Crim Ii

Criminal Law II TSN
Updated lectures of Judge Rowena Apao- Adlawan based on 2015 4th year review
2nd Exam Coverage
Take a look at what are included in the Crimes

Against Public Morals. Gambling. Importation, Sale,
etc.Grave Scandal. Vagrancy, theres already an
amendment in Article 202.
Art. 196. Importation, sale and possession of

lottery tickets or advertisements. The
penalty of arresto mayor in its maximum
period to prision correccional in its minimum
period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court,
shall be imposed upon any person who shall
import into the Philippine Islands from any
foreign place or port any lottery ticket or
advertisement or, in connivance with the
importer, shall sell or distribute the same.
Chapter One
GAMBLING AND BETTING
Art.
195.
gambling.
What
acts
are
punishable
in
(a) The penalty of arresto mayor or a fine not

exceeding two hundred pesos, and, in case of
recidivism, the penalty of arresto mayor or a
fine ranging from two hundred or six thousand
pesos, shall be imposed upon:
Any person who shall knowingly and with

intent to use them, have in his possession
lottery tickets or advertisements, or shall sell
or distribute the same without connivance
with the importer of the same, shall be
punished by arresto menor, or a fine not
exceeding 200 pesos, or both, in the discretion
of the court.
The possession of any lottery ticket or
advertisement shall be prima facie evidence of
an intent to sell, distribute or use the same in
the Philippine Islands.
1. Any person other than those referred to in

subsections (b) and (c) who, in any manner
shall directly, or indirectly take part in any
game of monte, jueteng or any other form of
lottery, policy, banking, or percentage game,
dog races, or any other game of scheme the
result of which depends wholly or chiefly upon
chance or hazard; or wherein wagers
consisting of money, articles of value or
representative of value are made; or in the
exploitation or use of any other mechanical
invention or contrivance to determine by
chance the loser or winner of money or any
object or representative of value.
Why is Gambling is made a crime? The purpose is to

repress the undermining evil in the social, economic,
and moral wrong of the nation. The aversion of the
State against Gambling is not only following the
Revised Penal Code, it is also made punishable by
special laws. And to make it more difficult for
gamblers to continue their trade, the Civil Code
under Article 2013 up to 2018 provide that no action
can be maintained for the winner for collection of
what he has won on a game of chance. You can find
that in the Civil Code.
2. Any person who shall knowingly permit any

form of gambling referred to in the preceding
subdivision to be carried on in any unhabited
or uninhabited place of any building, vessel or
other means of transportation owned or
controlled by him. If the place where gambling
is carried on has the reputation of a gambling
place or that prohibited gambling is frequently
carried on therein, the culprit shall be
punished by the penalty provided for in this
article in its maximum period.
Article 197. Betting in Sports Contests. This has been

repealed by PD 483. Take a look at Sec. 2.
Section 2. Betting, game-fixing, point-shaving
or game machination unlawful. Game-fixing,
point-shaving, machination, as defined in the
preceding section, in connection with the
games of basketball, volleyball, softball,
baseball; chess, boxing bouts, "jai-alai",
"sipa", "pelota" and all other sports contests,
games or races; as well as betting therein
except as may be authorized by law, is hereby
declared unlawful.
(b) The penalty of prision correccional in its

maximum degree shall be imposed upon the
maintainer, conductor, or banker in a game of
jueteng or any similar game.
(c) The penalty of prision correccional in its
medium degree shall be imposed upon any
person who shall, knowingly and without
lawful purpose, have in his possession and
lottery list, paper or other matter containing
letters, figures, signs or symbols which pertain
to or are in any manner used in the game of
jueteng or any similar game which has taken
place or about to take place.
1
For I know the plans that I have for you.. Plans to prosper you and not to harm you, plans to give you hope and future (Jeremiah 29:11)
Criminal Law II TSN

2nd Exam Coverage
So generally if you are betting in a basketball game

that is not allowed, that is a crime. But no one now
would file a case.
within any other article of this Code.

Take a look at the definition of Grave Scandal.
Art. 198. Illegal betting on horse race. Art. 199.

Illegal cockfighting. Remember these articles have
been repealed or amended by PD 449. There is
nothing more if that.
From Paras: Grave Scandal consists of acts which are

offensive to decency and good customs which,
having been committed publicly, have given rise to
public scandal to persons who have accidentally
witnessed the same.
PD 1602 Simplifying And Providing Stiffer Penalties

For Violation Of The Philippine Gambling Law. But of
course we have to remember that PD 1602 has been
amended by RA 9287, the new law on gambling.
That is the one that we used when one is charged for
betting in a Last two(?) not anymore PD 1602.
It is suggested that the crime of grave scandal is a

crime against morals. Necessarily the offender must
commit the crime in a public place or within the view
of the public. So besides being contrary to morals
and good customs, the act or acts must committed
must be within the view of the public as the
publicity of the act is an element of the crime.
Such character demoralizes the sensibility of the
persons present and witnessing the incident.
Take a look at definition of Gambling. Gambling is a

game or device or method, the results of which
depends wholly or chiefly upon chance or
hazard. So if the game depends upon skill or ability
of the players, there can be no gambling. This
definition of gambling refers to games which
have no name or though it has a name, the
same is not known to the authorities. The
manner of determining whether the game
played is prohibited or not is whether the
result shall depend wholly or chiefly upon
chance or hazard.
Take note ha, the act must be those that constitute

public scandal of the persons witnessing them. Public
Scandal.
What are the elements of Grave Scandal?
1. Offender performs an act or acts.
2. Such act or acts are highly scandalous as
offending against decency or good customs.
3. The highly scandalous conduct is not
expressly falling within any other article of
this Code.
4. The act or acts complained of be committed
in a public place or within the public
knowledge or view.
In my experience as a trial court judge, there is one

kind of gambling that is prevalent now. In other
provinces, the fight of damang. They would bet a
minimum P50,000. There was one raid, and all of
them present, including the one who protected(?) it
is also included. And they asked, wala man ni sa
balaod maam. Gambling pa rin. Magpa away ug
damang.
All the requisites must conform.

The word decency means propriety of conduct;
appropriate behavior as consistent with the accepted
norms of modesty and good taste. The word
customs
mean established
usage, social
conventions carried on by tradition and enforced by
social disapproval of any violation thereof.
Lets proceed with Crimes Against Decency and Good

Customs. What are the offenses against decency and
good customs? We have three:
Remember the crime must be performed publicly. If

it is done privately, then Art. 200 is not violated. Now
if you perform those acts in a couch and somebody
saw you, is Art 200 violated? No Article 200 is not
violated. Because this circumstance does not
constitute the degree of publicity.
1. Grave Scandal (Art 200)

2. Immoral doctrines, obscene publications
and exhibitions and indecent shows.
(Art 201)
3. And that which is provided in Art 202,
Prostitution.
4.
Art. 200. Grave scandal. The penalties of
arresto mayor and public censure shall be
imposed upon any person who shall offend
against decency or good customs by any highly
scandalous conduct not expressly falling
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 RPC. Just like Unjust
Vexation, Grave Scandal is a crime of last resort.
2
Criminal Law II TSN

2nd Exam Coverage
Distinction must be made as to what place the act

was committed: whether in a public place or in a
private place.
private room because it is still open to the public

view.
1996 Bar Q: Pia, a bold actress living on top floor of
a plush condo in Makati sunbathed naked at its
penthouse every Sunday morning. She was unaware
that the business executives holding office at the
adjoining tall buildings reported to office every
Sunday morning and, with the use of powerful
binoculars, kept on gazing at her while she
sunbathed. Eventually, her sunbathing became the
talk of the town?
Public Place: the criminal liability arises

irrespective of whether that immoral act is
discovered by the public. In short, public view
is not required.
Example: if you will have sex inside your vehicle
while such vehicle is parked outside SM. tinted man,
walay nakakita kay tinted. tinted lage pero ga uyog
uyog man nang sakyanan diha. Now is crime
committed because there is no public view? There is
no public view but it is committed in a public place.
Public view is not required. So what is the crime?
Grave Scandal.
1. What crime did Pia commit?

Pia did not commit a crime. The felony closest to
making Pia criminally liable is Grave Scandal, but
then such act is not to be considered as highly
scandalous and offensice against decency and
good customs. In the first place, it was not done
in a public place and within public knowledge or
view. As a matter of fact it was discovered by the
executives accidentally and they have to use
binoculars to have public and full view of Pia
sunbathing in nude.
Private Place: When the act offensive to

decency is done in a private place, public view
or public knowledge is required.
When you say public view, it does not require
numerous persons. Even if there is only one person
who discovered the offensive act, for as long as that
person is not an intruder, Grave Scandal is
committed provided the act does not fall under any
of the crime under the RPC.
2. What crime if any did the business executives
commit?
The business executives did not commit any

crime. Their acts could not be acts of
lasciviousness as there was no overt lustful act;
or slander as the eventual talk of the town
resulting from her sunbathing is not directly
imputed to the business executives and besides,
such topic is not intended to defame Pia or to
ridicule.
Illustration 1: Man and woman enters movie house

which is a public place. They seated on the darkest
place of the balcony. And when there, the man
started making acts of lasciviousness on the woman.
If it was against the will of the woman, Acts

of Lasciviousness.
But if there is mutuality, this constitutes
Grave Scandal. Public view is not necessary
so long as it is done in a public place.
201. Immoral doctrines, obscene

publications and exhibitions and indecent
shows. The penalty of prision mayor or a
Art.
Illustration 2: a man and a woman went to Luneta,

and slept there. They covered themselves with
blanket and made the grass their conjugal bed.
Grave scandal is committed.
fine ranging from six thousand to twelve

thousand pesos, or both such imprisonment
and fine, shall be imposed upon:
(1) Those who shall publicly expound or
proclaim doctrines openly contrary to
public morals;
(2) (a) the authors of obscene literature,
published with their knowledge in any
form; the editors publishing such literature;
and
the
owners/operators
of
the
establishment selling the same;
(b) Those who, in theaters, fairs,
cinematographs or any other place, exhibit,
indecent or immoral plays, scenes, acts or
shows, whether live or in film, which are
prescribed by virtue hereof, shall include
those which (1) glorify criminals or
condone crimes; (2) serve no other purpose
but to satisfy the market for violence, lust
or pornography; (3) offend any race or
Just like what happened in Buhangin. Our Lumad

friends went down from the hinterlands. While the
DSWD people were conducting meeting or whatever,
some of our Lumad friends were having sexual
intercourse. And they used malong to cover
themselves.
Another: In an apartment, the lady was undressing
in her room without shutting the blinds. She does
this every 8pm, so that every night there are people
outside gathering and looking at her silhouette. She
was charged with Grave Scandal. Her defense was
she was doing it in her own house.
The suggested answer is Grave Scandal is still
committed. It is no defense that she is doing it in her
3
Criminal Law II TSN

2nd Exam Coverage
with the stage dimly lighted where a woman, Virginia

Aparrici, was swaying to and fro with the middle part
of her body, dancing her hips, and sometimes raising
her feet, one after the other.
religion; (4) tend to abet traffic in and use

of prohibited drugs; and (5) are contrary to
law, public order, morals, and good
customs,
established
policies,
lawful
orders, decrees and edicts;
(3) Those who shall sell, give away or
exhibit films, prints, engravings, sculpture
or literature which are offensive to morals.
(As amended by PD Nos. 960 and 969).
I believe some of you have not yet entered a floor

show. (Judge went to a floor show, story about client
who owns a floor show in Cabaguio. Ang ilang calling
card: if your husband does not love you, we do.
They were raided by CIDG together with
photographersGodzillaHotlegsexotic beauty)
What are the acts punished under Art 201? [see

codal]
The accused had nothing on except nylon patches to

cover her breast and too abbreviated pair of nylon
panties to interrupt her stark nakedness, and the
spectators were all men. Clearly it was a mens show.
And they were howling and shouting, Sige muna,
sige, nakakalibog. In the course of her performance,
the police stopped the show and asked the accused
to put on her dress and surrender to her the panty
and bra. The accused was charged for violation of
Article 201.
Now who are the persons liable here?

1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals
2. the authors of obscene literature, published
with their knowledge
3. the editors publishing such literature
4. the owners or operators of the establishment
selling the same
5. those who, in theaters, fairs, cinematographs
or any other place, shall exhibit, indecent or
immoral plays whether in film, forms, or live
SC said yes the accused has exhibited immoral and

indecent acts it may be considered that nudity itself
is not inherently indecent or obscene. Mere nudity in
painting and sculpture is not obscenity as it may be
considered as pieces or art but the artistic, the
aesthetic and pulchritude in the nude body of a living
woman may readily be transformed into an indecent
and obscene object, by posture and movements of
such body which produce perceptible and discernable
action in the public or audience witnessing the same.
Illustration: Vina Theater exhibited pornographic

films. It was raided and there were also films
confiscated. This is an example of violation of Art
201. The owner of the theater is liable for indecent
exhibition.
Illustration: Rhonda, dancer in club, danced naked in
front of her customers. She is liable under Art 201.
Because she is performing an indecent show.
The object of the law is to protect the morals of the

public, the reaction of the public therefore during the
performance and the dance should be made a gauge
in determination whether the appellants dancing was
indeed indecent or immoral. This is what we call the
reaction test. We have the Kottinger Rule and then
we have the reaction test. The reaction of the people
who were there, the audience that were there is the
gauge or barometer won art 201 is violated.
Another: Jacques publication published magazines of

nude men and women as well as stories of sexual
desire and experiences. The owner, author, and
editor is liable for obscene publication under Art 201.
Now as earlier mentioned, there must be publicity. It
means the act/s done must come to the knowlesge
of third persons.
But take a look fast forward muna, what if it was an

70 woman having a pole vaulting act? Do you think it
will ignite the men there in that show? Or an 80 year
old woman? Ma imagine nimu na Hunger Games sila
si lola ang iyang gi.alsa? iyang partner si lola
remember? What if kadto? Way lami noh? Walay lami
kng ang lola or ang bata kay mag lips to lips.. wala..
What is the test of obscenity? Obscenity means

something offensive to chastity, decency or good
taste. It must have the tendency to corrupt those
whose minds are susceptible to such immoral
influences.
Now what is the test of obscenity? If you remember
the Kottinger rule in Crim 2. The test is if the
material charged as obscene has the tendency to
deprave and corrupt those whose minds are open to
or to whose hands the material may come.
So its more on the reaction test on the audience.

Now as earlier mentioned in committing this crime,
there must be publicity ha. It means that the act or
acts done must come to the knowledge of a third
person.
PP v Aparrici: Detectives A and B accompanied by

photographers of a newspaper in order to observed
what was exhibited there. They found the place dark
Now the other act which is being prohibited here in

Article 201 is those who shall publicly expound
4
Criminal Law II TSN

2nd Exam Coverage
or proclaim doctrines openly contrary to public

morals. You believe in something that cannot be
accepted morally. Example, you believe that is proper
to have wife-swapping or having sex with your
relatives, that is incestuous and you espouse this
kind of belief in public. Then, you will be committing
violation of art 201.
(ee) other analogous visual depiction; or

(ii) Audio representation of a person who is or is
represented as being a child and who is engaged in
or is represented as being engaged in explicit sexual
activity, or an audio representation that advocates,
encourages or counsels any sexual activity with
children which is an offense under this Act.
Now remember, the authors of obscene

literature published with their knowledge in
any form, the editors publishing the literature
and
the
owners/operators
of
the
establishment selling the same will also be liable.
Such representation includes audio recordings and

live audio transmission conveyed through whatever
medium including real-time internet communications;
(iii) Written text or material that advocates or
counsels explicit sexual activity with a child and
whose dominant characteristic is the description, for
a sexual purpose, of an explicit sexual activity with a
child.
Now if you draw erotic pictures or write erotic stories

and have it published with your consent, you are also
liable. If there is no consent, then, you are not liable
but the publisher who publishes it will be criminally
liable. Now those who shall sell give away or exhibit
films prints engravings sculpture or literature which is
offensive to morals.
(2) As to content?
(i) It includes representation of a person who is,
appears to be, or is represented as being a child, the
dominant characteristic of which is the depiction, for
a sexual purpose, of:
In relation to that we have RA 9775 AN ACT

DEFINING
THE
CRIME
OF
CHILD
PORNOGRAPHY, PRESCRIBING PENALTIES
THEREFOR AND FOR OTHER PURPOSES
(aa) the sexual organ or the anal region, or a

representation thereof;
So what is child pornography? (BQ)
(bb) the breasts, or a representation of the breasts,

of a female person.
Sec 3 (b) "Child pornography" refers to any

public or private representation, by whatever
means, of a child engaged in real or simulated
explicit sexual activities or any representation
of the sexual parts of a child for primarily
sexual purposes.
So what does explicit sexual activity include?

Explicit sexual activity refers to actual or
simulated ( insofar as to form) acts. Including:
(1) Sexual intercourse or lascivious act
including, but not limited to, contact involving
genital to genital, oral to genital, anal to
genital or oral to anal, whether between
persons of the same or opposite sex;
(c) "Child pornography materials" refers to the

means
and
methods
by
which
child
pornography is carried out:
(1) As to form:
(2) Bestiality;
(i) Visual depiction - which includes not only images

of real children but also digital image, computer
image or computer-generated image that is
indistinguishable from that of real children engaging
in an explicit sexual activity. Visual depiction shall
include:
(3) Masturbation;
(4) Sadistic or masochistic abuse;
(5) Exhibition of the genitals, buttocks, breast,
pubic area and/or anus; or
(aa) undeveloped film and videotapes;
(6) Use of any object or instrument for

lascivious acts.
(bb) data and/or images stored on a computer disk

or by electronic means capable of conversion into a
visual image;
Now, there are unlawful acts that are being

enumerated under section 4 of RA 9775
(cc) photograph, film, video, picture, digital image or

picture, computer image or picture, whether made or
produced by electronic, mechanical or other means;
Sec. 4. Unlawful or Prohibited Acts. - It shall

be unlawful for a person to commit any of the
following acts:
(dd) drawings, cartoons, sculptures or paintings

depicting children;
5
Criminal Law II TSN

2nd Exam Coverage
(a) To hire, employ, use, persuade, induce or

coerce a child to perform in the creation or
production of child pornography;
Pandering" refers to the act of offering,

advertising,
promoting,
representing
or
distributing through any means any material
or purported material that is intended to cause
another to believe that the material or
purported material contains any form of child
pornography, regardless of the actual content
of the material or purported material.
(b) To produce, direct, manufacture or create

any form of child pornography and child
pornography materials
(c) To sell, offer, advertise and promote child
pornography and child pornography materials;
Now Ill hold you responsible familiarize yourself with

the prohibited acts punishable under RA 9775.
(d) To possess, download, purchase, reproduce

or make available child pornography materials
with the intent of selling or distributing them;
Section 4. Unlawful or Prohibited Acts. It shall be

unlawful for any person:
(e) To publish, post, exhibit, disseminate,

distribute, transmit or broadcast child
pornography or child pornography materials;
(a) To hire, employ, use, persuade, induce or coerce

a child to perform in the creation or production of
any form of child pornography;
(f) To knowingly possess, view, download,

purchase or in any way take steps to procure,
obtain or access for personal use child
pornography materials; and
(b) To produce, direct, manufacture or create any

form of child pornography;
(c) To publish offer, transmit, sell, distribute,
broadcast, advertise, promote, export or import any
form of child pornography;
(g) To attempt to commit child pornography by

luring or grooming a child.
(d) To possess any form of child pornography with

the intent to sell, distribute, publish, or broadcast:
Provided. That possession of three (3) or more
articles of child pornography of the same form shall
be prima facie evidence of the intent to sell,
distribute, publish or broadcast;
Ok now there is what we call in that law we have this

internet caf or kiosk. What is that?
"Internet caf or kiosk" refers to an
establishment that offers or proposes to offer
services to the public for the use of its
computer/s or computer system for the
purpose of accessing the Internet, computer
games or related services.
(e) To knowingly, willfully and intentionally provide a

venue for the commission of prohibited acts as, but
not limited to, dens, private rooms, cubicles,
cinemas, houses or in establishments purporting to
be a legitimate business;
Judge: the purpose is for child pornography.
(f)
For
film
distributors,
theaters
and
telecommunication companies, by themselves or in
cooperation with other entities, to distribute any form
of child pornography;
Now, there is another term that I want you to be

familiar with. What is grooming?
"Grooming" refers to the act of preparing a
child or someone who the offender believes to
be a child for a sexual activity or sexual
relationship
by
communicating
child
pornography. It includes online enticement, or
enticement through any other means.
(g) For a parent, legal guardian or person having

custody or control of a child to knowingly permit the
child to engage, participate or assist in any form of
child pornography;
(h) To engage in the luring or grooming of a child;
We also have under this law the word luring.
(i) To engage in pandering of any form of child

pornography;
"Luring" refers to the act of communicating, by

means of a computer system, with a child or
someone who the offender believes to be a
child for the purpose of facilitating the
commission of a sexual activity or production
of child pornography.
(j) To willfully access any form of child pornography;

(k) To conspire to commit any of the prohibited acts
stated in this section. Conspiracy to commit any form
of child pornography shall be committed when two
(2) or more persons come to an agreement
concerning the commission of any of the said
prohibited acts and decide to commit it; and
(l) To possess any form of child pornography.
Another term which all of us should be familiar with.

