death of husband, got

married or before her delivery, if she was pregnant at the
time of his death

2. A woman whose marriage having been dissolved or

annulled, married before her delivery or within 301 days
after the legal separation

The Supreme Court has already taken into account the

reason why such marriage within 301 days is made
criminal, that is, because of the probability that there
might be a confusion regarding the paternity of the child
who would be born. If this reason does not exist because
the former husband is impotent, or was shown to be sterile
such that the woman has had no child with him, that
belief of the woman that after all there could be no
confusion even if she would marry within 301 days may be
taken as evidence of good faith and that would negate
criminal intent.

Article 84 of the Civil Code provides that no marriage

license shall be issued to a widow until after 300 days
following the death of her husband, unless in the meantime
she has given birth to a child.

Article 353
LIBEL

ELEMENTS:
1. That there must be an imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission,
condition, status, or circumstances.

2. That the imputation must be made publicly.

3. That it must be malicious.

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4. That the imputation must be directed at a natural or

juridical person, or one who is dead.

5. That the imputation must tend to cause the dishonor,

discredit or contempt of the person defamed.
Notes:
1. Libel is a public and malicious imputation of a crime, or
a vice or defect, real or imaginary or any act,
commission, condition, status or circumstances tending
to cause the dishonor, discredit or contempt of a
natural or juridical person, or to blacken the memory of
one who is dead

Character of the words used to make it defamatory.

Words calculated to induce suspicion are more effective in

destroying reputation than false charges directly made.
Ironical and metaphorical language is a favored vehicle for
slander. A charge is sufficient if the words are calculated to
induce the hearer to suppose and understand that the
person against whom they are uttered is guilty of certain
offenses, or are sufficient to impeach his honesty, virtue or
reputation, or to hold him up to public ridicule. (U.S. vs.
OConnell, 37 Phil. 767)

Malice has been defined as a term used to indicate the

fact that the defamer is prompted by personal ill or spite
and speaks not in response to duty but merely to injure the
reputation of the person defamed.

Kinds of Malice.

Malice in law This is assumed and is inferred from the

defamatory character of an imputation. The presumption
of malice attaches to the defamatory statement
especially if it appears to be insulting per se. The law
presumes that the defamer made the imputation without
good intention or justifiable motive.
 P a g e | 245

Malice in fact This refers to malice as a fact. The presence

and existence of personal ill-will or spite may still appear
even if the statement is not defamatory. So, where the
defamatory acts may be presumed from the publication
of the defamatory acts imputed refer to the private life of
the individual, malice may be presumed from the
publication of the defamatory statement because no
one has a right to invade anothers privacy.

Distinction between malice in fact and malice in law

Malice in fact is the malice which the law presumes from

every statement whose tenor is defamatory. It does not
need proof. The mere fact that the utterance or statement
is defamatory negates a legal presumption of malice.

In the crime of libel, which includes oral defamation, there is

no need for the prosecution to present evidence of malice.
It is enough that the alleged defamatory or libelous
statement be presented to the court verbatim. It is the
court which will prove whether it is defamatory or not. If the
tenor of the utterance or statement is defamatory, the
legal presumption of malice arises even without proof.

Malice in fact becomes necessary only if the malice in law

has been rebutted. Otherwise, there is no need to adduce
evidence of malice in fact. So, while malice in law does not
require evidence, malice in fact requires evidence.

Malice in law can be negated by evidence that, in fact, the

alleged libelous or defamatory utterance was made with
good motives and justifiable ends or by the fact that the
utterance was privileged in character.

In law, however, the privileged character of a defamatory

statement may be absolute or qualified.

When the privileged character is said to be absolute, the

statement will not be actionable whether criminal or civil
 P a g e | 246

because that means the law does not allow prosecution on

an action based thereon.

Illustration:
As regards the statements made by Congressmen while
they are deliberating or discussing in Congress, when the
privileged character is qualified, proof of malice in fact will
be admitted to take the place of malice in law. When the
defamatory statement or utterance is qualifiedly privileged,
the malice in law is negated. The utterance or statement
would not be actionable because malice in law does not
exist. Therefore, for the complainant to prosecute the
accused for libel, oral defamation or slander, he has to
prove that the accused was actuated with malice (malice
in fact) in making the statement.

2. Malice is presumed to exist in injurious publications

Where the imputation is based upon matters of public

interest, the presumption of malice does not arise from the
mere publication of the defamatory statement. A matter of
public interest is common property. Malice in fact comes
into play when the statement made is not defamatory per
se, as when the offender resorts to underserved praises or
satirical method of impeaching the virtue, honesty and
reputation of the offended party. It can also appear in the
form of innuendos.