We have pandering
6
Criminal Law II TSN

2nd Exam Coverage
Lets go to 2011 Bar Question: Mr. P owns a boarding

house where he knowingly allowed children to be
videotaped while simulating explicit sexual activities.
What is Mr. P's criminal liability, if any?
persons of the same or opposite sex;
(A) Corruption of minors under the Penal Code
(4) sadistic or masochistic abuse;
(B) Violation of the Child Pornography Act
(5) lascivious exhibition of the genitals,

buttocks, breasts, pubic area and/or anus; or
(2) bestiality;
(3) masturbation;
(C) Violation of the Child Abuse Law
(6) use of any object or instrument for

lascivious acts
(D) None.
(d) Internet address refers to a website,

bulletin board service, internet chat room or
news group, or any other internet or shared
network protocol address.
Now, theres also another portion of that law, Section

5, it talks about syndicated child pornography. Just
like in estafa or illegal recruitment
(e) Internet cafe or kiosk refers to an

establishment that offers or proposes to offer
services to the public for the use of its
computer/s or computer system for the
purpose of accessing the internet, computer
games or related services.
Section 5. Syndicated Child Pornography - The

crime of child pornography is deemed
committed by a syndicate if carried out by a
group of three (3) or more persons conspiring
or confederating with one another and shall be
punished under Section 15(a) of this Act.
(f) Internet content host refers to a person

who hosts or who proposes to host internet
content in the Philippines.
(g) Internet service provider (ISP) refers to
a person or entity that supplies or proposes to
supply, an internet carriage service to the
public.
Section 3. Definition of Terms.

(a) Child refers to a person below eighteen
(18) years of age or over, but is unable to fully
take care of himself/herself from abuse,
neglect, cruelty, exploitation or discrimination
because of a physical or mental disability or
condition.
(h) Grooming refers to the act of preparing a

child or someone who the offender believes to
be a child for sexual activity or sexual
relationship by communicating any form of
child
pornography.
It
includes
online
enticement or enticement through any other
means.
For the purpose of this Act, a child shall also

refer to:
(1) a person regardless of age who is
presented, depicted or portrayed as a child as
defined herein; and
(i) Luring refers to the act of communicating,

by means of a computer system, with a child
or someone who the offender believes to be a
child for the purpose of facilitating the
commission of sexual activity or production of
any form of child pornography.(2) Bestiality;
(2) computer-generated, digitally or manually

crafted images or graphics of a person who is
represented or who is made to appear to be a
child as defined herein.
(j) Pandering refers to the act of offering,

advertising,
promoting,
representing
or
distributing through any means any material
or purported material that is intended to cause
another to believe that the material or
purported material contains any form of child
pornography, regardless of the actual content
of the material or purported material.
(b) Child pornography refers to any

representation, whether visual, audio, or
written combination thereof, by electronic,
mechanical, digital, optical, magnetic or any
other means, of child engaged or involved in
real or simulated explicit sexual activities.
(c) Explicit Sexual Activity includes actual or
simulated
(k) Person refers to any natural or juridical

entity.
(1) As to form:
(i) sexual intercourse or lascivious act
including, but not limited to, contact involving
genital to genital, oral to genital, anal to
genital, or oral to anal, whether between
Just familiarize yourself on the terms and then the

prohibited acts.
7
Criminal Law II TSN

2nd Exam Coverage
Now to continue with our discussion under article

201 Im sure you are familiar with the case of
Ladlad LGBT vs Comelec. 2010, you have taken
this up in your consti law dba??
same was given by such person's.cralaw

(e) "Private area of a person" means the naked
or undergarment clad genitals, public area,
buttocks
or
female
breast
of
an
individual.cralaw
(f) "Under circumstances in which a person
has a reasonable expectation of privacy"
means believe that he/she could disrobe in
privacy, without being concerned that an
image or a private area of the person was
being captured; or circumstances in which a
reasonable person would believe that a private
area of the person would not be visible to the
public, regardless of whether that person is in
a public or private place.
Sec. 4. Prohibited Acts. - It is hereby
prohibited and declared unlawful for any
person:
(a) To take photo or video coverage of a
person or group of persons performing sexual
act or any similar activity or to capture an
image of the private area of a person/s such as
the naked or undergarment clad genitals,
public area, buttocks or female breast without
the consent of the person/s involved and
under circumstances in which the person/s
has/have a reasonable expectation of privacy;
(b) To copy or reproduce, or to cause to be
copied or reproduced, such photo or video or
recording of sexual act or any similar activity
with or without consideration;
(c) To sell or distribute, or cause to be sold or
distributed, such photo or video or recording
of sexual act, whether it be the original copy
or reproduction thereof; or
(d) To publish or broadcast, or cause to be
published or broadcast, whether in print or
broadcast media, or show or exhibit the photo
or video coverage or recordings of such sexual
act or any similar activity through VCD/DVD,
internet, cellular phones and other similar
means or device.
The prohibition under paragraphs (b), (c) and
(d) shall apply notwithstanding that consent
to record or take photo or video coverage of
the same was given by such person/s. Any
person who violates this provision shall be
liable for photo or video voyeurism as defined
herein.cralaw
Sec.
5. Penalties. The
penalty
of
imprisonment of not less that three (3) years
but not more than seven (7) years and a fine
of not less than One hundred thousand pesos
(P100,000.00) but not more than Five hundred
thousand pesos (P500,000.00), or both, at the
discretion of the court shall be imposed upon
any person found guilty of violating Section 4
of this Act.cralaw
If the violator is a juridical person, its license
One point is that this case tackles also article 201 not
only the constitutional side but also the criminal side
of the alleged immoral committed by the LGBT
community.
Another law is RA 9995 AN ACT DEFINING AND
PENALIZING THE CRIME OF PHOTO AND
VIDEO VOYEURISM, PRESCRIBING PENALTIES
THEREFOR, AND FOR OTHER PURPOSES
REPUBLIC ACT NO. 9995

AN ACT DEFINING AND PENALIZING THE
CRIME OF PHOTO AND VIDEO VOYEURISM,
PRESCRIBING PENALTIES THEREFOR, AND
FOR OTHER PURPOSES
Be it enacted by the Senate and House of

Representative of the Philippines in Congress
assembled:
Section 1. Short Title. - This Act shall be known
as the "Anti-Photo and Video Voyeurism Act of
2009".cralaw
Sec. 2. Declaration of Policy. - The State values
the dignity and privacy of every human person
and guarantees full respect for human rights.
Toward this end, the State shall penalize acts
that would destroy the honor, dignity and
integrity of a person.
Sec. 3. Definition of Terms. - For purposes of
this Act, the term:
(a) "Broadcast" means to make public, by any
means, a visual image with the intent that it
be viewed by a person or persons.cralaw
(b) "Capture" with respect to an image, means
to videotape, photograph, film, record by any
means, or broadcast.cralaw
(c) "Female breast" means any portion of the
female breast.cralaw
(d) "Photo or video voyeurism" means the act
of taking photo or video coverage of a person
or group of persons performing sexual act or
any similar activity or of capturing an image of
the private area of a person or persons without
the latter's consent, under circumstances in
which such person/s has/have a reasonable
expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video
coverage or recordings of such sexual act or
similar activity through VCD/DVD, internet,
cellular phones and similar means or device
without the written consent of the person/s
involved, notwithstanding that consent to
record or take photo or video coverage of
8
Criminal Law II TSN

2nd Exam Coverage
"Photo or video voyeurism" means the act of

taking photo or video coverage of a person or
group of persons performing sexual act or any
similar activity or of capturing an image of the
private area of a person or persons without the
latter's consent, under circumstances in which
such
person/s has/have
a reasonable
expectation of privacy, or the act of selling,
copying, reproducing, broadcasting, sharing,
showing or exhibiting the photo or video
coverage or recordings of such sexual act or
similar activity through VCD/DVD, internet,
cellular phones and similar means or device
without the written consent of the person/s
involved, notwithstanding that consent to
record or take photo or video coverage of
same was given by such person.
or franchise shall be automatically be deemed

revoked and the persons liable shall be the
officers thereof including the editor and
reporter in the case of print media, and the
station manager, editor and broadcaster in the
case of a broadcast media.cralaw
If the offender is a public officer or employee,
or
a
professional,
he/she
shall
be
administratively liable.cralaw
If the offender is an alien, he/she shall be
subject to deportation proceedings after
serving his/her sentence and payment of
fines.cralaw
Sec. 6. Exemption. - Nothing contained in this
Act, however, shall render it unlawful or
punishable for any peace officer, who is
authorized by a written order of the court, to
use the record or any copy thereof as evidence
in any civil, criminal investigation or trial of
the crime of photo or video voyeurism:
Provided, That such written order shall only be
issued or granted upon written application and
the examination under oath or affirmation of
the applicant and the witnesses he/she may
produce, and upon showing that there are
reasonable grounds to believe that photo or
video voyeurism has been committed or is
about to be committed, and that the evidence
to be obtained is essential to the conviction of
any person for, or to the solution or prevention
of such, crime.cralaw
Sec. 7. Inadmissibility of Evidence. - Any
record, photo or video, or copy thereof,
obtained or secured by any person in violation
of the preceding sections shall not be
admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing
or investigation.cralaw
Sec. 8. Separability Clause. - If any provision
or
part
hereof
is
held
invalid
or
unconstitutional, the remaining provisions not
affected thereby shall remain valid and
subsisting.cralaw
Sec.
9. Repealing
Clause. Any
law,
presidential decree or issuance, executive
order, letter of instruction , administrative
order, rule or regulation contrary to or
inconsistent with the provisions of this Act is
hereby repealed, modified or amended
accordingly.cralaw
Sec. 10. Effectivity Clause. - This Act shall take
effect fifteen (15) days after its complete
publication in the Official Gazette or in two(2)
newspapers of general circulation.
You know the history why RA 9995 existed noh? This

is the history of Hayden Kho and Katrina halili this is
why there is now The Anti voyeurism act. And you
know who authored this law. Now in jail, bong revilla
Now the law uses the word broadcast what does it
mean?
"Broadcast" means to make public, by any
means, a visual image with the intent that it
be viewed by a person or persons.
Judge tells a story when she was a private
practitioner she had a client who was the subject of a
cellphone video. The man (client) having sex with the
mistress. The mistress was making a video out of it.
Clients genital was exposed as well as the fellatio.
This was before ra 9775 woman sent a cd to judge
(jungle2 na)
Also another case involving a minor, (sent pictures
and videos) also before RA 9775 ( ra 7610 was
used). What happened? Prior the indictment, the
case was settled for 5 million judge was given
250k moral of the story- never underestimate a
particular case
Now, what do you mean by capture?
"Capture" with respect to an image, means to
videotape, photograph, film, record by any
means, or broadcast.
Now, take a look, the first act speaks of under
circumstances in which such person/s has/have a
reasonable expectation of privacy, what does this
mean?
(f) "Under circumstances in which a person
has a reasonable expectation of privacy"
means believe that he/she could disrobe in
privacy, without being concerned that an
image or a private area of the person was
Define photo or video voyeurism.
9
Criminal Law II TSN

2nd Exam Coverage
being captured; or circumstances in which a

reasonable person would believe that a private
area of the person would not be visible to the
public, regardless of whether that person is in
a public or private place.
or distributed, such photo or video or

recording of sexual act, whether it be the
original copy or reproduction thereof; or
(d) To publish or broadcast, or cause to be
published or broadcast, whether in print or
broadcast media, or show or exhibit the
photo or video coverage or recordings of
such sexual act or any similar activity
through
VCD/DVD,
internet,
cellular
phones and other similar means or device.
For example, we are in a public place and someone

will videotape my bilahan here and afterward I
broadcast na. or just like in the place of my client,
nag shower2 silang duha while having a videotape
there. That actually constitutes voyeurism.
So we are expected to disrobe in the cubicle in the
comfort room so kung wala yan unsaon na pag.ihi.
beh daw? Judge then tells about an incident in the
canteen taking a picture underneath a girls dress.
That is voyeurism and then afterwards he broadcasts
it. That is not allowed. If you will do that, you will
become liable.
The prohibition under paragraphs (b), (c) and

(d) shall apply notwithstanding that consent
to record or take photo or video coverage of
the same was given by such person/s. Any
person who violates this provision shall be
liable for photo or video voyeurism as defined
herein.
(e) "Private area of a person" means the naked

or undergarment clad genitals, pubic area,
buttocks or female breast of an individual.
Take note: Consent to record or take photo/video is

not an exception.
So its not necessary that the taking will be done in

private. It can be done here. (Example: If Judge
takes a picture of a students private area from her
desk and then she broadcasted it.) Were in public
and I broadcasted it. Or plunging necklines and start
broadcasting it by sending it to some. That is
covered under this law.
What if the photo shows the breast of the man? The

law only covers female breasts.
Section 6. Exemption. - Nothing contained in
this Act, however, shall render it unlawful or
punishable for any peace officer, who is
authorized by a written order of the court, to
use the record or any copy thereof as evidence
in any civil, criminal investigation or trial of
the crime of photo or video voyeurism:
Provided, That such written order shall only be
issued or granted upon written application and
the examination under oath or affirmation of
the applicant and the witnesses he/she may
produce, and upon showing that there are
reasonable grounds to believe that photo or
video voyeurism has been committed or is
about to be committed, and that the evidence
to be obtained is essential to the conviction of
any person for, or to the solution or prevention
of such, crime.
If there is an undergarment like briefs or panties

covering the private parts, this is still covered by the
law. Based on the definition. The gentals, pubic area,
buttocks or female breast of an individual may be
naked or clad with undergarment.
Section 4. Prohibited Acts. - It is hereby
prohibited and declared unlawful for any
person:
(a) To take photo or video coverage of a
person or group of persons performing
sexual act or any similar activity or to
capture an image of the private area of a
person/s
such
as
the
naked
or
undergarment clad genitals, public area,
buttocks or female breast without the
consent of the person/s involved and
under circumstances in which the person/s
has/have a reasonable expectation of
privacy;
Section 7. Inadmissibility of Evidence. - Any

record, photo or video, or copy thereof,
obtained or secured by any person in violation
of the preceding sections shall not be
admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing
or investigation.
(b) To copy or reproduce, or to cause to be

copied or reproduced, such photo or video
or recording of sexual act or any similar
activity with or without consideration;
Under the exclusionary rule, it is inadmissable.

2010 Bar Exam question: A widower of ten years,
septuagenarian Canuto felt that he had license to
engage in voyeurism. If not peeping into his
(c) To sell or distribute, or cause to be sold

10
Criminal Law II TSN

2nd Exam Coverage
neighbors rooms through his powerful single-cylinder

telescope, he would trail young, shapely damsels
along the hallways of shopping malls. While going up
the escalator, he stayed a step behind a mini-skirted
one, and in a moment of excitement, put his hand on
her left hip and massaged it. The damsel screamed
and hollered for help. Canuto was apprehended and
brought up on inquest. May he be liable for violation
of RA 9995?
Code, shall be found loitering in any

inhabited or uninhabited place belonging
to another without any lawful or justifiable
purpose;
5. Prostitutes.
For the purposes of this article, women who,
for money or profit, habitually indulge in
sexual intercourse or lascivious conduct, are
deemed to be prostitutes.
Answer: No. The acts committed by Canuto do not

fall under the definition of voyeurism nor under the
prohibited acts enumerated under Sec. 4. There was
no taking of photo or video coverage of a person
performing a sexual act, etc. If at all, he committed
only Acts of Lasciviousness because obviously the
element of lewdness is present in this case.
Any person found guilty of any of the offenses

covered by this articles shall be punished by
arresto menor or a fine not exceeding 200
pesos, and in case of recidivism, by arresto
mayor in its medium period to prision
correccional in its minimum period or a fine
ranging from 200 to 2,000 pesos, or both, in
the discretion of the court.
Lets go to Art. 202.

People vs. Evangeline Siton (Sept. 18, 2009)
This is special because this came from Davao City
decided by Judge Europa of RTC Branch 11. What
happened here?
(From Previous tsn: As we have said, Article 202

paragraph 2 has already been decriminalized when
RA 10158, An Act Decriminalizing Vagrancy, was
passed into law on March 27, 2007. It declares that
all cases pending in courts nationwide should be
ordered dismissed.)
Commercial sex workers in Anda Street. Upon

pressure of some NGOs, San Pedro Policement
rounded up Anda St. Among them who were rounded
up was Evangeline Siton, et al. They were
subsequently charged for violation of Art. 202 before
the MTC. The accused, through counsel, filed a
Motion to Quash the information on the ground that
the information charging them was vague and Art.
202(2) is vague. Take a look at Art. 202.
The MTC Judge at the time was Judge Romeo

Albarracin. He denied the motion to quash the
information. Not contented with the decision,
Evangeline et al filed a certiorari case and the same
was raffled to RTC Branch 11. Judge Europa declared
that Art. 202(2) is violative of the Constitution as
being vague. On pure questions of law, the SolGen
appealed before the SC. The SC said yes, indeed Par.
2 of Art. 202 is a violation of the Constitutional
provision on vagueness of the law.
Article 202. Vagrants and prostitutes; Penalty.

- The following are vagrants:
1. Any person having no apparent means of
subsistence, who has the physical ability to
work and who neglects to apply himself or
herself to some lawful calling;
[Note: If you read the case, the Supreme Court

actually upheld the constitutionality and validity of
Art. 202(2). \_()_/]
2. Any person found loitering about public

or semi-public buildings or places or
trampling or wandering about the country
or the streets without visible means of
support;
This became the clamor of some NGOs helping CSW.

Because of the clamor of the NGO, we have now RA
10158. Remember, this was approved on March 27,
2012. Take a look at Sec. 1 of the law.
[ REPUBLIC ACT NO. 10158 ]
3. Any idle or dissolute person who ledges

in houses of ill fame; ruffians or pimps and
those who habitually associate with
prostitutes;
AN
ACT
DECRIMINALIZING
VAGRANCY,
AMENDING FOR THIS PURPOSE ARTICLE 202
OF ACT NO. 3815, AS AMENDED, OTHERWISE
KNOWN AS THE REVISED PENAL CODE
4. Any person who, not being included in

the provisions of other articles of this
SECTION 1. Article 202 of the Revised Penal Code is

11
Criminal Law II TSN

2nd Exam Coverage
hereby, amended to read as follows:
the exploitation or the prostitution of

others
or
other
forms
of
sexual
exploitation, forced labor or services,
slavery, servitude or the removal or sale of
organs.
Article 202. Prostitutes; Penalty. For the purposes

of this article, women who, for money or profit,
habitually indulge in sexual intercourse or lascivious
conduct, are deemed to be prostitutes.
The recruitment, transportation, transfer,

harboring or receipt of a child for the purpose
of exploitation shall also be considered as
"trafficking in persons" even if it does not
involve any of the means set forth in the
preceding paragraph.
Any person found guilty of any of the offenses

covered by this article shall be punished by arresto
menor or a fine not exceeding 200 pesos, and in case
of recidivism, by arresto mayor in its medium period
to prision correctional in its minimum period or a fine
ranging from 200 to 2,000 pesos, or both, in the
discretion of the court.
The best movie that we can relate to trafficking is

Taken. Thats more or less trafficking.
SEC. 2. Effect on Pending Cases. All pending cases

under the provisions of Article 202 of the Revised
Penal Code on Vagrancy prior to its amendment by
this Act shall be dismissed upon effectivity of this Act.
(b) Child - refers to a person below eighteen (18)

years of age or one who is over eighteen (18) but is
unable to fully take care of or protect himself/herself
from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental
disability or condition.
SEC. 3. Immediate Release of Convicted Persons.

All persons serving sentence for violation of the
provisions of Article 202 of the Revised Penal Code
on Vagrancy prior to its amendment by this Act shall
be immediately released upon effectivity of this
Act:Provided, That they are not serving sentence or
detained for any other offense or felony.
(c) Prostitution - refers to any act, transaction,

scheme or design involving the use of a person
by another, for sexual intercourse or lascivious
conduct in exchange for money, profit or any
other consideration.
So Art. 202, because of the amendment, yan na lang.

What is prohibited under Art. 202 is limited to
prostitution only, wala na yung vagrancy. Sec. 2
Pending cases shall be dismissed. That is why ka
daghang disposal in MTC because of this law. So if
you will be confronted during the Bar Exam about
Vagrancy, remember March 2012, the law took effect
declaring that vagrancy is no longer a crime. So Art.
202 is limited only to prostitution.
(d) Forced Labor and Slavery - refer to the

extraction of work or services from any person
by means of enticement, violence, intimidation
or threat, use of force or coercion, including
deprivation of freedom, abuse of authority or
moral ascendancy, debt-bondage or deception.
(e) Sex Tourism - refers to a program
organized by travel and tourism-related
establishments and individuals which consists
of tourism packages or activities, utilizing and
offering escort and sexual services as
enticement for tourists. This includes sexual
services and practices offered during rest and
recreation periods for members of the military.
Let us now proceed to another special law. This is

the Anti-Trafficking in Persons Act of 2003, RA
9208.
Section 3. Definition of Terms. - As used in this Act:
(a) Trafficking in Persons - refers to the
recruitment, transportation, transfer or
harboring, or receipt of persons with or
without the victim's consent or knowledge,
within or across national borders by means
of threat or use of force, or other forms of
coercion, abduction, fraud, deception,
abuse of power or of position, taking
advantage of the vulnerability of the
person, or, the giving or receiving of
payments or benefits to achieve the
consent of a person having control over
another person for the purpose of
exploitation which includes at a minimum,
(f) Sexual Exploitation - refers to participation

by a person in prostitution or the production of
pornographic materials as a result of being
subjected to a threat, deception, coercion,
abduction, force, abuse of authority, debt
bondage, fraud or through abuse of a victim's
vulnerability.
(g) Debt Bondage - refers to the pledging by
the debtor of his/her personal services or
labor or those of a person under his/her
control as security or payment for a debt,
when the length and nature of services is not
12
Criminal Law II TSN

2nd Exam Coverage
clearly defined or when the value of the

services as reasonably assessed is not applied
toward the liquidation of the debt.
involuntary servitude or debt bondage;

(g) To recruit, hire, adopt, transport or abduct a
person, by means of threat or use of force,
fraud, deceit, violence, coercion, or intimidation
for the purpose of removal or sale of organs of
said person; and
(h) Pornography - refers to any representation,

through publication, exhibition, cinematography,
indecent shows, information technology, or by
whatever means, of a person engaged in real or
simulated explicit sexual activities or any
representation of the sexual parts of a person for
primarily sexual purposes.
(h) To recruit, transport or adopt a child to engage in

armed activities in the Philippines or abroad.
One of the things in the Anti-Human Trafficking Law
is that there is an agency actively involved in this
matter. We call them IACAT.
Note bolded provisions in particular.