This discussion leads to the conclusion that the

determination of libelous meaning is left to the good
judgment of the court after considering all the
circumstances which lead to the utterance or publication of
the defamatory statement. The question is not what the
writer of an alleged libel means but what the words used by
him mean. The meaning given by the writer or the words
used by him is immaterial. The question is not what the writer
meant but what he conveyed to those who heard or read
him (People vs. Encarnacion, 204 SCRA 1)
 P a g e | 247

3. Publication is the communication of the defamatory

matter to some third person/s

Publication is the communication of the defamatory matter

to a third person or persons. So, the delivery of a
defamatory writing to a typesetter is sufficient publication.
Writing a letter to another person other than the person
defamed is sufficient publication. (See Sazon vs. Court of
Appeals, 255 SCRA 692)

The crime is libel if the defamation is in writing or printed

media.

The crime is slander or oral defamation if it is not printed.

4. Person libeled must be identified. But the publication

need not refer by name to the libeled party. If not
named it must be shown that the description of the
person referred to in the defamatory publication was
sufficiently clear so that at least a 3rd person would
have identified the plaintiff.

When a libel is addressed to several persons, unless they are

identified in the same libel, even if there are several persons
offended by the libelous utterance or statement, there will
only be one count of libel.

If the offended parties in the libel were distinctly identified,

even though the libel was committed at one and the same
time, there will be as many libels as there are persons
dishonored.

Illustration:
If a person uttered that All the Marcoses are thieves," there
will only be one libel because these particular Marcoses
regarded as thieves are not specifically identified.

If the offender said, All the Marcoses the father, mother

and daughter are thieves. There will be three counts of
libel because each person libeled is distinctly dishonored.
 P a g e | 248

If you do not know the particular persons libeled, you

cannot consider one libel as giving rise to several counts of
libel. In order that one defamatory utterance or imputation
may be considered as having dishonored more than one
person, those persons dishonored must be identified.
Otherwise, there will only be one count of libel.

Note that in libel, the person defamed need not be

expressly identified. It is enough that he could possibly be
identified because innuendos may also be a basis for
prosecution for libel. As a matter of fact, even a
compliment which is undeserved, has been held to be
libelous.

5. To presume publication there must be a reasonable

probability that the alleged a libelous matter was
thereby exposed to be read or seen by 3rd persons.

Republication of defamatory article is punishable.

One is liable for publication of defamatory words against

another although he is only repeating what he heard and
names the source of his information. A person who repeats
a slander or libelous publication heard or read from another
is presumed to indorse it. (People vs. Salumbides and
Reanzares, C.A., 55 O.G. 2638)

Criterion to determine whether statements are defamatory

1) words are calculated to induce the hearers to suppose

and understand that the person against who they are
uttered were guilty of certain offenses, or are sufficient
to impeach their honesty, virtue or reputation, or to hold
the person up to public ridicule(US v OConnel)

2 )construed not only as to the expression used but also

with respect to the whole scope and apparent object
of the writer.(P v Encarnacion)
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The test of libelous meanings is not the analysis of a

sentence into component phrases with the meticulous care
of the grammarian or stylist, but the import conveyed by the
entirety of the language to the ordinary reader. (Lacsa vs.
FAC, et al., 161 SCRA 427).

In libel cases, the question is not what the offender

means but what the words used by him mean. ( Sazon vs.
CA, 255 SCRA 692)

Praises undeserved are slander in disguise.

Where the comments are worded in praise of the plaintiff,

like describing him with qualities which plaintiff does not
deserve because of his social, political and economic status
in the community which is too well known to all concerned,
are which intended are intended to ridicule rather than
praise him, the publication is deemed libelous (Jimenez vs.
Reyes, 27 SCRA 52)

When proof of truth is admissible

1. When the act or omission imputed constitutes a crime

regardless of whether the offended party is a private
individual or a public officer;

2. When the offended party is a government employee,

even if the act or omission imputed does not constitute
a crime, provided if its related to the discharged of his
official duties.
Requisites of defense in defamation

1. If it appears that the matter charged as libelous is true;

2. It was published with good motives;

3. It was for justifiable ends.

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If a crime is a private crime, it cannot be prosecuted de

officio. A complaint from the offended party is necessary.
.

Article 358
ORAL DEFAMATION / SLANDER

Two Kinds of Oral Defamation:

1. action of a serious and insulting nature (Grave slander)

2. light insult or defamation not serious in nature (simple

slander)

Factors that determine gravity of the offense:

a) expressions used

b) personal relations of the accused and the offended

party

c) circumstances surrounding the case

Article 359
SLANDER BY DEED

ELEMENTS:
1. That the offender performs any act not included in any
other crime against honor.

2. That such act is performed in the presence of other person

or persons.

3. That such act casts dishonor, discredit or contempt upon

the offended party.
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Notes:

Slander by deed is a defamation committed by the

offender against the complainant through the performance
of any act which casts dishonor, discredit or contempt upon
another person.