Common acts committed in violation of this law:
20.
Inter-Agency Council Against
Trafficking. - There is hereby established an InterSection
Section 4. Acts of Trafficking in Persons. - It shall

be unlawful for any person, natural or juridical, to
commit any of the following acts:
Agency Council Against Trafficking xxx
(a) To recruit, transport, transfer; harbor,

provide, or receive a person by any means,
including those done under the pretext of
domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution,
pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
I convicted someone for violation of the trafficking

law, and you know what happened out of the
conviction? The fiscal who prosecuted the accused
for trafficking was awarded by the US Embassy. She
was awarded P20,000. What about the Judge that
convicted the accused? Wala. The US Embassy is
very active in this. Thats the reason why Japan no
longer has this japayuki style. Wala na. Kasi
blacklisted sila sa international community because of
the japayuki. In another case, the trafficking
happened in Singapore. When they were already in
Singapore, they were promised that they will have a
job, but when they reached Singapore, they were
brought to a prostitution den. There was a good
samaritan, an Australian national that helped them
and brought them to the Philippine embassy in
Singapore. When they reached the Philippines, they
filed cases of Anti-Trafficking against the woman and
the case was filed in my court. The problem is, when
the trial went on, the private complainants who were
considered as victims no longer wanted to testify. As
a matter of procedure, I am supposed to issue a
warrant for their arrest. But the problem is, double
whammy na yan. Na biktima na nga imo pa gyud
ipapreso. So in trafficking cases like that, I will no
longer be issuing warrant of arrests for the private
complainants kasi nga double whammy na.
(b) To introduce or match for money, profit, or

material, economic or other consideration, any
person or, as provided for under Republic Act
No. 6955, any Filipino woman to a foreign
national, for marriage for the purpose of
acquiring, buying, offering, selling or trading
him/her to engage in prostitution, pornography,
sexual exploitation, forced labor, slavery,
involuntary servitude or debt bondage;
(c) To offer or contract marriage, real or
simulated, for the purpose of acquiring, buying,
offering, selling, or trading them to engage in
prostitution, pornography, sexual exploitation,
forced labor or slavery, involuntary servitude or
debt bondage;
(d) To undertake or organize tours and travel
plans consisting of tourism packages or activities
for the purpose of utilizing and offering persons
for prostitution, pornography or sexual
exploitation;
I will give you a particular example of the application

of the Anti-Trafficking law. I will share to you a
decided case in relation to RA 9208, the AntiTrafficking Law.
(e) To maintain or hire a person to engage in

prostitution or pornography;
But please take note that this law has already been
amended. That is RA 10364. Expanded Human
Trafficking Law of 2013. There are salient points
in the expanded law, one of which is jurisdiction.
(Exception to principle of territoriality)
(f) To adopt or facilitate the adoption of persons

for the purpose of prostitution, pornography,
sexual exploitation, forced labor, slavery,
13
Criminal Law II TSN

2nd Exam Coverage
Sec. 4(a) Attempted Trafficking. You cannot find this

in RA 9208, the old law. This is new in RA 10364.
(d) Simulating a birth for the purpose of selling the

child; and
Republic Act No. 9208
(e) Soliciting a child and acquiring the custody

thereof through any means from among hospitals,
clinics, nurseries, daycare centers, refugee or
evacuation centers, and low-income families, for the
purpose of selling the child.
But please take note that his law has already been
amended recently. That is RA 10364 or the Expanded
Anti-Trafficking in Persons Act of 2012. There are
salient points in the expanded law. One of which is
jurisdiction. I think I gave it as part of your handout.
(Kindly Check) We now have 7 exceptions to the
principle of territoriality.
One of the new provisions inserted in this law is the

liability of an accomplice:
SEC. 4-B. Accomplice Liability. Whoever
knowingly aids, abets, cooperates in the execution of
the offense by previous or simultaneous acts defined
in this Act shall be punished in accordance with the
provisions of Section 10(c) of this Act.
SEC. 4-A. Attempted Trafficking in Persons.

Where there are acts to initiate the commission of a
trafficking offense but the offender failed to or did
not execute all the elements of the crime, by
accident or by reason of some cause other than
voluntary desistance, such overt acts shall be
deemed as an attempt to commit an act of trafficking
in persons. As such, an attempt to commit any of the
offenses enumerated in Section 4 of this Act shall
constitute attempted trafficking in persons.
Likewise, an accessory is made punishable in this

new law.
SEC. 4-C. Accessories. Whoever has the
knowledge of the commission of the crime, and
without having participated therein, either as
principal or as accomplices, take part in its
commission in any of the following manners:
Sec 4 (a) talks of Attempted trafficking. You cannot

find this in the old law. This is new. Attempted
trafficking is any act to initiate the offense but the
offender failed to execute all the elements of the
crime due to accident or by reason of self-cause
other than voluntary desistance.
(a) By profiting themselves or assisting the offender

to profit by the effects of the crime;
(b) By concealing or destroying the body of the crime
or effects or instruments thereof, in order to prevent
its discovery;
Where one act is declared unlawful in a special law,

seldom can you find attempted stages. It is always in
the consummated stage. But here, in the Expanded
Human Trafficking Law, it defines an attempted
stage.
Sec 4-A
(c) By harboring, concealing or assisting in the

escape of the principal of the crime, provided the
accessory acts with abuse of his or her public
functions or is known to be habitually guilty of some
other crime.
In cases where the victim is a child, any of the

following acts shall also be deemed as attempted
trafficking in persons:
Acts defined in this provision shall be punished in

accordance with the provision of Section 10(d) as
stated thereto.
(a) Facilitating the travel of a child who travels alone

to a foreign country or territory without valid reason
therefor and without the required clearance or permit
from the Department of Social Welfare and
Development, or a written permit or justification from
the childs parent or legal guardian;
Another
(c) Affidavit of Desistance. Cases involving
trafficking in persons should not be dismissed based
on the affidavit of desistance executed by the victims
or their parents or legal guardians. X X X
(b) Executing, for a consideration, an affidavit of

consent or a written consent for adoption;
If you are the legal guardian with that kind of

situation, the affidavit of desistance cannot be the
basis of dismissal. Public and private prosecutors are
directed to oppose and manifest objections to
motions for dismissal.
(c) Recruiting a woman to bear a child for the

purpose of selling the child;
14
Criminal Law II TSN

2nd Exam Coverage
decoys, pretending to be tour guides looking for girls

to entertain their guests. They were provided with
marked money. [Queensland naa sa Davao, naa pud
sa Cebu] These 2 policemen proceeded to Jakosalem
Street, a red-light district in Cebu. Accused noticed
them and called their attention by saying "Chicks mo
dong?"
[Continuation]
Public and private prosecutors are directed to oppose
and manifest objections to motions for dismissal.
Any act involving the means provided in this Act or
any attempt thereof for the purpose of securing an
Affidavit of Desistance from the complainant shall be
punishable under this Act.
PO1 Luardo: Unya mga bag-o? Kanang batan-on kay

naa mi guests naghulat sa motel. (Are they new?
They must be young because we have guests waiting
at the motel.)
[Story when she was still a private practitioner,

handling cases on Human Trafficking; Japayuki; Find
me a person who will tell this Have I violated Legal
Ethics? Lawyers are not liars]
Accused: Naa, hulat kay magkuha ko. (Yes, just wait

and Ill get them.)
Extra-territorial application of the Expanded Human

Trafficking Law:
At that point, PO1 Luardo sent a text message to PSI

Ylanan that they found a prospective subject.
SEC. 26-A. Extra-Territorial Jurisdiction. The

State shall exercise jurisdiction over any act defined
and penalized under this Act, even if committed
outside the Philippines and whether or not such act
or acts constitute an offense at the place of
commission, the crime being a continuing offense,
having been commenced in the Philippines and other
elements having been committed in another country,
if the suspect or accused:
After a few minutes, accused returned with AAA and

BBB, private complainants in this case. Accused:
Kining duha kauyon mo ani? (Are you satisfied with
these two?)
PO1 Veloso: Maayo man kaha na sila modala ug
kayat? (Well, are they good in sex?) Accused gave
the assurance that the girls were good in sex. PO1
Luardo inquired how much their serviceswould cost.
Accused replied, "Tag kinientos" (P500.00).16
(a) Is a Filipino citizen; or

(b) Is a permanent resident of the Philippines; or
PO1 Veloso and PO1 Luardo convinced accused to

come with them to Queensland Motel. Upon
proceeding toRoom 24, PO1 Veloso handed the
marked money to accused.
(c) Has committed the act against a citizen of the

Philippines.
No prosecution may be commenced against a
person under this section if a foreign government, in
accordance with jurisdiction recognized by the
Philippines, has prosecuted or is prosecuting such
person for the conduct constituting such offense,
except upon the approval of the Secretary of Justice.
As accused counted the money, PO1 Veloso gave PSI

Ylanan a missed call. This was their pre-arranged
signal. The rest of the team proceeded to Room 24,
arrested accused, and informed her of her
constitutional rights. The police confiscated the
marked money from accused.18 Meanwhile, AAA and
BBB "were brought to Room 25 and placed in the
custody of the representatives from the IJM and the
DSWD."19
The government may surrender or extradite persons

accused of trafficking in the Philippines to the
appropriate international court if any, or to another
State pursuant to the applicable extradition laws and
treaties.
During trial, AAA testified that she was born on

January 27, 1991. This statement was supported by
a copy of her certificate of live birth.20
Now, I will share to you a December 3, 2014 case,

the case of PEOPLE OF THE PHILIPPINES vs.
SHIRLEY A. CASIO.
The ISSUE here is whether or not the accused can

be convicted of trafficking of persons considering
that AAA admitted that she is a prostitute. It was her
decision to display herself to solicit customers.
What are the facts of the case?
How did the Supreme Court rule on the

matter? Supreme Court speaking thru Justice
Leonen:
Cebu Police composed a team to entrap persons

engaged in human trafficking. 2 policemen acted as
15
Criminal Law II TSN

2nd Exam Coverage
The elements of trafficking in persons can be derived

from its definition under Section 3(a) of Republic Act
No. 9208, thus:
[Story about his conversation with Atty. Montejo on

the usage of gender free words partner in lieu of
husband/wife; Cougar to a Cub Anak nimo na?
Worse question: Lahi lagi mog nawong?!]
(1) The act of "recruitment, transportation,

transfer or harbouring, or receipt of persons
with or without the victims consent or
knowledge, within or across national
borders."
IRRELEVANCE OF PAST SEXUAL BEHAVIOR

17-B. Irrelevance
of Past Sexual
Behavior, Opinion Thereof or Reputation of
Victims and of Consent of Victims in Cases of
Deception, Coercion and Other Prohibited
Means. The past sexual behavior or the sexual
SEC.
(2) The means used which include "threat or

use of force, or other forms of coercion,
abduction, fraud, deception, abuse of power
or of position, taking advantage of the
vulnerability of the person, or, the giving or
receiving of payments or benefits to achieve
the consent of a person having control over
another; and
predisposition of a trafficked person shall be

considered inadmissible in evidence for the purpose
of proving consent of the victim to engage in sexual
behavior, or to prove the predisposition, sexual or
otherwise, of a trafficked person. Furthermore, the
consent of a victim of trafficking to the intended
exploitation shall be irrelevant where any of the
means set forth in Section 3(a) of this Act has been
used.
(3) The purpose of trafficking is exploitation

which
includes
"exploitation
or
the
prostitution of others or other forms of sexual
exploitation, forced labor or services, slavery,
servitude or the removal or sale of organs."
So, had the case of Shirley Casio been decided today,

the SC may invoked Section 17-B. Only that, Shirley
Casio (case) was decided prior to the enactment of
the Expanded Human Trafficking Law.
AAA and BBB were recruited by accused when their

services were peddled to the police who acted as
decoys. AAA was a child at the time that accused
peddled her services. AAA also stated that she
agreed to work as a prostitute because she needed
money. Accused
took
advantage
of
AAAs
vulnerability as a child and as one who need money,
as proven by the testimonies of the witnesses.
[BREAK FOR 5 MINS]

Lets take a look at the 2012 Bar QuestionS:
1) When the adoption of a child is effected
under the Inter-Country Adoption Act for the
purpose of prostitution, what is the proper
charge against the offender who is a public
officer in relation to the exploitative purpose?
a. acts that promote trafficking in
persons;
b. trafficking in persons;
c. qualified trafficking in persons;
d. Use of trafficked person.
Accused claims that AAA admitted engaging in

prostitution even before May 2, 2008. She concludes
that AAA was predisposed to having sex with
"customers" for money. For liability under our law,
this argument is irrelevant. As defined under Section
3(a) of Republic Act No. 9208, trafficking in persons
can still be committed even if the victim gives
consent.
Now, if you take a look at the old law, when you use
a person whom you know is a trafficked person. Do
you have any liability? For example, Mr. A niadto sya
sa CM Recto. Chicks ka Dong? Isa lang. And then,
boarded a taxi and went to Queensland. The man
knew very well that the woman she is using is a
trafficked one. What is the liable of a man who used
a trafficked person? Under RA 9208, you will have a
liability you are criminally liable but the penalty is
community service. Maglimpio sa kalsada.
Ah!
Maglimpio ra man. But remember, you are already
convicted. Im telling you kay basin masayop mo.
Huwata na lang ma-lawyer mo or after sa bar or sa
inyong girlfriend or partner, maybe. [Thank you
kaayo sa concern, Judge]
2) Conspiracy to commit felony is punishable

only in cases in which the law specifically
provides a penalty therefor. Under which of
the following instances are the conspirators
not liable?
a. Conspiracy to commit arson.
b. Conspiracy to commit terrorism.
c. Conspiracy
to
commit
child
pornography.
d. Conspiracy to commit trafficking
in persons.
16
Criminal Law II TSN

2nd Exam Coverage
This was under 2012. But if we are going to base

under the new law now, there is already a crime of
conspiracy to commit trafficking.
Government of the Philippine Islands, of shall

perform in said Government or in any of its branches
public duties as an employee, agent or subordinate
official, of any rank or class, shall be deemed to be a
public officer.
This is the one I am telling you kanina, for the men:

Section 11. Use of Trafficked Persons. - Any
person who buys or engages the services of
trafficked persons for prostitution shall be penalized
as follows:
Definition of terms muna tayo.
(a) First offense - six (6) months of community

service as may be determined by the court and a fine
of Fifty thousand pesos (P50,000.00); and
(b) Second and subsequent offenses - imprisonment

of one (1) year and a fine of One hundred thousand
pesos (P100,000.00).
Malfeasance wrongdoing or misconduct in

the performance of a public duty of public
officers or the performance of some act which
ought not to be done.
Misfeasance the doing of a lawful act in
an
unlawful
manner,
the
improper
performance of an act which may be lawfully
done.
Nonfeasance the omission of an act which
ought to be done.
What are the crimes known to be dereliction of

duty?
Who can be prosecuted under this case?
1)
2)
3)
4)
5)
Knowingly rendering unjust judgment

Judgment rendered through negligence
Unjust interlocutory order
Malicious delay in the administration of justice
Prosecution of offenses; negligence and
tolerance
6) Betrayal of trust by an attorney or solicitor.
Section 8. Prosecution of Cases. - Any person

who has personal knowledge of the commission of
any offense under this Act, the trafficked person, the
parents, spouse, siblings, children or legal guardian
may file a complaint for trafficking.
Where the case shall be filed?
Let us have Article 204:
Section 9. Venue. - A criminal action arising from

violation of this Act shall be filed where the offense
was committed, or where any of its elements
occurred, or where the trafficked person actually
resides at the time of the commission of the
offense: Provided, That the court where the criminal
action is first filed shall acquire jurisdiction to the
exclusion of other courts.
Article 204. Knowingly rendering unjust judgment. Any judge who shall knowingly render an unjust
judgment in any case submitted to him for decision,
shall be punished by prision mayor and perpetual
absolute disqualification.
This is otherwise known as PREVARICACION (?).
What are the elements?
How about the foreigners?
1) Offender is a judge.
2) He renders a decision in a case submitted to
him for judgment
3) Judgment is unjust.
4) Has knowledge that the decision is unjust.
(g) If the offender is a foreigner, he shall be

immediately deported after serving his sentence and
be barred permanently from entering the country;
That ends our discussion on Crimes Against Morals.
Lets proceed to Crimes Committed by Public
Officers.
Now, the term JUDGMENT refers to the

consideration and determination of the issue
presented before the court.
To start with, we have Article 203:
In a criminal proceeding, it means the

adjudication by the court that the accused is guilty or
the accused is not guilty of the offense being
charged.
Article 203. Who are public officers. - For the

purpose of applying the provisions of this and the
preceding titles of this book, any person who, by
direct provision of the law, popular election or
appointment by competent authority, shall take part
in the performance of public functions in the
When do we say its an unjust judgment? One

which is contrary to law or it is not supported by the
17
Criminal Law II TSN

2nd Exam Coverage
evidence or merit, this we can say that the judgment

is unjust.
possession of $355,000.00 while inside NAIA. Under

Central Bank Circular 960, possession of such
amount without the authority of the Central Bank is
considered a criminal act. Now since the foreigner
had no authority to possess such amount of dollars,
he was charged for violation of Circular 960 in
relation to the General Banking Law. The accused did
not deny his possession of foreign currency but put
up the defense that said money was merely the
remaining balance of the money he brought to the
Philippines. This line of defense was considered by
the Judge hence the accused was acquitted. The
decision stated that intent to violate the law must be
shown. Supreme Court ruled:
The law requires the decision must be written in the

official language personally and prepared by the
judge and signed by him. It must contain a clear and
distinct statement of facts proved or admitted by the
defendant where the judgment is based and what is
the ruling based on the facts and the law.
[Story about 1 sentence for plaintiffs facts; 1
sentence for defendants; then wherefore clause;
Certiorari case before Judge; She remanded the case
for proper disposition]
Not only must the judgment rendered proved to be
an unjust but it must also be established that he
knowingly rendered the same. There must be a
conscious and deliberate intent to cause an injustice.
This usually occurs when the judge entertains hatred,
envy or greed against one of the parties.
The
respondent-judge
has
shown
gross
incompetence or gross ignorance of the law in
holding that to convict the accused for violation of
Central Bank Circular No. 960, the prosecution must
establish that the accused had the criminal intent to
violate the law. The respondent ought to know that
proof of malice or deliberate intent (mens rea) is not
essential in offenses punished by special laws, which
are mala prohibita. X X X
An unjust judgment may result from error based on

bad faith or ill will or revenge or bribery. There must
evidence that the decision is unjust; it cannot be
presumed. To be liable for the crime, it must not only
be proved that there was an unjust judgment it must
likewise be established that it had been knowingly
rendered.
He not only acquitted the accused Lo Chi Fai, but

directed in his decision the release to the accused of
at least the amount of US$3,000.00, allowed,
according to respondent, under Central Bank Circular
No. 960. X X X There is nothing in said circular that
would justify returning to him the amount of at least
US$3,000.00, if he is caught attempting to bring out
foreign exchange in excess of said amount without
specific authority from the Central Bank.
Abuse of discretion by the way or mere error of

judgment cannot likewise serve as basis for
rendering an unjust judgment in the absence of proof
or even in the allegation of bad faith.
In one case, Dela Cruz v Concepcion, Supreme
Court ruled:
A Judge cannot be held to account or answer,
criminally, civilly, or administratively, for an
erroneous decision rendered by him in good faith.
Accordingly, the Court finds the respondent Regional

Trial Court Judge, Baltazar R. Dizon, guilty of gross
incompetence, gross ignorance of the law and grave
and serious misconduct affecting his integrity and
efficiency, and consistent with the responsibility of
this Court for the just and proper administration of
justice and for the attainment of the objective of
maintaining the people's faith in the judiciary (People
vs. Valenzuela, 135 SCRA 712), it is hereby ordered
that the Respondent Judge be DISMISSED from the
service. All leave and retirement benefits and
privileges to which he may be entitled are hereby
forfeited with prejudice to his being reinstated in any
branch of government service, including governmentowned and/or controlled agencies or corporations.
XXX
Mere errors in the appreciation of such evidence,
unless so gross and patent as to produce an
inference of ignorance or bad faith, or that the judge
knowingly rendered an unjust decision, are irrelevant
and immaterial in an administrative proceeding
against him. No one, called upon to try facts or
interpret the law in the process of administering
justice, can be infallible in his judgment. All that is
expected of him is that he follow the rules prescribed
to ensure a fair and impartial hearing, assess the
different factors that emerge therefrom and bear on
the issues presented, and on the basis of the
conclusions he finds established, with only his
conscience and knowledge of the law to guide him,
adjudicate the case accordingly.
205. Judgment
rendered
through
negligence. Any judge who, by reason of
Art.
inexcusable negligence or ignorance shall render a

manifestly unjust judgment in any case submitted to
him for decision shall be punished by arresto mayor
and temporary special disqualification.
In one case (I think Judge is referring to Padilla v

Dizon; similar facts), a judge was dismissed from
service for committing or rendering an unjust
judgment. In a case involving a foreigner found in
18
Criminal Law II TSN

2nd Exam Coverage
The leading case under this article is the case of

Cortes vs. Catral 279 SCRA 1. Here the Supreme
Court said that the unjust judgment is merely the
result of inexcusable negligence or ignorance of the
law. The ignorance here may refer to substantive or
procedural law. There must be an apparent and
notorious manifestation of lack of logic and false
interpretation of the law.
correccional in its minimum period and suspension

shall be imposed upon any public officer, or officer of
the law, who, in dereliction of the duties of his office,
shall maliciously refrain from instituting prosecution
for the punishment of violators of the law, or shall
tolerate the commission of offenses.
Under article 208, there are two ways of violating the
law.
Article 206. Unjust interlocutory order. - Any

judge who shall knowingly render an unjust
interlocutory order or decree shall suffer the penalty
of arresto mayor in its minimum period and
suspension; but if he shall have acted by reason of
inexcusable negligence or ignorance and the
interlocutory order or decree be manifestly unjust,
the penalty shall be suspension.
1) One is maliciously refraining from instituting

prosecution against the offender and second
by maliciously tolerating the commission of
the offense.
In the strict sense of the word, the article also refers
to the prosecution department or the fiscals whose
duty is to institute criminal actions for offenses made
known to them or committed in their presence.
An interlocutory order is one that is issued when the

case is still pending for final determination. It refers
to issues that need to be resolved before judgment is
rendered. It is a ruling not on the merits of the case
but on a collateral issue. Example: In a civil case
where you ask for the issuance temporary restraining
order and the court issues a TRO. That is an
interlocutory order. It does not decide the case but it
merely tackles on a more pressing issue. Another
example: The issuance for a preliminary attachment
in a petition for the declaration of nullity of marriage
for psychological incapacity. In the petition you ask
for support, you know that kind of order of the court
dealing on support pendente lete is considered as
interlocutory because the order can never be final. It
changes depending on the age of the children as well
as inflation and the like. Now, the one that gives an
end the litigation is what we call a final decision.
When the order does not dispose the case completely
but leads something to be done. That is what we call
as interlocutory.
In particular the article also applies to prosecutors,

members of the PNP, the NBI and the barangay
captains. So for example the barangay captain would
tolerate illegal activities like gambling he is then
liable under article 208.
You know fiscals are those people in charged in the
filing of criminal cases. All criminal cases must pass
through their office. Sila ang tig-sala sa mga cases.
Supposing, A files a case before the prosecutions
office against B. The fiscal doesnt want to file it.
Question: Can he compel the fiscal or the
prosecutor to file the information? Answer is
NO. They are under no compulsion when they are
not convinced that the evidence presented would
warrant an action in court. They enjoy wide latitude
of discretion so they should be given that discretion
to prevent the courts from being flooded with cases
of doubtful merit.
But when there is really a prima facie evidence and
the fiscal or the prosecutor deliberately does not file
the case then he becomes liable under article 208.
Judge A tells another story.
207. Malicious
delay
in
the
administration of justice. - The penalty of prision
Article
correccional in its minimum period shall be imposed

upon any judge guilty of malicious delay in the
administration of justice.
[Story about Lawyers na magkaon ug drugs para
matago ang ebidensya; Judge magkaon ug

dokumento atong private practitioner pa sya; if
tiguwang ang other lawyer, hinayon niya iyang
tingog during cross-examination. Para dili ka-object;
Makabalo daw ang police if good mood si Judge if
naka-headband sya or makeup]
Under article 207, the offender again is a judge.

There is delay in the administration of justice when
the delay is maliciously intended. Hence mere delay
without malice does not make the judge criminally
liable. Judges have a time limit in deciding cases. For
example a case is submitted for decision, the judge
has only 90 days to resolve. If it goes beyond the 90
days and reaches 300 days, wala pa g-desisyonan.
Something is wrong with that. Unless he asks for an
extension, judges are allowed to ask for extensions.
Judga A tells a story about an unlawful detainer case
which has been pending for already 10 years.
When a policeman tolerates the commission of the

crime or otherwise, refrains from apprehending the
offender so that such person cannot be prosecuted
for his crime, he may be prosecuted as accessory to
the crime committed by the person under Article
19(3).
When the crime is robbery of theft, he will be liable
for violating the Anti-Graft and Corrupt practices act.
208. Prosecution
of
offenses;
negligence and tolerance. - The penalty of prision
Article
19
Criminal Law II TSN

2nd Exam Coverage
Further, in place where there are no fiscal or

attorneys, the Chief of Police is the prosecuting
officer. If he xxx allows the offenders to escape, then
he can be prosecuted under Article 208.
Under the Rules of Evidence:

Section 24. Disqualification by reason of privileged
communication.
This is also true in case of a barangay chairman.

They are supposed to punish violators of law within
their jurisdiction. If they do not do so, then they can
be prosecuted under Article 208.
(b) An attorney cannot, without the consent of his

client, be examined as to any communication made
by the client to him, or his advice given thereon in
the course of, or with a view to, professional
employment, nor can an attorney's secretary,
stenographer, or clerk be examined, without the
consent of the client and his employer, concerning
any fact the knowledge of which has been acquired
in such capacity;
Art. 209. Betrayal of trust by an attorney or

solicitor. Revelation of secrets. In addition
to the proper administrative action, the penalty of
prision correccional in its minimum period, or a fine
ranging from 200 to 1,000 pesos, or both, shall be
imposed upon any attorney-at-law or solicitor (
procurador judicial) who, by any malicious breach of
professional duty or of inexcusable negligence or
ignorance, shall prejudice his client, or reveal any of
the secrets of the latter learned by him in his
professional capacity.
Communications made by a client to his lawyer is

covered by the protective mantle of privileged
communication. The lawyer and the secretary cannot
be examined in the matter. This applies even after
xxx If the lawyer reveals such communication, he
violates the nature of confidential information
obtained in his professional capacity. However, there
must be malicious breach of professional duty on the
part of the lawyer.
The same penalty shall be imposed upon an

attorney-at-law or solicitor (procurador judicial) who,
having undertaken the defense of a client or having
received confidential information from said client in a
case, shall undertake the defense of the opposing
party in the same case, without the consent of his
first client.
Lets have a situation:

X and Y are protagonists. X filed a case of revocation
of contract with damages against X. X engaged the
legal services of Atty. Manzano. During the interview,
X confided with his lawyer such confidential
information. In malicious breach of his duty, Atty.
Manzano revealed to the relatives of Y the
confidential information he learned from X causing
undue prejudice to the case filed by the latter. So the
lawyer is liable for revelation of secrets xxx (BELL
RINGS)
What are the acts punishable here?

1) Causing prejudice to his client by any
malicious breach of professional duty or of
inexcusable negligence or ignorance
2) By revealing any of the secrets of the client
learned by him in his professional capacity
3) Undertaken the defense of a client or having
received confidential information from said
client in a case, shall undertake the defense
of the opposing party in the same case,
without the consent of his first client.
A lawyer who had already accepted to handle the

cause of the client cannot later on switch side and
render defense for the opposing party in the same
case. [Story about 2 lady lawyers coming from the
same institution now facing disbarment cases
because of this] The only way you can handle the
case of the adverse party is if he does it with the
consent of his first client.
The relationship between a lawyer and his client is

one of confidence. Are you at liberty to divulge
confidential information about the client? No,
you will be liable under this article. The information
given by the client to his lawyer is a privileged
communication. It is impressed with public interest.
And to preserve the sanctity of the institution, a
lawyer is made liable for the violation of such
confidence.
Betrayal of trust by an attorney, communications

between a lawyer and client about a client future
criminal acts are not privileged. [Cites example about
person planning to kill Mayor and Vice Mayor; not
privileged]
A lawyer to whom the case is referred for legal action

is forbidden or precluded from handling the defense
of the adverse party even in a situation where a
lawyer has resigned as counsel. To give force and
effect and to preserve the confidentiality of the
information given, a lawyer is made criminally liable
not only for revealing the secret of his client but also
in handling the case of the opposing party.
Art. 210. Direct bribery. Any public officer who

shall agree to perform an act constituting a crime, in
connection with the performance of this official
duties, in consideration of any offer, promise, gift or
present received by such officer, personally or
through the mediation of another, shall suffer the
penalty of prision mayor in its medium and maximum
periods and a fine [of not less than the value of the
20
Criminal Law II TSN

2nd Exam Coverage
gift and] not less than three times the value of the
gift in addition to the penalty corresponding to the
crime agreed upon, if the same shall have been
committed.
It is a common notion that when you talk of bribery,

you refer to the one corrupting the public officer.
That is wrong. Bribery refers to the act of the
receiver and the act of giver is corruption of public
official (212).
If the gift was accepted by the officer in

consideration of the execution of an act which does
not constitute a crime, and the officer executed said
act, he shall suffer the same penalty provided in the
preceding paragraph; and if said act shall not have
been accomplished, the officer shall suffer the
penalties of prision correccional, in its medium period
and a fine of not less than twice the value of such
gift.
1) Acts which amount to a crime

2) Those which do not amount to a crime
3) Commission of an act incumbent upon public
officer
We will learn the distinction between Direct Bribery
and Indirect Bribery.
Lets go to an example:
Under 210, the mere agreement to commit an act
which is a crime is already bribery.
If the object for which the gift was received or

promised was to make the public officer refrain from
doing something which it was his official duty to do,
he shall suffer the penalties of prision correccional in
its maximum period and a fine [of not less than the
value of the gift and] not less than three times the
value of such gift.
A court stenographer accepted a promise of P1000

from X in consideration of which she will alter the
notes taken by her during the trial of the case. What
kind of an act is that? So if a stenographer agrees to
alter the notes? What is the crime? She is liable for
falsification. The crime committed is falsification.
What if the stenographer to alter the notes after
receiving the bribe money did not alter the notes?
Na-isahan ba noh? What crime did she commit?
In addition to the penalties provided in the preceding

paragraphs, the culprit shall suffer the penalty of
special temporary disqualification.
The provisions contained in the preceding paragraphs
shall be made applicable to assessors, arbitrators,
appraisal and claim commissioners, experts or any
other persons performing public duties. (As amended
by Batas Pambansa Blg. 872, June 10, 1985).
Answer: The crime she committed is direct bribery.

Why? What the law requires is that the public officer
agrees to commit an act. Mere agreement is already
enough to constitute the crime of direct bribery. Is it
necessary that she does the act after payment? NO.
The crime of direct bribery is already consummated
the moment the public officer agrees.
There are 3 forms of bribery:

1) Direct Bribery
2) Indirect Bribery
3) Qualified Bribery
Another problem: A agreed to alter the

stenographic notes in consideration of 1000 pesos
from B. The stenographer altered it but did not
receive the 1000. Question: What crime did A
commit?
Alright, there are three acts being punished here.

1) By agreeing to perform, or by performing, in
consideration of any offer, promise, gift or
present an act constituting a crime, in
connection with the performance of his official
duties.
2) By accepting a gift in consideration of the
execution of an act which does not
constitute a crime, in connection with the
performance of his official duty.
3) By agreeing to refrain, or by refraining, from
doing something which it is his official duty to
do, in consideration of gift or promise.
Answer: Direct bribery. It is not necessary that A

would actually receive the 1000 because by agreeing
to commit the crime in consideration of an offer is
already enough.
Now, what if there is double crossing? Both of them
double crossed each other. A agrees in consideration
of 1000 to alter the record but in her mind she has
no intention of making good of her promise. On the
other hand B has also no intention of paying. What
crime is committed here? Bribery again. It is even in
the consummated stage.
There are 2 essential elements that are required:
Now, in all the examples that we gave, its the

private individual who made the offer. What if it is
the stenographer who made the offer? Is the
stenographer liable for direct bribery? Answer: YES.
The phrase any public officer who shall agree to
perform an act does not imply that na ang public
officer or employee lang ang pwede mgcommit the
1) He received by himself or thru another, gift or

present, offer or promise
2) Such gift have been given in consideration of
his commission of a crime or any act not
constituting a crime and the crime or by
reason of the functions of public officer
21
Criminal Law II TSN

2nd Exam Coverage
law applies even if it is the employee who proposes

it.
One, by agreeing to perform, or by performing, in

consideration of any offer, promise, gift or present
an act constituting a crime, in connection with the
performance of his official duties.
September 22, 2015
Two, by accepting a gift in consideration of the

execution of an act which does not constitute a
crime, in connection with the performance of his
official duty.
Article 210. Direct bribery. Any public officer who

shall agree to perform an act constituting a crime, in
connection with the performance of this official
duties, in consideration of any offer, promise, gift or
present received by such officer, personally or
through the mediation of another, shall suffer the
penalty of prision mayor in its medium and maximum
periods and a fine [of not less than the value of the
gift and] not less than three times the value of the
gift in addition to the penalty corresponding to the
crime agreed upon, if the same shall have been
committed.
Three, by agreeing to refrain, or by refraining, from

doing something which it is his official duty to do, in
consideration of gift or promise.
The crime is already consummated the moment the
public officer agrees to perform the act even if he did
not actually perform it.
What are the common distinctions between direct
bribery and indirect bribery?
If the gift was accepted by the officer in

consideration of the execution of an act which does
not constitute a crime, and the officer executed said
act, he shall suffer the same penalty provided in the
preceding paragraph; and if said act shall not have
been accomplished, the officer shall suffer the
penalties of prision correccional, in its medium period
and a fine of not less than twice the value of such
gift.
1. We have said that in direct bribery, the public

officer must do something in consideration of the
gift.
In indirect, there is no such agreement.
2. Mere agreement consummates the crime of direct
bribery if what is agreed upon amounts to a crime,
while in indirect bribery, the public officer must
accept the gift to consummate the crime.
If the object for which the gift was received or

promised was to make the public officer refrain from
doing something which it was his official duty to do,
he shall suffer the penalties of prision correccional in
its maximum period and a fine [of not less than the
value of the gift and] not less than three times the
value of such gift.
Remember that that second act of committing the

crime of direct bribery is that by accepting the gift.
Meaning, the public officer agrees to do something
which does not constitute a crime. Even if what he
will do will not amount to a crime but if he agrees to
do it that will already consummate the crime of direct
bribery.
In addition to the penalties provided in the preceding

paragraphs, the culprit shall suffer the penalty of
special temporary disqualification.
Remember also, that a gift is accepted in the second

way of committing direct bribery unlike in the first
where it is unnecessary.
The provisions contained in the preceding paragraphs

shall be made applicable to assessors, arbitrators,
appraisal and claim commissioners, experts or any
other persons performing public duties. (As amended
by Batas Pambansa Blg. 872, June 10, 1985).
Under the 3rd act, by agreeing to refrain, or by

refraining, from doing something which it is his
official duty to do, in consideration of gift or
promise.,
There are 3 forms of bribery:
our example will always be:
1. direct bribery
2. indirect bribery
3. qualified bribery
A is a city health officer. One of her functions is to

conduct sanitation inspections in restaurants. If in
consideration of a price or reward, A did not inspect
the restaurant. The crime of direct bribery is
committed.
We also mentioned 3 acts that are punished by

Article 210:
22
Criminal Law II TSN

2nd Exam Coverage
The question is, can a private individual be liable

under Art. 210?
corrupted, except those of disqualification and

suspension, shall be imposed upon any person
who shall have made the offers or promises or
given the gifts or presents as described in the
preceding articles.
Answer should be: it depends. The general rule, No.

A private individual may not be liable. Except in the
last paragraph of Article 210.
We have said that accepting the gift given by reason
of his public function. The crime committed is indirect
bribery. So if you are a Regional Director and
someone gives you and you accept one container of
apple even before Christmas, ngano matagaan diay
kag apple kung dili ka taga bureau of customs?
Indirect bribery: consider whether the public official

who agreed to do the act is a crime or not. If it will
amount to a crime, is not necessary that the
corruptors will deliver the consideration for the doing
of the act. The moment there is the meeting of the
minds, even without the delivery of the consideration
nor 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 to the conspiracy involving the duty of
the public officer, the mere agreement is already a
felony. The public officer is liable for direct bribery.
The one who offered is liable for corruption of public
official, under Art 212.
Bear in mind that the gift is given BY REASON OF

HIS OFFICE, not in consideration thereof. Indirect
bribery exists even if you agree to perform or not at
all. By the fact that you are given something and you
receive it by reason of your office, the crime of
indirect bribery is committed. Note however that one
may begin as an INDIRECT bribery may actually
ripen into DIRECT bribery.
I remember one time when I was in the DAR. It was
one of the members of the task force investigating a
property because there were allegations of illegal
conversions. One must apply for conversion before it
can be converted. The person gave so many jackets
distributed us. I remember that I did not receive the
package given to us because if I will, I will be
committing the crime of indirect bribery.
If the corruptor offers a consideration to a custodian

of a public record to remove certain files?
The mere agreement without delivery of the
consideration brings about the crime of direct bribery
and corruption of public officials on the part of the
private individual.
If the documents were actually removed, both the
public officer and the corruptor, in addition to the
mentioned above, will also be liable for the crime of
INFIDELITY OF PUBLIC RECORDS, for which they
shall be liable as principals. One by inducement. The
other by direct participation.
Art. 211. Indirect bribery. The penalties of

prision correccional in its medium and
maximum periods, and public censure shall be
imposed upon any public officer who shall
accept gifts offered to him by reason of his
office. (As amended by Batas Pambansa Blg.
872, June 10, 1985).
Problem: A party litigant approached the court

stenographer and proposed the idea of altering the
stenographic transcript. The stenographer agreed
and demanded P5,000. Unknown to them, there
were law enforcers who were already given a tip that
he was doing this before. So they were waiting for
the chance to entrap him. So they were apprehended
and they said that they have not done anything yet.
Under Art. 210, the mere agreement to commit an
act which amounts to a crime is already Bribery. The
stenographer becomes liable already for a
consummated crime of bribery. And the party who
agreed to give the money is liable for consummated
corruption, even though not a single centavo is
Art. 211-A. Qualified Bribery. If any public

officer is entrusted with law enforcement and
he refrains from arresting or prosecuting an
offender who has committed a crime
punishable by reclusion perpetua and/or death
in consideration of any offer, promise, gift or
present, he shall suffer the penalty for the
offense which was not prosecuted.
If it is the public who asks or demands such
gift or present, he shall suffer the penalty of
death. (As added by Section 4, RA No. 7659.)
Art. 212. Corruption of public officials. The
same penalties imposed upon the officer
23
Criminal Law II TSN

2nd Exam Coverage
delivered yet and even though the stenographer has

not made the act.
money with the knowledge of the police. The crime

of the public official is Attempted Bribery. The reason
is that the giver has no intention to corrupt him and
therefore he could not perform all the acts of
execution. So he cannot be liable under Art 212.
Cases of bribery would sometimes come with an

entrapment procedure conducted by the CIDG or
NBI.
If you change the transcript, another crime is
committed. What crime? Art 171. Falsification.
Be sure that what is involved is a crime of bribery

and not extortion. If it were extortion the crime is not
bribery
but
Robbery.
Robbery
should
be
distinguished from bribery where the law enforcer,
say a policeman, extorts money from a person,
employing intimidation and threatening to arrest the
latter if he did will come across with money be guilty
for the crime of robbery.
Direct bribery may be committed only in the

attempted and consummated stages because in a
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. Thus, only attempted and
consummated.
Buhian taka basta muhatag ka 200k. - That it not

bribery but Robbery under paragraph 5 of Article
295.
If the victim actually committed a crime, and the
policeman demanded money so he will not be
arrested, that would be Bribery.
There is no frustrated corruption and frustrated

bribery because these crimes involve concurrence of
the will of the corruptors and the public officer.
Hence, once they will concur, the crime is
consummated. If the public officer refuses to be
corrupted, then the crime is Attempted Corruption of
Public Officer.
If no crime has been committed but the policeman is

falsely charging him for having committed one, or
threatening to arrest him, then the crime would be
robbery.
What are the elements of the crime:
You cannot be a giver unless there is one who is

willing to receive. And there cannot be a receiver
unless there is one who is willing to give.
1. the offender is a public official

2. he accepts gifts
3. the gifts are offered by reason of his office
Take note that the public officer receives gifts,
money or anything of value by reason of his office.
So this crime requires 2 persons to commit. There

has to be a meeting of the minds.
If there is only a promise of the gift or money, no

crime is committed because the language of the law
which uses the phrase shall accept gifts. The gift is
given in anticipation of future favor from the public
officer.
If the public official accepts the corrupt consideration

and turns it over to the superior as evidence of the
corruption. The offense is attempted corruption only.
Why? Because the official did not agree to be
corrupted.
In indirect bribery, the public officer receives or

accepts gifts. The public official does not undertake
to perform an act or abstain from doing an official
duty from what he received. Instead, the official
simply receives or accepts gifts or presents delivered
to him, with no other reason, except his office or
public position. This is always committed in the
consummated stage.
If the public officer did not report and actually

accepted the gift, he allowed himself to be corrupted.
The corruptor becomes liable for the consummated
crime of corrupting public official and the official also
becomes liable for consummated bribery.
Kwento about pansit and barang and mahiwagang
bato from Siquijor :P
If a public official demanded something from the
taxpayer who pretended to agree and used marked
24
Criminal Law II TSN

2nd Exam Coverage
There is no attempted much less frustrated in the

crime of Indirect Bribery. It is always committed in
the consummated stage.
liable under this law. The prohibition is for past or

future favors. The giving of parties by reason of a
promotion of a public official is also punishable even
if it calls for a celebration. Take note also that the
giving of a party is not only limited to the public
officer but also to any member of his family.
Remember that there must always be clear intention

on the part of the public officer to take the gift or
bribe or consider the property as his own at that
moment. Mere physical receipt unaccompanied by
any sign, circumstance, or act to show such
acceptance is not sufficient to convict the officer for
the crime of indirect bribery,
It is punishable for any public official or employee,

whether of the national or local governments, to
receive, directly or indirectly, and for private persons
to give, or offer to give, any gift, present or other
valuable thing to any occasion, including Christmas,
when such gift, present or other valuable thing is
given by reason of his official position, regardless of
whether or not the same is for past favor or favors or
the giver hopes or expects to receive a favor or
better treatment in the future from the public official
or employee concerned in the discharge of his official
functions.
The SC has already made the rule that for indirect

bribery to be committed, the public officer must have
performed an act of appropriating the gift for
himself, his family or employees. It is the act of
appropriating the signifies acceptance. If you do not
accept, you do not commit indirect bribery.
Mere delivery of the gift to public officer does not
bring about the crime otherwise it would be very
easy to remove a public officer. How? Just deliver a
gift to him. Lisod pod. Matanggal ming tanan there
must be acceptance. There must be clear intention
on the part of the public off to accept the gift.
Included within the prohibition is the throwing of

parties or entertainments in honor of the official or
employees or his immediate relatives.
Eg. Chief of Police bought a 4M worth of SUV for only

1.5M. What is the crime committed by CP? Indirect
bribery, the RPC defines indirect bribery as a public
officers acceptance of gifts offered to him by reason
of his office.
The throwing of a party is not limited to the officers

only but also to the members of this family.
Another law, Presidential Decree No. 749. The decree
grants immunity from prosecution to a private person
or a public officer who shall voluntarily give
information and testify in a case of bribery or any
violations of the Anti-Graft and Corrupt Practices Act.
This law provides immunity to the bribe giver if he
does two things. What are these?
Article 212. Corruption of public official.