Slander by deed refers to performance of an act, not use of

words.

Two kinds of slander by deed

1. Simple slander by deed; and

2. Grave slander by deed, that is, which is of a serious

nature.

Whether a certain slanderous act constitutes slander by

deed of a serious nature or not, depends on the social
standing of the offended party, the circumstances under
which the act was committed, the occasion, etc.

b. The acts of slapping and boxing the woman, a teacher,

in the presence of many people has put her to dishonor,
contempt and ridicule. (P v Costa)

If the acts committed against the offended party caused

her physical injury which did not require medical
attendance, then the crime would be maltreatment which
is classified as slight physical injuries.

c. P v Motita
Accused held a mirror between the legs of
complainant to reflect her private parts. The crowd
laughed. Guilty of slander by deed.

Distinctions:
 P a g e | 252

a. Unjust Vexation-irritation or annoyance/anything that

annoys or irritates without justification.

b. Slander by Deed-irritation or annoyance + attendant

publicity and dishonor or contempt.

c. Acts of lasciviousness-irritation or annoyance + any of 3

circumstance provided in Art335 of RPC on rape
i. use of force or intimidation
ii. deprivation of reason or rendering the offended
unconscious
iii. offended party under 12 yrs of age+lewd designs

Article 360
PERSONS RESPONSIBLE FOR LIBEL

Who are liable:

a. person who publishes, exhibits or causes the
publication or exhibition of any defamation in writing
or similar means(par.1)

b. author or editor of a book or pamphlet

c. editor or business manager of a daily newspaper

magazine or serial publication(par.2)

d. owner of the printing plant which publishes a libelous

article with his consent and all other persons who in any
way participate in or have connection with its publication
(US v Ortiz)

A defamatory statement by itself is not a crime. It is the

undue publication of the defamatory imputation which
makes it a crime. It is therefore in this concept that
proprietors and editors of periodicals are also made
responsible for the appearance of defamatory matters in
any newspaper under their management.
 P a g e | 253

Venue of criminal and civil action for damages in cases of

written defamation:
a. where the libelous article is printed and 1st published
OR

b. where any of the offended parties actually resides at

the time of the commission of the offense
Libel cases are within the original and exclusive jurisdiction
of the Regional Trial Courts. Inferior courts have no
jurisdiction to try written defamation. (People vs.
Hechanova, 54 SCRA 101)

Note: Offended party must file complaint for defamation

imputing a crime which cannot be prosecuted de oficio
(e.g. adultery, concubinage, rape, seduction, abduction,
and acts of lasciviousness)

Under the last paragraph of Article 360, only defamation

consisting of the imputation of private offenses such as
adultery, concubinage, seduction, abduction and acts of
lasciviousness shall be prosecuted by the offended party by
filing a complaint. Outside of this enumeration by law, the
crime is considered a public crime which may be
prosecuted de oficio.

INCRIMINATORY MACHINATIONS

Article363
INCRIMINATING INNOCENT PERSON

ELEMENTS:
1. That the offender performs an act.

2. That by such act he directly incriminates or imputes to

an innocent person the commission of a crime.

3. That such act does not constitute perjury.

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RA4200 The Anti - Wire Tapping Act

Acts punished:

1) any person, not authorized by all the parties to any

private communication or spoken word
a) taps any wire of cable OR

b) uses any other device or arrangement, to secretly

overhear, intercept, or record such communication or
spoken word by using a device commonly known as a
dictaphone or dictagraph or walkie talkie or tape
recorder

2) any person, whether or not a participant in the above-

mentioned acts:

a) knowingly possesses any tape record, wire record,

disc record, or any other such record or copies thereof
of any communication or spoken word

b) replays the same for any other person

c)communicates the contents thereof, whether

complete or partial, to any other person

CRIMINAL NEGLIGENCE

Article 365

ELEMENTS OF RECKLESS IMPRUDENCE:

1. That the offender does or fails to do an act.

2. That the doing of or the failure to do that act is voluntary.

3. That it be without malice.

4. That material damage results.

 P a g e | 255

5. That there is inexcusable lack of precaution on the part of

the offender, taking into consideration

a. his employment or occupation

b. degree of intelligence, physical condition, and

c. other circumstances regarding persons, time and

place.

Distinction between reckless imprudence and negligence:

The two are distinguished only as to whether the danger

that would be impending is easily perceivable or not. If the
danger that may result from the criminal negligence is
clearly perceivable, the imprudence is reckless. If it could
hardly be perceived, the criminal negligence would only be
simple.

There is no more issue on whether culpa is a crime in itself or

only a mode of incurring criminal liability. It is practically
settled that criminal negligence is only a modality in
incurring criminal liability. This is so because under Article 3,
a felony may result from dolo or culpa.