In this article is the giver who is punished. The
receiver is liable for the crime of bribery. This
provision of law may be confused with Art 17 one
who induces another to commit the felony is a
principal by inducement while the one induced is the
criminally liable as principal by direct participation.
1. He voluntarily discloses the transaction he had

with the public officer constituting direct or indirect
bribery or any other corrupt transaction.
This principle is not applicable when there is a

specific provision of law that punishes a specific act.
We only apply the general principles in the absence
of the specific provision of law for a particular
situation. Public officers receiving gifts and private
officers giving gifts for any occasion including
Christmas are liable not only under Article 211 but
also under PD 46.
2. He must readily testify against the public officer

involved in the case.
What is this PD 46? This presidential decree prohibits

giving and acceptance of gifts by any public officer or
to an officer even during anniversaries or any gift
giving occasions. Both the giver and the receiver are
1. The information must refer to consummated

violations of any of the above-mentioned provisions
of law, rules and regulations;
Before the bribe giver may be dropped from the

information he has to be charged first with the
receiver. Before trial the prosecutor will move for the
dropping of the bribe giver from the information and
be granted immunity.
But first there are 5 conditions to be met:
25
Criminal Law II TSN

2nd Exam Coverage
2. The information and testimony are necessary for

the conviction of the accused public officer;
4. By obtaining, receiving or accepting directly or

indirectly any shares of stock, equity or any other
form of interest or participation including the promise
of future employment in any business enterprise or
undertaking;
3. Such information and testimony are not yet in the

possession of the State;
4. Such information and testimony
corroborated on its material points; and
can
5. By establishing agricultural, industrial or

commercial monopolies or other combinations and/or
implementation of decrees and orders intended to
benefit particular persons or special interests; or
be
5. The informant or witness has not been previously

convicted of a crime involving moral turpitude.
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.
Article 211-A qualified bribery. Take a look at the

elements of the crime.
RA 7080. The law on plunder. This has been asked
several times in the bar: what is Plunder?
We ask the question. Is the crime under 7080 a

malum prohibitum or a mala in se?
Plunder is a crime penalized under RA 7080 which

became effective in 1991. This crime somehow
modified certain crimes in the RPC in so far as overt
acts by which the public officers amasses ill-gotten
wealth which are considered as crimes under the RPC
like bribery, indirect bribery, fraud against the
treasury, frauds, malversation. When the ill gotten
wealth amounts to total value of (before 75M) 50M.
You know, RA 7080 appears to be malum prohibitum.

Although it may appear as malum prohibitum
however it is a different kind of malum prohibitum
because the law says, and I quote,
in the imposition of penalties the degree of
participation and the attendance of the aggravating
and mitigating circumstances shall be considered by
the court.
If 49M, small time! Di na plunder. Maybe

malversation lang yan. But if it reaches the amount
of 50 M, plunder. Short of the amount, it is only a
violation of the RPC or of Anti-Graft and Corrupt
Practices Act.
So it borrows some of the principles of the RPC. It

will make applicable the mitigating and aggravating
circumstances enumerated in the RPC. Although it is
a malum prohibitum but somehow it is a mixture of
malum prohibitum and mala in se because the law
provides that the imposition of penalties depends on
the degree of participation and the attending
circumstances under the RPC.
What is the prescriptive period of plunder? 20 years

from last overt act.
How is the crime of plunder committed?
What is our basis? Estrada Vs. Sandiganbayan 2001.

Another case is Estrada Vs. Sandiganbayan Feb 26,
2002. And the case of Serapio Vs. Sandiganbayan
decided on Jan 28, 2003. The Wellex Group Inc., Vs.
Sandiganbayan. June 25, 2012.
Combination or series of overt acts by:

1. Through misappropriation, conversion, misuse or
malversation of public funds or raids on the public
treasury;
2. By receiving, directly or indirectly, any
commission, gift, share, percentage, kickbacks or
any/or entity in connection with any government
contract or project or by reason of the office or
position of the public officer concerned;
Section 3. Jurisdiction belongs to SB. All prosecution

belongs to SB, unless otherwise provided by law.
Section 6. Prescriptive period. 20 years
Asked in the 2011 bar exams: which of the following
crimes is an exception to the territoriality Rule in
Criminal Law?
3. By the illegal or fraudulent conveyance or

disposition of assets belonging to the National
government or any of its subdivisions, agencies or
instrumentalities or government-owned or controlled
corporations and their subsidiaries;
D. Plunder committed by a public officer abroad
26
Criminal Law II TSN

2nd Exam Coverage
"involved in" has consistently been interpreted

broadly by courts to include any property involved in,
used to commit, or used to facilitate the crime.38
Is it a Mala In se or Mala prohibita? It is a Mala in se

which requires proof of criminal intent.
This is the ruling of the court in Estrada vs. SB : it is
Mala in se. the elements of Mens Rea must be
proven in a prosecution for plunder. It is noteworthy
that the information alleges the crime of plunder
which was committed unlawfully, willfully and
criminally.
Petitioners interpretation of Section 2 of R.A. 7080 is

narrow and rigid and defeats rather than serves the
ends of justice in plunder cases. Section 2 of R.A.
7080 mandates the court to forfeit not only the illgotten wealth, interests earned, and other incomes
and assets, but also the properties and shares of
stock derived from the deposit or investment. The
Sandiganbayan Decision imposed the penalty of
forfeiture when it convicted the former President
Estrada of the crime of plunder. It is beyond cavil
that it found the subject IMA Trust Account traceable
to the accounts declared to be ill-gotten by the
former President. Thus, to rigidly construe the
mandate of Section 2 of R.A. 7080, as petitioner
would want us to do, is to render the Plunder Law
inutile.
The principle of mitigating and aggravating

circumstances will apply in the crime of plunder.
Facts: former President Estrada was charged with
plunder. According to the information, he acquired
4Billion. He however challenged the constitutionality
of the Plunder Act.
First, that it is void for being vague in its usage of
the following words series, combination, and
pattern.
Second, the law is vague for being overbreadth
The provision of Section 2 must be interpreted in its

entirety and cannot be confined to words and
phrases which are taken out of context. The trunk of
the tree of forfeiture under Section 2 is ill-gotten
wealth and the branches of the ill-gotten wealth are
the interests, incomes, assets, properties and shares
of stocks derived from or traceable to the deposit or
investment of such ill-gotten wealth.
Third, RA 7080 dispenses with the reasonable

standards thereby violating the right to due process.
Issue: WON RA 7080 is unconstitutional.
Ruling: Upheld the Constitutionality.
These are the acts punishable under RA 7080: (did
not mention)
Interpreted otherwise, what should be forfeited are

assets in whatever form that are derived or can be
traced to the ill-gotten wealth as defined under subpars. 1-6, par. (d), Section 1 of the Plunder Law.
Should Assets (sic) not derived, nor traceable to the
ill-gotten wealth be forfeited in favor of the State,
such would result in deprivation of property without
due process of law.
Check Section 2:
The court shall declare any and all ill-gotten wealth
and their interests and other incomes and assets
including the properties and shares of stock derived
from the deposit or investment thereof forfeited in
favor of the State.
Under the AMLA, plunder is one of those in violation
of the AMLA.
Not only does the Plunder Law authorize the

forfeiture of the ill-gotten wealth as well as any asset
acquired with the use of the ill-gotten wealth, Section
6 likewise authorizes the forfeiture of these ill-gotten
wealth and any assets acquired therefrom even if
they are in the possession of other persons.
Case: Estrada vs. SB, 2012

Forfeiture in a criminal case is considered in
personam, similar to a money judgment that runs

against a defendant until it is fully satisfied.36 This
criminal forfeiture is considered part of the criminal
proceedings against the defendant, rather than a
separate proceeding against the property itself.37 The
scope of criminal forfeiture by the government
includes any property, real or personal, involved in
the crime or traceable to the property. The term
RA 3019. Anti Graft and Corrupt Practices Act.

Who may be liable?
The law punishes not only public officers but also
who induce the public official to commit the offeses
in Section 3. Meaning, a private official can also be
27
Criminal Law II TSN

2nd Exam Coverage
liable. This is the Ruling of the SC in the case of ___

vs PP, March 3 2010.
the presumption is that, unless the accused is

suspended, he may frustrate his prosecution or
commit further acts of malfeasance or both. There is
a possibility that you will whitewash or destroy all the
documentary evidences to be used against you.
Thats the reason.
What does the term receiving any gift include?

Section 2:
"Receiving any gift" includes the act of accepting
directly or indirectly a gift from a person other than a
member of the public officer's immediate family, in
behalf of himself or of any member of his family or
relative within the fourth civil degree, either by
consanguinity or affinity, even on the occasion of a
family celebration or national festivity like Christmas,
if the value of the gift is under the circumstances
manifestly excessive.
What is the duration of the preventive suspension? In

the case of Bayot vs Sandiganbayan, et.al, the SC
held that once the information is found to be
sufficient in form and in substance, the court must
issue the suspension order as a matter of course.
Trial court or the Sandiganbayan, depending on your
salary grade, must suspend the respondent. That is
the procedure.
For example: Christmas. You receive a diamond ring

from a lawyer. You are courting trouble there.
Manifestly excessive.
Under section 13 of RA 3019, the law is silent as to

how long the accused public officer is supposed to be
held under suspension. There were so many
decisions of the SC na pa flip flop flip flop. First is 90
days, then 60 days, then 60 days 90 days until the
SC settled once and for all that the period of
suspension should not be more than 90 days. Thats
the ruling of the Court in the case of Segovia vs
Sandiganbayan. So, the period is 90 days.
Take note that under Section 8, the law gives a

prima facie evidence:
Section 8. Dismissal due to unexplained
wealth. 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
2010 bar exam: May a public officer charged under

section 3(b) of RA 3019 (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) also be
simultaneously or subsequently charged with direct
bribery under Article 210 of the RPC? Meaning, can
you be charged both for violation of RA 3019 and
article 210 of the RPC? YES! An accused may be
charged for both offenses because the elements of
direct bribery are different from that of sec. 3(b) of
RA 3019. So, you cannot invoke that there is double
jeopardy.
Such is a prima facie evidence of violation of the RA

3019. If you are only a clerk, but you are living in
Royal Pines and with plenty of Jaguars, there is a
prima facie evidence.
Properties in the name of the spouse and unmarried
children of such public official may be taken into
consideration, when their acquisition through
legitimate means cannot be satisfactorily shown.
Bank deposits shall be taken into consideration in the
enforcement of this section, notwithstanding any
provision of law to the contrary.
Bank deposits, ostentations displays, travels abroad,
manifestly excessive shall be taken into account.
Again, 2010 bar exam: Proserfina, an assistant public

high school principal, acted to facilitate the release of
salary differentials and election duty per diem of
classroom teachers with the agreement that they
would reimburse her for her expenses. Did Proserfina
commit a violation of RA 3019? No, because even if
Proserfina was a public officer, the facts show
however that she did not intervene in her official
capacity. That is the requirement under RA 3019.
Now, remember when you are charged for violation

of RA 3019, you can be facing what we call
preventive suspension. What is the reason why we
have to preventively suspend you? You know
preventive suspension is resorted to in order to
prevent the accused from using his office to
intimidate witnesses or frustrate his prosecution or
continue committing malfeasance in office because
28
Criminal Law II TSN

2nd Exam Coverage
She was only a mere teacher. Reasonable ba nga wa

may (inaudible)
concur for a person to be liable under section 3(e) of

RA 3019. To be found guilty under said provision, the
following elements must concur:
Take a look at the provision of the law in RA 3019,

(c) Directly or indirectly requesting or receiving any
gift, present or other pecuniary or material benefit,
for himself or for another, from any person for whom
the public officer, in any manner or capacity, has
secured or obtained, or will secure or obtain, any
Government permit or license, in consideration for
the help given or to be given, without prejudice to
Section thirteen of this Act. Now, we ask the
question, kasi oh, accepting or having any member
of his family accept employment in the private
enterprise, etc. Does a brother-in-law fall within the
definition of family? This was answered by the SC
in the case of Valera vs Ombudsman (February 27,
2008). The SC said that one need not look beyond
the provisions of RA 3019 to hold that a brother-inlaw falls within the definition of family under
section 3(d) thereof. It went on to say that RA 6713
itself prohibits the act of POs and employees during
their incumbency to recommend any person to any
position in the private enterprise which has a regular
or pending official transaction with their office. The
SC held:
(1) the offender is a public officer;

(2) the act was done in the discharge of the
public officers official, administrative or judicial
functions;
(3) the act was done through manifest
partiality, evident bad faith, or gross
inexcusable negligence; and
(4) the public officer caused any undue injury
to
any
party,
including
the
Government, or gave
any
unwarranted
benefits, advantage or preference.
Now, lets take the case of People vs. Ong (2009),

Ong, as mayor of Isabela, bought an Isuzu dump
truck for 750,000 pesos from Ching for the use of the
municipality. A letter complaint was filed against
petitioner by her successor, mayor Siquian and
several other Sangguniang Bayan members7 before
the Office of the Ombudsman, accusing her of
malversation of public funds and property in
connection with several alleged irregularities
committed during her term as Mayor of Angadanan,
including the purchase of the dump truck for being
grossly overpriced. The Graft Investigation Officer I
Germain G. Lim found no probable cause to hold
petitioner
liable
for
the
charges.
Upon
reconsideration however, she was indicted for
violation of Sec. 3 (e) of RA No. 3019, as amended,
with respect to the acquisition of the dump truck.
Now, during the trial, Ramon De Guzman Sevilla,
Sales Manager of Christian Motor Sales in
Cabanatuan City, Nueva Ecija, testified that the cost
of a ten wheeler-front drive, military type Isuzu
dump truck ranges from P190,000.00-P490,000.00.
So, the complainants testified that the dump truck
was bought without conducting a public bidding or a
resolution by the Sangguniang Bayan; that the truck
was merely reconditioned and not brand new as can
be seen from its deplorable condition, worn tires and
old battery; and that a subsequent canvass of other
suppliers showed that better quality dump trucks cost
no more than P500,000.00. The Sandiganbayan
rendered its decision finding petitioner Ong guilty of
violation of section 3(e) of RA 3019. Nalugi ang
government. The issue is, whether the act of
What petitioner fails to mention is that R.A.

No. 6713 itself prohibits the act of public
officials
and
employees
during
their
incumbency to recommend any person to any
position in a private enterprise which has a
regular or pending official transaction with their
office.22 Certainly, the definition of the word
"family" under said law would unduly limit and
render meaningless Section 3(d) of R.A. No.
3019 if applied to the latter. In fact, family
relation is defined under Section 4 of R.A. No.
301923 which, according to the said section,
"shall include the spouse or relatives by
consanguinity or affinity in the third civil

degree." Thus, we need not look beyond the
provisions of R.A. No. 3019 to hold that a
brother-in-law falls within the definition of
family under Section 3(d) thereof.
What about causing any undue injury to any party,
including the government, or giving any private party
any unwarranted benefits, advantage or preference?
In order to hold a person liable under section 3(e),
what are the facts that need to be proved? This was
discussed by the SC in the case of Sison vs People
(March 9, 2010). There are 4 elements that must
29
Criminal Law II TSN

2nd Exam Coverage
petitioner constitutes a violation of section 3(e) of RA

3019. The SC finds that all the elements of the
offense charged have been duly established beyond
reasonable doubt.
2011 bar exam: Dr. Chow, a government doctor,

failed to submit his DTR from January to March 2000
and did not get approval of his sick leave application
for a credit(?) because of evidence that he was
actually moonlighting (having a second job in
addition to one's regular employment) elsewhere.
The common sickness on the part of the doctors...
moonlighting. Thus, the medical director caused the
withholding of his salary for the periods in question
until he submitted his DTR in 2000. Now, can Dr.
Chow prosecute the medical director for causing him
undue injury in violation of the anti-graft and corrupt
practices act pursuant to section 13(?) of RA 3019?
No, since Dr. Chow brought it upon himself having
failed to submit the required documents. He cannot
go after the medical director for withholding his
salary. There is no undue injury.
Petitioner, being then the Mayor of

Angadanan, Isabela is a public officer
discharging
administrative
and
official
functions. The act of purchasing the subject
truck without the requisite public bidding and
authority from the Sangguniang Bayan displays
gross and inexcusable negligence. Undue injury
was caused to the Government because said
truck could have been purchased at a much
lower price.
Didto gyud ka sa taas nga naay mas mubo nga
presyo. According to the SC, the Sandiganbayan
correctly ruled that by procuring the subject truck
through
a negotiated
purchase without public
bidding, petitioner failed to comply with the above
stated procedure. Indeed, as the local chief
executive, petitioner is not only expected to know the
proper procedure in the procurement of supplies, she
is also duty bound to follow the same and her failure
to discharge this duty constitutes gross and
inexcusable negligence.
2005 bar exam: During a PNP buy-bust operation,

Kao Shi was arrested for selling 20 grams of shabu to
a poseur-buyer. Kao Shi, through an intermediary,
paid Patrick, the evidence custodian of the PNP
forensic chemistry section, the amount of 500,000 in
consideration for the destruction of the drugs. Patrick
managed to destroy the drugs. State with reasons
whether Patrick committed the following crimes:
direct bribery, section 3(e) of RA 3019 and
obstruction of justice under PD 1829. What are the
crimes committed here? Patrick violated section 3(e)
of RA 3019 by causing undue injury to the
government through evident bad faith giving
unwarranted benefits to the offender by destroying
evidence of the crime. Obstruction of justice was also
committed by reason of the destruction of evidence
intended to be used in a criminal proceeding. What
about the fact of direct bribery? Yes.
The price quotations obtained from several

suppliers24 as well as the testimonies of Ramon
de Guzman Sevilla, Ruben Lappay and Mirasol
Lappay proved that the dump truck purchased
by petitioner was over-priced. Hence, had
petitioner observed the proper procurement
procedure, the municipality of Angadanan could
have acquired a dump truck similar to, if not
better than the one originally bought, at a
much lower price of not more than
P500,000.00. Without doubt, petitioners
negligence caused undue injury to the
government while at the same time gave
unwarranted benefits to Josephine Ching.
What do you understand of conspiracy by silence or

inaction under RA 3019? Lets take the case of Jaca,
et. al vs People (January 28, 2013). Remember this
theory because this has relation with the case of
Arias vs Sandiganbayan. Now, what happened in the
case of Jaca? Petitioners occupied appointive
positions in different positions of Cebu Citycity
administrator, city treasurer, city accountant and
cashier. A surprise audit was conducted by the city
auditor of these divisions and they found out that the
paymaster incurred a cash shortage in the amount of
18.5 million pesos. The reason for the cash shortage
was because of the failure to follow the accounting
procedure laid down under existing laws. Yun bang
liquidation diba? If youre in the government, you
Now, must all of the circumstances be present in

order to convict the accused? The SC held in the case
of Sison vs People that it is not necessary. The third
element of Section 3 (e) of RA 3019 may be
committed in three ways, i.e., through manifest
partiality, evident bad faith or gross inexcusable
negligence. Proof of any of these three in connection
with the prohibited acts mentioned in Section 3(e) of
RA 3019 is enough to convict.
30
Criminal Law II TSN

2nd Exam Coverage
noticed you are required to liquidate (inaudible)

until such time na nag-pile up. Now, according to the
findings of the auditor, there was gross inexcusable
negligence that facilitated, promoted, if not
encouraged, the commission of malversation of
funds. As a result of that, mayor Garcia filed a
criminal and admin case against the paymaster, etc.
Now, the filing of the complaint resulted in the
investigation and filing of violation of sec. 3(e) of RA
3019 by the Ombudsman before the sandiganbayan.
They were all convicted. All petitioners argued that
they should not be made liable for the crime. Sabi
nya, wala man, paymaster lang man ko. I just sign
whatever document that is brought to us. As long as
there is a counter signature, thats the reason why I
sign. I would not sign if there is no signature. The
SC said, the petitioners are all heads of their
respective offices that perform interdependent
functions in the processing of cash advances. The
petitioners attitude of buck-passing in the face of the
irregularities in the voucher (and the absence of
supporting documents), as established by the
prosecution, and their indifference to their individual
and collective duties to ensure that laws and
regulations are observed in the disbursement of the
funds of the local government of Cebu can only lead
to a finding of conspiracy of silence and inaction. I
believe you are all familiar with the case of Arias vs
Sandiganbayan. What is the theory in that case? If I
am the head of office and I have so many staff
involved in the distribution, delivery, etc. of services
to the public and once an item or document is placed
on my table for me to sign and when I saw that the
reviewing body or committee has already approved
it, I will also approve it. Now, the court in the case of
Ba..(?) vs Sandiganbayan, said ah, wala nay liability
because somehow, somewhere you gave your trust
to your staff Sila nay liable, dili ikaw! Thats the
theory in the case of Arias. Arias doctrine. You are
not liable because gi-review man na nila! Ikaw, igo ra
man ka ni-approve. So, it is not expected of you to
busisi busisi pa all the documents when these were
already reviewed by your staff. So, in Arias, not liable
because somehow you have to give your trust to
your staff. Theyre expected to perform regularly
their functions. But, in this case of Jaca, et. al, the
SC said that your silence and inaction would make
you criminally liable. Thats your theory now.
Conspiracy by silence or inaction. So, when you
become supervisors or head of an agency or office,
see to it that you will not rely solely on the Arias
doctrine. Mahirap na. Remember, your inaction

would make you also criminally liable.
Lets go to Article 213 of the RPC. Frauds against the
public treasury and similar offenses. There are 4 acts
that are made punishable here.
ARTICLE 213. Frauds Against the Public
Treasury and Similar Offenses. The penalty
of prisin correccional in its medium period to
prisin mayor in its minimum period, or a fine
ranging from 200 to 10,000 pesos, or both,
shall be imposed upon any public officer who:
1. In his official capacity, in dealing with any
person with regard to furnishing supplies, the
making of contracts, or the adjustment or
settlement of accounts relating to public
property or funds, shall enter into an
agreement with any interested party or
speculator or make use of any other scheme,
to defraud the Government;
2. Being entrusted with the collection of taxes,
licenses, fees and other imposts, shall be guilty
of any of the following acts or omissions:
(a) Demanding, directly or indirectly, the
payment of sums different from or larger than
those authorized by law.
(b) Failing voluntarily to issue a receipt, as
provided by law, for any sum of money
collected by him officially.
(c) Collecting or receiving, directly or indirectly,
by way of payment or otherwise, things or
objects of a nature different from that provided
by law.
When the culprit is an officer or employee of
the Bureau of Internal Revenue or the Bureau
of
Customs,
the
provisions
of
the
Administrative Code shall be applied.
When I was new in the judiciary, I used to be in the

private practice, so dakog tax, but when I joined the
judiciary, I was served a notice from the BIR uy!
You overshoot the ceiling, you reached the highest
ceiling, so this is your tax So, I entered into a
compromise with the BIR. The compromise is for me
to pay 50k and indeed the BIR people issued an O.R.
for the payment of the compromised amount. Ang
resibo ani ha ing-ani, 100 ang resibo ani pero dapat
31
Criminal Law II TSN

2nd Exam Coverage
ang ihatag nimo sa akoa is 300 Ngano man na?

Tulo man mi magbahin You will be liable under
Article 213 for failing voluntarily to issue a receipt, as
provided by law, for any sum of money collected by
him officially. (story about ORs and sales invoice)
misappropriation or malversation of such

funds or property.
Now, in determining whether the offender is liable for
malversation, it is the nature of the duties of the
public officer that controls. While the name of the
office is important, what is controlling is whether in
performing his duties as a public officer, he has to
account or is required by the nature of the
performance of his duties to render an account of
money or property that came to his possession. So,
even a mere clerk can commit the crime of
malversation. This is one crime where the guilt of the
accused is presumed. This is alleged in the last
paragraph of Article 217. The presumption is
disputable and comes into play only after a demand
has been made by a person duly authorized to do so
(like COA). Malversation can only be committed by a
public officer or employee. A private person can
commit malversation, however, in 3 instances:
Now, the essence of the crime under Article 213 is

making the pay for something he received(?) or
making him pay more than what is due. It is also
committed by demanding more than the amount,
which should properly be refunded. This, of course,
is usually in cases where a public officer whose
official duty is to procure supplies for the government
to enter into a contract for government transactions,
connives with the said supplier, with the intention to
defraud the government. Now, what is contemplated
here is the act of a public officer who enters into an
agreement or arrangement with private individuals
concerning the of supplies to the government but
under the scheme adopted to benefit such public
officer from the contract or transaction. It is
considered as fraud or deceit against the public
treasury because in the end the transaction will result
in the loss of income on the part of the government.
1. when the private person conspires with the

public officer;
2. when he plays a direct participation or
cooperates in the commission of malversation
in connivance with the public officer; and
3. if the private person be charged with any
national provision or any municipal tax(?),
revenue or (inaudible).
Illustration for application of Article 213: you will

purchase the poorest quality of ink and paid as if it
were of superior quality. A public official who is in
charge of procuring supplies for the government,
obtained funds for first-class materials and buys
inferior quality products and pockets the excess of
the funds. Sometimes, it is done in tong-pats.
Remember, article 217 gives a presumption. There is

a rule that the accused must overcome the
presumption that is laid down under Article 217.
BQ: accused was the duly appointed cashier of the
treasurers office of Albay. During an audit of her
cash and accounts, he was found to have incurred a
shortage of 2.5 million pesos. Because she failed to
produce any cash and valid cash items to effect the
shortage(?) in her account ambiguities, she was
charged with malversation of public funds. Her
defense, based on the Tizon ruling, is that she did
not benefit a single centavo from the missing funds
and that said funds were just coursed as cash
advances to her co-employees in good faith and in
continuance of a practice tolerated in her office. SC
ruled that if an accountable public officer did not take
the missing funds for his personal use and having
allowed others to freely participate in the chits(?) or
vales(?) the practice which has been tolerated even
during the time of his predecessor and there is no
negligence proximating(?) malice or fraud because
the wrong payments were made in good faith, said
public officer may be acquitted of malversation.
Article 215, prohibited transactions. A good example

of this would be in the case of a provincial engineer
who has knowledge of the proposed construction of
a superhighway that would traverse vast tracts of
land and in anticipation of the increase in the market
value of the land, he buys several parcels of land
along the proposed highway, which is within his
jurisdiction as provincial engineer. Very familiar noh?
Thats what happened to Villar sa C5.
Article 217, malversation of public funds. What are
the elements of the crime?
1. The offender is a public officer;
2. He is accountable for public funds or property
by reason of his duties;
3. He appropriates or takes or misappropriates
or shall consent, through abandonment or
negligence, shall permit any other person to
take such public funds, or property, wholly or
partially, or shall otherwise be guilty of
32
Criminal Law II TSN

2nd Exam Coverage
According to the court, the practice of disbursing

public funds under the vale system as a defense in
malversation cases (inaudible).. In Camello vs
Sandiganbayan, it was ruled that the giving of vales
by the public officer out of their accountable funds is
prohibited by PD 1145, otherwise known as the
Government Auditing Code of the Philippines, and
memorandum circular no. 570. The grant of loans
through the vale system is a clear case of an
accountable officer consenting to the improper or
unauthorized use of public funds by other persons
which is punishable by law.
constitution as it is not a penalty. Persons under

preventive suspension remains entitled to the
constitutional presumption of innocence since his
culpability must still be established.
Now, in the bar exam: an unlicensed firearm was

confiscated by a policeman. Instead of turning over
said firearm to the proper custodian for the
prosecution of the offender, the policeman sold the
firearm. The crime committed by the policeman is
malversation. Why? Because the firearm is subject to
his accountability. Having taken custody of the
firearm, he is supposed to account for it as evidence
for the prosecution of the offender. Just like
cellphones confiscated during the arrest.
How long is the suspension? In the case of Segovia

vs Sandiganbayan, it is 90 days.
How do we suspend you? The moment there is an

information and there was already a conduct of
arraignment where you will plead NOT guilty to the
information. The moment you enter your plea of not
guilty, thats the time that the court will issue the
corresponding order suspending you from your
present position.
What if it is the judge that is the subject of

malversation? Ang judge maoy corrupt. Unsa man
iyang icorrupt? Tong mga taya nga gi-confiscate sa
last 2han. Pila man pud? 200 pesos. Now, if it is the
judge that is the subject of the complaint, where do
you file? In the case of Salvador vs Pelayo (July 6,
2000), Salvador filed a case against a judge before
the office of the ombudsman kasi he believed na
judge is a public official and jurisdiction should be,
for purposes of preliminary investigation, with the
ombudsman. The issue is whether or not the
ombudsman has jurisdiction to entertain criminal
charges against a judge in connection with his
handling of cases. Here, in this case, the complainant
insisted that it should be the ombudsman, not the
SC, that should investigate the judge because the
complaint is criminal and not administrative. The SC
held, reiterating the ruling in Joaquin vs Borromeo
241 SCRA 408, that before a civil or criminal action
against a judge for violation of the RPC, there must
first be a final and authoritative judicial declaration
that the decision covering(?) the question is
(inaudible) There should be an administrative
finding first to be done by the SC. If you file it
directly with the ombudsman, the ombudsman will
just transmit the case to the SC because it is the
latter that will conduct the investigation. If the SC
declares that the judge committed the crime, they
are going to dismiss the judge and aside from that,
there is a proviso there that the IBP or DOJ shall file
a case against said judge for malversation. That is
what happened to the late provincial prosecutor
Arafol of Comval. So, ombudsman does not have
jurisdiction over judges. It is with the SC. It is only
when the SC declares that the judge is criminally
Can the buyer be liable under the anti-fencing law?

So, if you purchased the firearm the policeman was
selling, will you be liable under the anti-fencing law?
No, because the crime is not theft nor robbery, but
malversation, which is not contemplated under the
anti-fencing law.
BQ: A member of the PNP went on absence without
leave. He was charged for malversation of the
firearm issued to him. After 2 years he came out of
hiding and surrendered the firearm. What crime was
committed? The crime committed was malversation.
Payment of the amount misappropriated or
restitution of property misappropriated does not
erase criminal liability but only civil liability.
Now, what is that kind of preventive suspension that
is being laid down under section 13? That suspension
is not penal in character, but merely a preventive
measure before final judgment is given.
What is the purpose of the suspension? To prevent
the accused from hampering his prosecution by
intimidating or influencing his witnesses.
Is that suspension violative of the right of the
accused to be presumed innocent until the contrary
is proven? The SC, in the case of Gonzaga vs
Sandiganbayan, held that it is not violative of the
33
Criminal Law II TSN

2nd Exam Coverage
liable that a criminal action should be instituted

against the judge.
conspiracy between them can no longer be proved or

that their alleged conspiracy is already expunged.
The only thing extinguished by the death of
Secretary Enrile is his criminal liability. His death did
not extinguish the crime nor did it remove the basis
of the charge of conspiracy between him and private
respondent. Stated differently, the death of Secretary
Enrile does not mean that there was no public officer
who allegedly violated Section 3 (g) of R.A. 3019. In
fact, the Office of the Deputy Ombudsman for Luzon
found probable cause to indict Secretary Enrile for
infringement of Sections 3 (e) and (g) of R.A.
3019.14 Were it not for his death, he should have
been charged.
There is a new jurisprudence on PD 1564. This is the

law that amends commonwealth act no. 4075. This is
the Solicitation Permit Law. There is a special law.
Now, what is deemed prohibited here? Soliciting or
receiving contribution for charitable or public welfare
purposes, the omission to secure a permit from the
DSWD prior to soliciting or receiving contribution. So,
if you just go around the city and ask for solicitations
without securing permit from the DSWD, then you
will be liable under PD 1564. This is what happened
in People vs Castaeda. A priest solicited for the
construction of its church building without securing a
permit from the DSWD was held criminally liable for
PD 1564. And then there was a new case decided
just this year. A group of senior citizens that would
solicit para magbuild sila sa ilahang church. Ill give
to you the citation next meeting. Seldom can you
find jurisprudence dealing with PD 1564.
The requirement before a private person may be

indicted for violation of Section 3(g) of R.A. 3019,
among others, is that such private person must be
alleged to have acted in conspiracy with a public
officer. The law, however, does not require that such
person must, in all instances, be indicted together
with the public officer. If circumstances exist where
the public officer may no longer be charged in court,
as in the present case where the public officer has
already died, the private person may be indicted
alone.
October 6
PP v. Henry T. Go; March 25, 2014
As a recapitulation, it would not be amiss to point out

that the instant case involves a contract entered into
by public officers representing the government. More
importantly, the SB is a special criminal court which
has exclusive original jurisdiction in all cases
involving violations of R.A. 3019 committed by
certain public officers, as enumerated in P.D. 1606 as
amended by R.A. 8249. This includes private
individuals who are charged as co-principals,
accomplices or accessories with the said public
officers. In the instant case, respondent is being
charged for violation of Section 3(g) of R.A. 3019, in
conspiracy with then Secretary Enrile. Ideally, under
the law, both respondent and Secretary Enrile should
have been charged before and tried jointly by the
Sandiganbayan. However, by reason of the death of
the latter, this can no longer be done. Nonetheless,
for reasons already discussed, it does not follow that
the SB is already divested of its jurisdiction over the
person of and the case involving herein respondent.
To rule otherwise would mean that the power of a
court to decide a case would no longer be based on
the law defining its jurisdiction but on other factors,
such as the death of one of the alleged offenders.
At the outset, it bears to reiterate the settled rule

that private persons, when acting in conspiracy with
public officers, may be indicted and, if found guilty,
held liable for the pertinent offenses under Section 3
of R.A. 3019, in consonance with the avowed policy
of the anti-graft law to repress certain acts of public
officers and private persons alike constituting graft or
corrupt practices act or which may lead
thereto.12 This is the controlling doctrine as
enunciated by this Court in previous cases, among
which is a case involving herein private respondent.13
The only question that needs to be settled in the
present petition is whether herein respondent, a
private person, may be indicted for conspiracy in
violating Section 3(g) of R.A. 3019 even if the public
officer, with whom he was alleged to have conspired,
has died prior to the filing of the Information.
Respondent contends that by reason of the death of
Secretary Enrile, there is no public officer who was
charged in the Information and, as such, prosecution
against respondent may not prosper.
The Court is not persuaded.
It is true that by reason of Secretary Enrile's death,
there is no longer any public officer with whom
respondent can be charged for violation of R.A. 3019.
It does not mean, however, that the allegation of
34
Criminal Law II TSN

2nd Exam Coverage
Can there be double jeopardy when one is charged

for violation of Sec 3 of RA 3019 and at the same
time also charged under Art 210 for Direct Bribery?
Double jeopardy does not attach.
public officer and are hereby declared unlawful:

xxx xxx xxx
(b) Directly or indirectly requesting or receiving any
gift, present, share percentage or benefit, for himself
or for any other person, in connection with any
contract or transaction between the Government and
any other party, wherein the public officer in his
official capacity has to intervene under the law.
Merencillo v. PP; April 13, 2007
Petitioner Was Not Placed In Double Jeopardy
xxx xxx xxx
Section 3 of RA 3019 begins with the following

statement:
The elements of the crime penalized under Section

3(b) of RA 3019 are:
Sec. 3. In addition to acts or omissions of

public officers already penalized by existing
law, the following [acts] shall constitute corrupt
practices of any public officer and are hereby
declared unlawful:

(2) he requested or received a gift, present,
share, percentage or benefit;
xxx xxx xxx (emphasis supplied)
(3) he made the request or receipt on behalf

of the offender or any other person;
One may therefore be charged with violation of RA

3019 in addition to a felony under the Revised Penal
Code for the same delictual act, that is, either
concurrently or subsequent to being charged with a
felony under the Revised Penal Code.27 There is no
double jeopardy if a person is charged
simultaneously or successively for violation of Section
3 of RA 3019 and the Revised Penal Code.
(4) the request or receipt was made in

connection with a contract or transaction with
the government and
(5) he has the right to intervene, in an official
capacity under the law, in connection with a
contract or transaction has the right to
intervene.31
The rule against double jeopardy prohibits twice

placing a person in jeopardy of punishment for the
same offense.28 The test is whether one offense is
identical with the other or is an attempt to commit it
or a frustration thereof; or whether one offense
necessarily includes or is necessarily included in the
other, as provided in Section 7 of Rule 117 of the
Rules of Court.29 An offense charged necessarily
includes that which is proved when some of the
essential elements or ingredients of the former, as
alleged in the complaint or information, constitute
the latter; and an offense charged is necessarily
included in the offense proved when the essential
ingredients of the former constitute or form a part of
those constituting the latter.30
On the other hand, direct bribery has the following

essential elements:
(2) the offender accepts an offer or promise
or receives a gift or present by himself or
through another;
(3) such offer or promise be accepted or gift
or present be received by the public officer
with a view to committing some crime, or in
consideration of the execution of an act which
does not constitute a crime but the act must
be unjust, or to refrain from doing something
which it is his official duty to do and
A comparison of the elements of the crime of direct

bribery defined and punished under Article 210 of the
Revised Penal Code and those of violation of Section
3(b) of RA 3019 shows that there is neither identity
nor necessary inclusion between the two offenses.
(4) the act which the offender agrees to

perform or which he executes is connected
with the performance of his official duties.32
Section 3(b) of RA 3019 provides:
Clearly, the violation of Section 3(b) of RA 3019 is

neither identical nor necessarily inclusive of direct
bribery. While they have common elements, not all
the essential elements of one offense are included
Sec. 3. In addition to acts or omissions of public

officers already penalized by existing law, the
following shall constitute corrupt practices of any
35
Criminal Law II TSN

2nd Exam Coverage
Read the ff cases:
among or form part of those enumerated in the

other. Whereas the mere request or demand of a
gift, present, share, percentage or benefit is enough
to constitute a violation of Section 3(b) of RA 3019,
acceptance of a promise or offer or receipt of a gift
or present is required in direct bribery. Moreover, the
ambit of Section 3(b) of RA 3019 is specific. It is
limited only to contracts or transactions involving
monetary consideration where the public officer has
the authority to intervene under the law. Direct
bribery, on the other hand, has a wider and more
general scope: (a) performance of an act constituting
a crime; (b) execution of an unjust act which does
not constitute a crime and (c) agreeing to refrain or
refraining from doing an act which is his official duty
to do.
Republic v. Migrino 189 SCRA 289

Durez v PP; Aug 31, 2011 on RA 3019
Mallari v PP; Feb 8, 2012
Article 218. Failure of accountable officer to render
accounts. - Any public officer, whether in the service
or separated therefrom by resignation or any other
cause, who is required by law or regulation to render
account to the Insular Auditor, or to a provincial
auditor and who fails to do so for a period of two
months after such accounts should be rendered, shall
be punished by prision correccional in its minimum
period, or by a fine ranging from 200 to 6,000 pesos,
or both.
Although the two charges against petitioner stemmed

from the same transaction, the same act gave rise to
two separate and distinct offenses. No double
jeopardy attached since there was a variance
between the elements of the offenses charged.33 The
constitutional protection against double jeopardy
proceeds from a second prosecution for the same
offense, not for a different one.
The public officers who are bound to render accounts

are the following:
1.
2.
3.
4.
RA 1379 Forfeiture in favor of the Sale of Any

Property found to have been unlawfully acquired by
any employee. Now, under Sec 2, the law gives a
presumption that property is illegally acquired.
In the forfeiture proceeding, it is the State who will
institute such proceeding. When does the State take
action to forfeit a property? It is when the property is
manifestly out of proportion to own by somebody. If
you are acquiring a condominium worth 2.6 million
and your monthly salary is only 3,000, where the hell
did you get the money to pay your monthly
amortization? Aaaaahhhh. What is the presumption
there? CORRUPT KA! You are living beyond your
means.
Cashiers;
Store keepers;
Warehousemen;
Those who violates by the nature of the
position becomes custodian of public funds or
property.
What are the issues that should be tackled under Art

218? Whether or not the demand to render account
is necessary for you to become criminally liable. Now
in this article, demand to render an account is not
necessary. It is sufficient that there is a law or
regulation requiring him to render an account. It is
the failure to follow the requirement of the law or
regulation that is made punishable. It is not
necessary that the offender actually committed a
malversation because the object of the law is to
prevent the situation of the crime being committed
because of the failure of the accountable officer to
render an account.
So remember ha, it is the State that will institute the

proceeding. The prescriptive period is 4 years from
the date of resignation or dismissal but take note this
has been repealed by express mandate of the 1987
Constitution. It is already imprescriptible.
Manlangit v. PP; Aug 28, 2007

Article 218 consists of the following elements:
Art. 11, Sec 15
1. that the offender is a public officer,

whether in the service or separated
therefrom;
Section 15. The right of the State to recover

properties unlawfully acquired by public officials or
employees, from them or from their nominees or
transferees, shall not be barred by prescription,
laches, or estoppel.
2. that he must be an accountable officer for

36
Criminal Law II TSN

2nd Exam Coverage
public funds or property;
Citing United States v. Saberon, petitioner contends

that Article 218 punishes the refusal of a public
employee to render an account of funds in his charge
when duly required by a competent officer. He
argues that he cannot be convicted of the crime
unless the prosecution has proven that there was a
demand for him to render an account. Petitioner
asserts that COA Circular No. 90-331 provides that
the public officer shall be criminally liable for failure
to settle his accounts after demand had been made.
Moreover, petitioner asserts that the case had
become moot and academic since he already
submitted his liquidation report.
3. that he is required by law or regulation to

render accounts to the Commission on Audit,
or to a provincial auditor; and
4. that he fails to do so for a period of two
months after such accounts should be
rendered.
Nowhere in the provision does it require that there
first be a demand before an accountable officer is
held liable for a violation of the crime. The law is
very clear. Where none is provided, the court may
not introduce exceptions or conditions, neither may it
engraft
into
the
law
qualifications
not
contemplated.17 Where the law is clear and
unambiguous, it must be taken to mean exactly what
it says and the court has no choice but to see to it
that its mandate is obeyed.18 There is no room for
interpretation, but only application.
For the People, the Office of the Special Prosecutor

(OSP) counters that demand is not an element of the
offense and that it is sufficient that there is a law or
regulation requiring the public officer to render an
account. The OSP insists that Executive Order No.
292, Presidential Decree No. 1445, the COA Laws
and Regulations, and even the Constitution mandate
that public officers render an account of funds in
their charge. It maintains that the instant case differs
from Saberonwhich involved a violation of Act No.
1740 where prior demand was required. In this case
involving a violation of Article 218, prior demand is
not required. Moreover, the OSP points out that
petitioner even admitted his failure to liquidate the
funds within the prescribed period, hence, he should
be convicted of the crime.
This is the rule even if there is no demand for you

to render an account but the law requires you to
make an account, it is not necessary that there
should be a prior demand made by the COA. This
kind of circumstances is existing in the different
agencies of the government. But the law is clear that
you have to render an account even if there is no
demand.
We shall now resolve the issue at hand.
Lumauig v. PP; July 7, 2014
Article 218 consists ofthe following elements:

1. that the offender is a public officer,
whether in the service or separated
therefrom;
Prior demand to liquidate is not a

requisite for conviction under Article
218 of the Revised Penal Code.
2. that he must be an accountable officer for

public funds or property;
The central aspect of petitioners next argument is

that he was not reminded of his unliquidated cash
advances. The Office of the Special Prosecutor
countered that Article 218 does not require the COA
orthe provincial auditor to first make a demand
before the public officer should render an account. It
is sufficient that there is a law or regulation requiring
him to render an account. The question has been
settled in Manlangit v. Sandiganbayan19where we
ruled that prior demand to liquidate is not necessary
to hold an accountable officer liable for violation of
Article 218 of the Revised Penal Code:
3. that he is required by law or regulation to

render accounts to the Commission on Audit,
or to a provincial auditor; and
4. that he fails to do so for a period of two
months after such accounts should be
rendered. Nowhere in the provision does it
require that there first be a demand before an
accountable officer is held liable for a
violation of the crime. The law is very clear.
Where none is provided, the court may not
introduce exceptions or conditions, neither
may it engraft into the law qualifications not
contemplated. Where the law is clear and
unambiguous, it must be taken to mean
exactly what it says and the court has no
x x x [W]e are asked to resolve whether demand is

necessary for a conviction of a violation of Article 218
of the Revised Penal Code.
37
Criminal Law II TSN

2nd Exam Coverage
2. That there is public fund or property under

his administration;
3. That such public fund or property has been
appropriated by law or ordinance;
4. That he applies the same to a public use
other than that for which such fund or
property has been appropriated by law or
ordinance.
choice but to see to it that its mandate is

obeyed. There is no room for interpretation,
but only application.
Article 219. Failure of a responsible public officer to
render accounts before leaving the country. - Any
public officer who unlawfully leaves or attempts to
leave the Philippine Islands without securing a
certificate from the Insular Auditor showing that his
accounts have been finally settled, shall be punished
by arresto mayor, or a fine ranging from 200 to
1,000 pesos or both.
From what purpose is the fund being used or spend

for? It is for public use or purpose also but only that
if we do not prohibit this kind of transaction then
there will be a violation of the provision of the
Constitution. Remember here that the offender is
entrusted with such fund or property only to
administer or apply the same to the public purpose
from which it was appropriated by law or ordinance.
Instead of applying it to the public purpose, the
public officer applied it to another public purpose
also.
Take note of the phrase unlawfully leaves or

attempts to leave this suggests that the attempt to
leave or unlawfully left the country is due to the
commission of the crime which has not yet been
discovered.
Since that _ is not an element of the crime of

malversation, technical malversation even though the
application may prove to be more beneficial to public
interest than the original purpose the amount was
appropriated by law, the public officer involved is still
liable for technical malversation.
Article 220. Illegal use of public funds or property. Any public officer who shall apply any public fund or
property under his administration to any public use
other than for which such fund or property were
appropriated by law or ordinance shall suffer the
penalty of prision correccional in its minimum period
or a fine ranging from one-half to the total of the
sum misapplied, if by reason of such misapplication,
any damages or embarrassment shall have resulted
to the public service. In either case, the offender
shall also suffer the penalty of temporary special
disqualification.
If public funds or property appropriated by law or

ordinance and this was applied to a public purpose
by the custodian thereon, then the crime is pure and
simple malversation and not technical malversation.
If the funds are not appropriated for a particular
public purpose and the same is applied to private
purpose, the crime committed is malversation only.
But if the funds or property appropriated by law or
ordinance used for a purpose other than those
provided by law or ordinance then, the crime is
technical malversation.
If no damage or embarrassment to the public service

has resulted, the penalty shall be a fine from 5 to 50
per cent of the sum misapplied.
The other term for art
MALVERSATION.
220
is
TECHNICAL
Remember in technical malversation, the funds are

appropriated by that law or ordinance. What if you
return the funds embezzled? That is not exempting.
It is only mitigating. You can find it in Art 13, RPC
Analogous circumstances. Even the amount
misappropriated
or
restitution
or
property
misappropriated (HA?) does not raise criminal liability
but only civil liability. Demand as well as damage to
the Government is not necessary. Take note that
damage on the part of the Government is not
considered as an essential element. It is not the
Technical malversation is the penal sanction to the

constitutional provision under Art VIII, Sec 18 (hindi
ata tama ang provision na sinabi niya) which states
No one is/shall be paid out of the treasury except of
an appropriation made by law. It is called technical
malversation because the funds are used for a
purpose other than that from such the same is
appropriated.
Elements:
1. That the offender is a public officer;
38
Criminal Law II TSN

2nd Exam Coverage
proprietary rights of the Government over the funds

have been _ through breach of trust.
food intended for the latter to CSAP beneficiaries.

Two. Ysidoro claims that the subject goods already
constituted savings of the SFP and that, therefore,
the same could already be diverted to the CSAP
beneficiaries. He relies on Abdulla v. People12 which
states that funds classified as savings are not
considered appropriated by law or ordinance and can
be used for other public purposes. The Court cannot
accept Ysidoros argument.
Distinction between Art 217 and Art 220

Art 217 Malversation
Art
220
Technical
Malversation
Offenders are accountable public officers.

Personal benefits are
derived from commission
of the crime by the
accused
The offender derives no

personal benefit from the
commission of the crime
because he spend it for
public purpose
The subject goods could not be regarded as savings.

The SFP is a continuing program that ran throughout
the year. Consequently, no one could say in midJune 2001 that SFP had already finished its project,
leaving funds or goods that it no longer needed. The
fact that Polinio had already distributed the food
items needed by the SFP beneficiaries for the second
quarter of 2001 does not mean that the remaining
food items in its storeroom constituted unneeded
savings. Since the requirements of hungry mouths
are hard to predict to the last sack of rice or can of
sardines, the view that the subject goods were no
longer needed for the remainder of the year was
quite premature.
Personal interest of the The object of the crime is

offender
also for public use
Ysidoro v. PP; November 14, 2012
This case is about a municipal mayor charged with

illegal diversion of food intended for those suffering
from
malnutrition
to
the
beneficiaries
of
reconsideration projects affecting the homes of
victims of calamities.
Three. Ysidoro claims that, since the municipal

auditor found nothing irregular in the diversion of the
subject goods, such finding should be respected. The
SB ruled, however, that since Ysidoro failed to
present the municipal auditor at the trial, the
presumption is that his testimony would have been
adverse if produced. Ysidoro argues that this goes
against the rule on the presumption of innocence and
the presumption of regularity in the performance of
official functions.
One. The crime of technical malversation as

penalized under Article 220 of the Revised Penal
Code4 has three elements: a) that the offender is an
accountable public officer; b) that he applies public
funds or property under his administration to some
public use; and c) that the public use for which such
funds or property were applied is different from the
purpose for which they were originally appropriated
by law or ordinance.5 Ysidoro claims that he could
not be held liable for the offense under its third
element because the four sacks of rice and two
boxes of sardines he gave the CSAP beneficiaries
were not appropriated by law or ordinance for a
specific purpose.
Ysidoro may be right in that there is no basis for

assuming that had the municipal auditor testified, his
testimony would have been adverse to the mayor.
The municipal auditors view regarding the
transaction is not conclusive to the case and will not
necessarily negate the mayors liability if it happened
to be favorable to him. The Court will not, therefore,
be drawn into speculations regarding what the
municipal auditor would have said had he appeared
and testified.
Four. Ysidoro insists that he acted in good faith
since, first, the idea of using the SFP goods for the
CSAP beneficiaries came, not from him, but from
Garcia and Polinio; and, second, he consulted the
accounting department if the goods could be
distributed to those beneficiaries. Having no criminal
intent, he argues that he cannot be convicted of the
crime.1wphi1
Ysidoro disregarded the guidelines when he approved

the distribution of the goods to those providing free
labor for the rebuilding of their own homes. This is
technical malversation. If Ysidoro could not legally
distribute the construction materials appropriated for
the CSAP housing beneficiaries to the SFP
malnourished clients neither could he distribute the
But criminal intent is not an element of technical

39
Criminal Law II TSN

2nd Exam Coverage
malversation. The law punishes the act of diverting

public property earmarked by law or ordinance for a
particular public purpose to another public purpose.
The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes
a criminal offense because positive law forbids its
commission based on considerations of public policy,
order, and convenience.13 It is the commission of an
act as defined by the law, and not the character or
effect thereof, that determines whether or not the
provision has been violated. Hence, malice or
criminal intent is completely irrelevant.14
*Judge skipped Art 222.

223. Conniving with or consenting to
evasion. - Any public officer who shall consent to the
escape of a prisoner in his custody or charge, shall
be punished:
Article
1. By prision correccional in its medium and

maximum periods and temporary special
disqualification in its maximum period to
perpetual special disqualification, if the
fugitive shall have been sentenced by final
judgment to any penalty.
Dura lex sed lex. Ysidoros act, no matter how noble

or miniscule the amount diverted, constitutes the
crime of technical malversation. The law and this
Court, however, recognize that his offense is not
grave, warranting a mere fine.
2. By prision correccional in its minimum

period and temporary special disqualification,
in case the fugitive shall not have been finally
convicted but only held as a detention
prisoner for any crime or violation of law or
municipal ordinance.
Article 221. Failure to make delivery of public funds

or property. - Any public officer under obligation to
make payment from Government funds in his
possession, who shall fail to make such payment,
shall be punished byarresto mayor and a fine from 5
to 25 per cent of the sum which he failed to pay.
Elements:
2. That he had in his custody or charge, a
prisoner, either detention prisoner or prisoner
by final judgment;
3. That such prisoner escaped from his custody;
4. That he was in connivance with the prisoner
in the latters escape.
This provision shall apply to any public officer who,

being ordered by competent authority to deliver any
property in his custody or under his administration,
shall refuse to make such delivery.
The fine shall be graduated in such case by the value
of the thing, provided that it shall not less than 50
pesos.
Take note that the public officer here must be in

connivance or he consents with the escape. Without
connivance on the part of the person in charge of the
custody then Art 223 is not violated. Mere laxity in
the performance of ones function in the custody of
these detainees does not necessarily constitute a
violation of Art 223. What kind of laxity is that?
Strong and positive laxity on the part of the offender
that could make you criminally liable under Art 223.
2 acts made punishable under Art 221:

1. By failing to make payment by a public officer
who is under obligation to make such
payment from Government funds in his
possession;
2. By refusing to make delivery by a public
officer who has been ordered by competent
authority to deliver any property in his
custody or under his administration.
Article 224. Evasion through negligence. - If the

evasion of the prisoner shall have taken place
through the negligence of the officer charged with
the conveyance or custody of the escaping prisoner,
said officer shall suffer the penalties of arresto
mayor in its maximum period to prision correccional
in its minimum period and temporary special
disqualification.
Article 222. Officers included in the preceding

provisions. - The provisions of this chapter shall
apply to private individuals who in any capacity
whatever, have charge of any insular, provincial or
municipal funds, revenues, or property and to any
administrator or depository of funds or property
attached, seized or deposited by public authority,
even if such property belongs to a private individual.
40
Criminal Law II TSN

2nd Exam Coverage
Not every error is negligence ha? To be liable

negligence must be notorious and apparent. The
laxity must be definite and must it suggest a
deliberate non-performance of the duty. In other
words, what is required is a positive kind of
negligence.
the custodian, the crime is only delivering prisoners

from jail found under Art 156.
The crime of infidelity in the custody of the prisoner
can be committed only by the custodian of a
prisoner. If the jail guard who allowed the prisoner to
escape is already off-duty at that time he is no longer
the custodian of the prisoner, the crime committed
by him is delivering prisoners from jail. Take note we
do not apply the principle of conspiracy that the act
of one is the act of all the party who is not the
custodian who conspired the custodian in allowing
the prisoner to escape does not commit infidelity in
the custody of the prisoner. He commits the crime of
delivering prisoners from jail.
What is the liability of the prisoner who escaped? We

have to qualify. If the one who escaped is only a
detention prisoner, he commits no crime from
escaping. But if the person detained is a prisoner
serving sentence for a final judgment then, he
commits the crime of evasion of service of sentence
under Art 157. That is the effect.
Article 225. Escape of prisoner under the custody of
a person not a public officer. - Any private person to
whom the conveyance or custody or a prisoner or
person under arrest shall have been confided, who
shall commit any of the offenses mentioned in the
two preceding articles, shall suffer the penalty next
lower in degree than that prescribed for the public
officer.
If a private person approach the custodian of the

prisoner and for a certain consideration told the
custodian to leave the door of the cell unlocked for
the prisoner to escape, what crime had been
committed? It is not infidelity in the custody of
prisoners as far as the private person is concerned.
He is liable of the crime of delivering prisoners from
jail. The infidelity is only committed by the custodian
who is the jail guard.
Elements:
If the crime is delivering of prisoners from jail,

bribery is just a means under Art 156 that would call
for the imposition of heavier penalty but not a
separate charge of bribery. But under Art 225, the
infidelity in the custody of the prisoner what is
basically punished is the breach of trust because the
offender is the custodian. If he violates the trust by
some consideration, bribery is also committed.
1. That the offender is a private person;

2. That the conveyance or custody of a
prisoner or person under arrest is confided
to him;
3. That the prisoner or person under arrest
escapes;
4. That the offender consents to the escape of
the prisoner or person under arrest, or that
the escape takes place through his
negligence.
Note from a recent SC ruling, failure to accompany

lady prisoner in the comfort room is a means of
negligence and therefore the custodian is liable with
infidelity in the custody of the prisoner.
Now this article (remember) will not apply if a private

person made the arrest and he consented to the
escape of the person that he arrested. The situation
for this article contemplates that the person arrested
was entrusted to your custody and you allowed his
escape but if you are a private person is arresting the
prisoner and eventually allowed him to escape then
you are liable of the crime.
Article 226. Removal, concealment or destruction of

documents. - Any public officer who shall remove,
destroy or conceal documents or papers officially
entrusted to him, shall suffer:
1. The penalty of prision mayor and a fine not
exceeding 1,000 pesos, whenever serious
damage shall have been caused thereby to a
third party or to the public interest.
The crime is called infidelity in the custody of

prisoners if the offender involved is the custodian of
the prisoner. If the offender who aided or consented
to the prisoners escaping from confinement whether
the prisoner is a convict or a detention prisoner is not
2. The penalty of prision correccional in its

minimum and medium period and a fine not
exceeding 1,000 pesos, whenever the
damage to a third party or to the public
41
Criminal Law II TSN

2nd Exam Coverage
interest shall not have been serious.
next preceding article who, without proper authority,

shall open or shall permit to be opened any closed
papers, documents or objects entrusted to his
custody, shall suffer the penalties or arresto mayor,
temporary special disqualification and a fine of not
exceeding 2,000 pesos.
In either case, the additional penalty of temporary

special disqualification in its maximum period to
perpetual disqualification shall be imposed.
Elements:
1. That the offender be a public officer;
2. That he abstracts, destroys or conceals
documents or papers;
3. That the said documents or papers should
have been entrusted to such public officer by
reason of his office;
4. That damage, whether serious or not, to a
third party or to the public interest should
have been caused.
Article 229. Revelation of secrets by an officer. Any public officer who shall reveal any secret known
to him by reason of his official capacity, or shall
wrongfully deliver papers or copies of papers of
which he may have charge and which should not be
published, shall suffer the penalties of prision
correccional in its medium and maximum periods,
perpetual special disqualification and a fine not
exceeding 2,000 pesos if the revelation of such
secrets or the delivery of such papers shall have
caused serious damage to the public interest;
otherwise, the penalties of prision correccional in its
minimum period, temporary special disqualification
and a fine not exceeding 50 pesos shall be imposed.
From Reyes
Under this article, not only documents but
also papers may be involved. The word papers
includes checks, promissory notes, and paper money.
Thus, a postmaster to whom a letter
containing paper money was delivered to be
forwarded by registered mail, opened said letter and
abstracted money orders, or the money bills enclosed
therein, was guilty of infidelity in the custody of
papers.
Acts punishable:
1. By revealing any secrets known to the
offending public officer by reason of his
official capacity;
2. By delivering wrongfully papers or copies of
papers of which he may have charge and
which should not be published.
Acts punishable in infidelity in the custody of

documents:
1. By removing; or
2. By destroying; or
3. By concealing, documents or papers officially
entrusted to the offending public officer.
Elements of No. 1:
a. That the offender is a public officer;
b. That he knows of a secret by reason of his
official capacity;
c. That he reveals such secret without authority
or justifiable reasons;
d. That damage, great or small, be caused to
the public interest.
Damage to public interest is necessary however,

material damage is not necessary.
Article 227. Officer breaking seal. - Any public
officer charged with the custody of papers or
property sealed by proper authority, who shall break
the seals or permit them to be broken, shall suffer
the penalties of prision correccional in its minimum
and
medium
periods,
temporary
special
disqualification and a fine not exceeding 2,000 pesos.
Elements of No. 2:
a.
b.
c.
d.
That the offender is a public officer;

That he has charge of papers;
That those papers should not be published;
That he delivers those papers or copies
thereof to a third person;
e. That the delivery is wrongful;
f. That damage be caused to public interest.
Article 228. Opening of closed documents. - Any

public officer not included in the provisions of the
42
Criminal Law II TSN

2nd Exam Coverage
of arresto mayor in its medium period to prision

correccional in its minimum period, perpetual special
disqualification and a fine not exceeding 1,000 pesos,
shall be imposed upon a public officer who, upon
demand from competent authority, shall fail to lend
his cooperation towards the administration of justice
or other public service, if such failure shall result in
serious damage to the public interest, or to a third
party; otherwise, arresto mayor in its medium and
maximum periods and a fine not exceeding 500
pesos shall be imposed.
The secrets here are not secrets of private

individuals. The article punishes minor official
betrayals, infidelities of little consequence, affecting
usually the administration of justice, executive or
official duties, or the general interest of the public
order.
Article 230. Public officer revealing secrets of
private individual. - Any public officer to whom the
secrets of any private individual shall become known
by reason of his office who shall reveal such secrets,
shall suffer the penalties of arresto mayor and a fine
not exceeding 1,000 pesos.
Elements:
Article 231. Open disobedience. - Any judicial or
executive officer who shall openly refuse to execute
the judgment, decision or order of any superior
authority made within the scope of the jurisdiction of
the latter and issued with all the legal formalities,
shall suffer the penalties of arresto mayor in its
medium period to prision correccional in its minimum
period, temporary special disqualification in its
maximum period and a fine not exceeding 1,000
pesos.

2. That a competent authority demands from
the offender that he lend his cooperation
towards the administration of justice or other
public service;
3. That the offender fails to do so maliciously.
Article 234. Refusal to discharge elective office. The penalty of arresto mayor or a fine not exceeding
1,000 pesos, or both, shall be imposed upon any
person who, having been elected by popular election
to a public office, shall refuse without legal motive to
be sworn in or to discharge the duties of said office.
Article 232. Disobedience to order of superior
officers, when said order was suspended by inferior

officer. - Any public officer who, having for any
Elements:
reason suspended the execution of the orders of his

superiors, shall disobey such superiors after the latter
have disapproved the suspension, shall suffer the
penalties of prision correccional in its minimum and
medium
periods
and
perpetual
special
disqualification.
1. That the offender is elected by popular

election to a public office;
2. That he refuses to be sworn in or to
discharge the duties of said office;
3. That there is no legal motive for such refusal
to be sworn in or to discharge the duties of
said office.
Elements:
Article 235. Maltreatment of prisoners. - The

penalty of arresto mayor in its medium period to
prision correccional in its minimum period, in addition
to his liability for the physical injuries or damage
caused, shall be imposed upon any public officer or
employee who shall overdo himself in the correction
or handling of a prisoner or detention prisoner under
his charge, by the imposition of punishment not
authorized by the regulations, or by inflicting such
punishment in a cruel and humiliating manner.

2. That an order is issued by his superior for
execution;
3. That he has for any reason suspended the
execution of such order;
4. That his superior disapproves the suspension
of the execution of the order;
5. That the offender disobeys his superior
despite the disapproval of the suspension.
If the purpose of the maltreatment is to extort a

confession, or to obtain some information from the
Article 233. Refusal of assistance. - The penalties

43
Criminal Law II TSN

2nd Exam Coverage
prisoner, the offender shall be punished by prision

correccional in its minimum period, temporary special
disqualification and a fine not exceeding 500 pesos,
in addition to his liability for the physical injuries or
damage caused.
exceeding 500 pesos.
Article 238. Abandonment of office or position. Any public officer who, before the acceptance of his
resignation, shall abandon his office to the detriment
of the public service shall suffer the penalty
of arresto mayor.
2 kinds of maltreatment:
1. Imposing punished not authorized by
regulations; or
2. Inflicting authorized punishments in a cruel
and humiliating manner on the prisoner under
the charge of the public officer.
If such office shall have been abandoned in order to

evade the discharge of the duties of preventing,
prosecuting or punishing any of the crime falling
within Title One, and Chapter One of Title Three of
Book Two of this Code, the offender shall be
punished by prision correccional in its minimum and
medium periods, and by arresto mayorif the purpose
of such abandonment is to evade the duty of
preventing, prosecuting or punishing any other
crime.
CF. Anti-Torture Law

The prisoner maltreated here must be under the
actual charge of the public officer and not by legal
fiction. The offended party must be a prisoner in the
legal sense. The mere fact that the private citizen
has been apprehended by law officers does not
automatically constitute him a prisoner.
Under Art 238, oral resignation is not allowed. When

you are in government and you want to resign, you
must tender a resignation.
The maltreatment
Elements:
(1) Must relate to the correction or handling of

the prisoner; or
(2) Must be for the purpose of extorting a
confession or of obtaining some information
from the prisoner.

2. That he formally resigns from his position;
3. That his resignation has not yet been
accepted;
4. That he abandons his office to the detriment
of the public service.
Remember that maltreatment of prisoner is

committed when the prisoner is actually confined
either as a convict or a detention prisoner.
Article 239. Usurpation of legislative powers. - The

penalties of prision correccional in its minimum
period, temporary special disqualification and a fine
not exceeding 1,000 pesos, shall be imposed upon
any public officer who shall encroach upon the
powers of the legislative branch of the Government,
either by making general rules or regulations beyond
the scope of his authority, or by attempting to repeal
a law or suspending the execution thereof.
Article 236. Anticipation of duties of a public

office. - Any person who shall assume the
performance of the duties and powers of any public
officer or employment without first being sworn in or
having given the bond required by law, shall be
suspended from such office or employment until he
shall have complied with the respective formalities
and shall be fined from 200 to 500 pesos.
Article 240. Usurpation of executive functions. Any judge who shall assume any power pertaining to
the executive authorities, or shall obstruct the latter
in the lawful exercise of their powers, shall suffer the
penalty ofarresto mayor in its medium period to
prision correccional in its minimum period.
Article 237. Prolonging performance of duties and

powers. - Any public officer shall continue to exercise
the duties and powers of his office, employment or
commission, beyond the period provided by law,
regulation or special provisions applicable to the
case, shall suffer the penalties of prision correccional
in its minimum period, special temporary
disqualification in its minimum period and a fine not
Article 241. Usurpation of judicial functions. - The

penalty of arresto mayor in its medium period to
prision correccional in its minimum period and shall
44
Criminal Law II TSN

2nd Exam Coverage
be imposed upon any officer of the executive branch

of the Government who shall assume judicial powers
or shall obstruct the execution of any order or
decision rendered by any judge within its jurisdiction.
PP v VILLAPANDO; July 20, 2008 (Judge A stressed

to read the entire case )
242. Disobeying
request
for
disqualification. - Any public officer who, before the
question of jurisdiction is decided, shall continue any
proceeding after having been lawfully required to
refrain from so doing, shall be punished by arresto
mayor and a fine not exceeding 500 pesos.
SC ruled in favor of the Respondent. It bears

stressing that temporary prohibition is not
synonymous with absence or lack of legal
qualification. A person who possessed the required
legal qualifications for a position may be temporarily
disqualified for appointment to a public position by
reason of the one year prohibition imposed on losing
candidates. Upon the other hand, one may not be
temporarily disqualified for appointment, but could
not be appointed as he lacked any or all of the
required legal qualifications imposed by law.
Article
Elements for Art 242:

2. That a proceeding is pending before such
public officer;
3. That there is a question brought before the
proper authority regarding his jurisdiction,
which is not yet decided;
4. That he has been lawfully required to refrain
from continuing the proceeding;
5. That he continues the proceeding.
Article 245. Abuses against chastity; Penalties. The penalties of prision correccional in its medium
and maximum periods and temporary special
disqualification shall be imposed:
1. Upon any public officer who shall solicit or
make immoral or indecent advances to a
woman interested in matters pending before
such officer for decision, or with respect to
which he is required to submit a report to or
consult with a superior officer;
Article 243. Orders or requests by executive officers

to any judicial authority. - Any executive officer who
shall address any order or suggestion to any judicial
authority with respect to any case or business
coming within the exclusive jurisdiction of the courts
of justice shall suffer the penalty of arresto
mayor and a fine not exceeding 500 pesos.
2. Any warden or other public officer directly

charged with the care and custody of
prisoners or persons under arrest who shall
solicit or make immoral or indecent advances
to a woman under his custody.
Article 244. Unlawful appointments. - Any public

officer who shall knowingly nominate or appoint to
any public office any person lacking the legal
qualifications therefor, shall suffer the penalty
of arresto mayor and a fine not exceeding 1,000
pesos.
If the person solicited be the wife, daughter, sister of

relative within the same degree by affinity of any
person in the custody of such warden or officer, the
penalties shall be prision correccional in its minimum
and medium periods and temporary special
disqualification.
Elements for Art 244:

2. That he nominates or appoints a person to a
public office;
3. That such person lacks the legal qualifications
therefor;
4. That the offender knows that his nominee or
appointee lacks the qualifications at the time
he made the nomination or appointment.
Ways of committing abuses against chastity:

1. By soliciting or making immoral or indecent
advances to a woman interested in matters
pending before the offending officer for a
decision, or with respect to which he is
required to submit a report to or consult with
a superior officer;
advances to a woman under the offenders
custody;
The word nominate is different from recommend.

RULE Recommending, knowing that the
recommendee has no qualification, is not a crime.
45
Criminal Law II TSN

2nd Exam Coverage

advances to the wife, daughter, sister or
relative within the same degree by affinity of
any person in the custody of the offending
warden or officer.
NB: - What if legally adopted child killed by his own

adopter? NO parricide. Not committed even if
adoption vests in him all the rights and privileges of a
legit child. (So pwede diay patyon no? Haha) But is it
by legal fiction of law you are legitimate? Yes, but
blood relation is NOT established
Mere proposal is sufficient to consummate the crime.

Chastity is only for women thus, the article would not
apply to men.
- Offender must be related to the offended party by

BLOOD except in the husband-wife relationship (no
blood relationship because that would not be a valid
marriage, incestuous)
The lesbian warden may be liable for abuse against

chastity because the law does not provide that the
custodian of the prisoner be a man. It only requires
that the offended party must be a woman.
- Such relationship must be in DIRECT LINE and not

a collateral line
- Between parent and child, relationship MAY be legit
or illegitimate; BUT all others, relationship MUST be
LEGITIMATE
October 01, 2016
Q: Andy married Ms. Corpuz but Andy already had a

child with someone else. This child hates Andy
because he married another and not his mother.
That child is the son of Andy but what relationship is
that?
CRIMES AGAINST PERSONS

Art. 246. Parricide. Any person who shall kill
his father, mother, or child, whether legitimate
or illegitimate, or any of his ascendants, or
descendants, or his spouse, shall be guilty of
parricide and shall be punished by the penalty
of reclusion perpetua to death.
A: Illegitimate. So if he kills Andy, that is parricide.

4.
Elements:
Knowledge of relationship is not necessary nor

required as an indispensable element of the
crime;
Q: What if that child did not know Andy was his

father. The son and Andy courted the same girl and
because of jealousy he killed Andy not knowing he is
his father. So is there parricide?
1. Victim is killed
2. The deceased is killed by the accused;
3. Victim is the father, mother or child, whether
legitimate or illegitimate; or legitimate
ascendant or descendant; or legal spouse of
the accused
A: YES. Knowledge of relationship is NOT necessary

because the law does not require such as an
indispensable element of the crime of parricide. Even
if that son does not know that the one whom he
killed turned out to be his father, IT DOES NOT
MATTER at all
- NOTE: THIS CRIME IS REGARDED AS THE

HIGHEST FORM OF DESTRUCTION OF LIFE.
The relationship of the offender with the victim is the
essential element of the felony
5.
- It is a crime of relationship. Relationship of the

victim to the offender is the essential element
- the father, mother or children may be legitimate or
illegitimate. Only relatives by blood in direct line,
except spouse, are considered in parricide.
NB: Law mentions ascendants and descendants it

does not include parents and child because with
parent and child, it may be legit or illegit but in
ASCENDANTS or DESCENDANTS the requirement is
relationship must be that of LEGITIMATE
- the spouse must be legitimate.
6.
Parents and children are not included in the

term ascendants or descendants
The relationship between ascendants

descendants must be legitimate.
and
Q: A is the parent of B, an illegitimate daughter. B

married C and they got a child D. If D, daughter of B
and C killed A, granddaughter of A, is D liable for
parricide?
POINTS TO REMEMBER:
1. EXCEPT husband and wife, the offender must be
related to the offended party by blood.
2. The blood relationship must be in the direct line
and not in a collateral line
3.
Between the parent and the child, the
relationship may be legitimate or illegitimate. But
all other relationships must be legitimate.
A: NO because of the intervening illegitimacy. The

relationship between A and D is no longer legit hence
the crime may be homicide or murder.
46
Criminal Law II TSN

2nd Exam Coverage
7.
The child mentioned in the law must not be less

than three days old otherwise the crime is
infanticide.
Then he went out of prison, is he still guilty of

parricide? What if he killed all these 4 wives?
A: (obiter dictum of SC) Muslim husbands with
several wives can be convicted of parricide only
in case 1st wife is killed. No parricide if the other
ones are killed even though such marriages are
recognized as valid. Reason: because Catholic
men can only commit this crime only once. If the
Muslim husband can commit this more than once,
in effect he is being punished for the leverage
which the law itself authorizes to contract
NB: The mother killed her child to conceal the

dishonor is not to be considered as mitigating in the
crime of parricide. It is immaterial to the crime of
parricide unlike in the case of infanticide. If the child
is less than 3 days old and killed it is infanticide and
the intent to conceal dishonor is to considered as
mitigating circumstance.
>>>>That the mother killed her child in order to

conceal her dishonor is not mitigating. This is
- so if the muslim husband kills the 2nd or 3rd

wife, it is now homicide or murder.
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.
9. Relationship must be alleged in the information.

- 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,
- When we say person or child under this article, it

must not be less than 3 days old otherwise the crime
will be infanticide
relationship shall be appreciated

aggravating circumstance
Q: Remember mitigating circumstances in Crim 1.

What if I killed my own 5-day old child to conceal
dishonour is that mitigating?
as
generic
- If the information did not allege that accused is

legally married to the victim, he cant be convicted of
parricide even if marriage was established during
trial; In such case, the relationship shall be
appreciated only as GENERIC AGGRAVATING
circumstance
A: NO. It is immaterial in the crime of parricide unlike

in the case of infanticide which considers such as
mitigating.
8. the spouse killed must be legitimate
NB: Pp v Ignacio, 270 SCRA 445
* 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.
- The 2000 Revised Rules of Criminal Procedure, it

requires that it must be alleged in the information for
it to be appreciated in the imposition of penalty.
However in 2013, the SC held that the court can use
the
aggravating
or
generic
aggravating
circumstances that were proven in the trial but not
alleged in the information in the imposition of
damages against the accused.
Read PP v. Javier: Answers the Q of what is the

best proof of the marital relationship of the accused
and the deceased? Answer is marriage certificate.
There must be a valid subsisting marriage.
10. A stranger who cooperates in the commission of

parricide is not guilty of parricide but only of
homicide or murder, as the case may be (People vs.
- Muslim guys can marry 4 times so long as

husband can provide material aspects of these 4
wives (but what about the women??)
Patricio, 46 Phil. 875).
* Since parricide is a crime of relationship, if a
(Anecdote of his bother in law who converted in
stranger conspired in the commission of the crime,

he cannot be held liable for parricide.
His
order that 2nd marriage be contracted, ewan not

connected)
participation would make him liable for murder or for

homicide, as the case may be.
The rule of
st
Q: If the muslim husband killed his 1 wife, will

he be guilty of parricide?
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.
A: Yes.
Q: Ok now assuming he survived and went out of
prison and he contracted 2nd marriage. Or he
already has 4 wives before he killed his 1st wife.
What if during the subsistence of the 4
marriages, he killed 1st, OK GUILTY of parricide.
Q: how about a stranger? What if a stranger helps in

the commission of parricide? Is he charged with
parricide?
A: No. the stranger is liable for homicide and murder
as the case maybe, because parricide is a crime of
47
Criminal Law II TSN

2nd Exam Coverage
relationship. Meaning, if the husband kills his wife

with the aid of another person, the husband is liable
for parricide but the stranger is liable not for
parricide but for homicide or murder.
is parricide but the actual crime committed is

homicide, it becomes not beneficial to the accused.
So we do not apply Art. 49. We only apply art. 49
when the crime intended which is homicide but the
crime actually committed is parricide, you will be
charged based on the crime intended. The reason is
it is more beneficial to the accused.
Q: If I killed my own father and I was being helped

by Andy in committing it. What is the liability of me
and the friend? Is it not that in conspiracy the crime
of one is the crime of all?
Take note ha. Article 365 provides that parricide can
be committed can be committed thru reckless

imprudence but penalty is not 246 but under 365!
A: I am guilty of parricide but as to Andy, NO. He will

be guilty only of either murder or homicide as the
case may be. Take note, a stranger who cooperates
is not guilty of parricide because it is a crime of
relationship! His participation in conspiring will make
him liable of either murder of homicide as the case
may be. The rule on conspiracy does not apply here
because of the personal relationship to the offender
of the offended party. This is cited in your books, PP
Kindly read: PP v. Callago, Aug 18, 1999.

Q: what if the marriage is void initio?
Problem: X and Y are first cousins but despite the
objection of their parents they got married. Their
marriage is agaist the law, public morals and public
policy. Thus, the marriage is void ab initio. X killed Y.
Notwithstanding the provision of the law that
parricide is committee by means of dolo or with
intention and is punishble with reclusion perpetua to
death, remember that Art. 365 also provides that
parricide can be committed thru reckless imprudence.
So parricide is not limited to intentional felony. It can
also be committed through reckless imprudence.
Meaning culpable felony.
v. Patricio
Q: Spouse A (wife) conspired with B (stranger) to kill

C (husband). B did it for a price or consideration. It is
actually B only who killed C. In the killing, he uses
treachery. The manner was made known to A
beforehand. What if B used poison to kill C, and A
knew this. Is that aggravating circumstance of use of
poison, to whom would it affect?
- killing of a brother is not parricide.

Ex: Joel and Roger
are brothers they
quarelled and Joel killed Roger. Joel is not
liable for parricide because even if they are
related by blood, they are not related by
direct line but in collateral line.
A: As far as A is concerned, based on the relationship

it is parricide. The use of poison is treated only as a
generic aggravating in the crime of parricide because
this is not one crime which requires qualifying
circumstance. But what about B? If he employed
treachery by using poison, he committed murder and
treachery would be the qualifying intervening
circumstance.
Pp v Tibon, June 29, 2010

this involves parricide because he killed his
own children. During trial he presented the
defense of insanity. He presented proofs of
insanity. The SC held the conviction of
parricide.
Another Q: Can parricide be committed by means of

CULPA?
A: Yes parricide can be committed by mistake. As I
said earlier, this is demonstrated in the situation
where a person wanting to kill a stranger kills his
own father instead. Although the crime committed is
parricide, he will not be punished under 246 but
under 249 with a lower penalty. In relation to article
49 the crime intended is different from that actually
committed, remember? Basis of the penalty is the
one intended.
Pp v Roy San Gaspar, GR # 180496, April 02, 2014

- the defense of the appellant here is that he shot his
wife with a shot gun by accident. SC held parricide
since the shot gun will not go off without it being
loaded, thus it is impossible for the shot gun to fire
on its on. It needs the trigger to be switched.
Article 247.Death or physical injuries inflicted under
exceptional circumstances. Any legally married
person who having surprised his spouse in the
act of committing sexual intercourse with
another person, shall kill any of them or both
of them in the act or immediately thereafter,
or shall inflict upon them any serious physical
injury, shall suffer the penalty of destierro.
So the crime intended is homicide but the actual

crime committed is parricide. While he will be
charged of parricide, the penalty that shall be
imposed is not for parricide because under Art. 49,
the penalty to be imposed is based on the crime he
intended.
What if the person intended parricide but actually
committed homicide, what is the penalty to be
imposed?
If he shall inflict upon them physical injuries of

any other kind, he shall be exempt from
punishment.
If you based it on Art. 49, crime actually intended

from that actually committed, which is the intended
48
Criminal Law II TSN

2nd Exam Coverage
Killing should be actually motivated by the same

(blind?) choice?
These rules shall be applicable, under the

same circumstances, to parents with respect
to their daughters under eighteen years of
age, and their seducer, while the daughters
are living with their parents.
- PP v. Abarca, 1987: Abarca is a barrister. Wife

had illicit relationship which apparently started way
back 1983 while he was reviewing for bar. 1984 the
husband left to fetch his daughter somewhere in
eastern Samar. However he was not able to take the
trip because naguba ang bus so nibalik sya. He went
to his fathers house. Then after he returned to his
home and he saw wife and paramour having sexual
intercourse. Wife noticed accused, she pushed
paramour to get his revolver prompting the accused
to run away. Paramour ang nay dala nga baril.
Accused went to Tacloban and got an m16 belonging
to a soldier. He returned to his house but no one was
there. He proceeded to the hang out of the
paramour, paramour was playing mah-jong. He fired
to the paramour who died instantaneously. Sps.
Amparado who were there were hit too because of
the firing of the accused. So Abarca was prosecuted
for the death of the paramour, and for the injuries
inflicted to the Sps. Amparados.
Any person who shall promote or facilitate the

prostitution of his wife or daughter, or shall
otherwise have consented to the infidelity of
the other spouse shall not be entitled to the
benefits of this article.
Elements:
1. Offender is a legally married person
2. Surprised his spouse in the act of committing
sexual intercourse with another person
3. Inflicts serious physical injury or he kills any of
them or both of them
4. Does so during the act of sexual intercourse or
immediately thereafter
-
T
ake note, this article does not define a felony.
It merely grants a privilege or benefit to an
offender who inflicts injury to another
because of marital infidelity.
T
here is no crime as to death or physical
injuries
committed
under
exceptional
circumstance. The spouse who kills the other
for infidelity and is charged for homicide or
murder. So pwede ma-charge ug homicide or
murder but not under art.247. The
circumstances under art. 247 need not be
stated in the information since they are not
elements of a crime.
Ruling: 247 applies in the instant case. 1st, victim was

in the act of illicit copulation with his wife. As a result
of which he went out to kill the deceased in the fit of
passionate outburst. All elements are present in this
case.
RTC in convicting him of murder therefore erred.
Time passed between the time accused discovered
his wife having sex with victim and the time the latter
was shot must be understood to be the continuation
of the pursuit of the victim by the accused-appellant.
RPC does not say instantly but use the phrase
immediately thereafter. It only requires that the
death is the proximate result of the outrage
overwhelming the accused after chancing upon his
spouse in the act of infidelity. It must have been
actually motivated by the same blind impulse and
must not be influenced by external factors. Killing
must be the direct byproduct of the accused rage.
2 stages before Art. 247 applies:

1.
R
ULE: you do the killing or serious injuries during
the act of sexual intercourse or immediately
thereafter.
- When the offender spouse surprises the other
with the paramour or mistress, the attack must
take place when the the sexual intercourse is
going on. If the surprise is before or after the
intercourse or one immediately thereafter be, Art.
247 shall not apply. The offender only gets the
benefit of mitigating circumstance which is
sufficient provocation to proceed with the act.
This stage is very strict but there is a stray case
based on the case of Pp v Abarca.
So 247 with the paramour. How about the injuries

sustained by Amaparados? Neither is he liable for
frustrated murder filed by the Amparados. He did not
have the intent to kill them. Although as a rule one
committing an offense is liable for all the
consequences of his act, that rule presupposes that
the act done amounts to a felony which is NOT so in
this case. This does not mean however that accused
is totally free from any responsibility, granting that
he was not performing illegal acts when he fired
those shots he cannot be said to be entirely without
fault. The warning words he uttered before firing at
the victim is not enough a precaution to absolve him
for the injuries sustained by the Amparados hence,
he is liable under 1st paragraph of article 365 that is
less serious PI through simple imprudence or
negligence.
- 247 does not provide that the victim to be killed

instantly by the accused after surprising in the act of
intercourse. What is required is that the killing is the
PROXIMATE RESULT of the OUTRAGE overwhelming
the accused upon discovery of spouses infidelity.
49
Criminal Law II TSN

2nd Exam Coverage
Ruling is actually dangerous. Remember there was

time gap? He afforded to go to Tacloban to get a
gun. I will not rely on this ruling. Admittedly there is
no hard and fast rule on the concrete definition of
immediately thereafter should be, but if I were you
if you are asked in the bar, be contended with the
idea that immediately thereafter does not mean in
the act probably a continuation or a hot pursuit, but
not that of so many hours.
2nd Stage: when the offender kills or inflicts serious

physical injuries upon the spouse or paramor while in
the act of sexual intercourse or
immediately
thereafter, that is after surprising. Therefore the
issue is: W/N the spouse surprising the other spouse
while the intercourse is taking place and W/N the
killing or inflicting of serious PI was during the time
or immediately thereafter.
s
urprise must be at the moment of sexual
congress. If it is just about to take place or
have just occurred, art. 247 cannot be
invoked.
It
must be innocent spouse that must be
surprised not the other way around. It should
also be the innocent spouse who inflicted
injury out of his/ her reaction that the sexual
intercourse is taking place and caught them in
the act.
If
the surprise occurred after the sexual
intercourse has finished and that there is no
other conclusion but that a sexual intercourse
was had, the article does not apply.
2nd stage becomes immaterial when the surprise

took place when the sexual intercourse was going
on. It is the killing or inflicting serious physical
injuries while the sexual act, no problem. But if it
was done after the sexual intercourse, questions.
1) were they surprised during the actual sexual
intercourse? 2) were they killed immediately
thereafter?
Q: What do you mean by immediately thereafter?

JRAA: For me, the phrase immediately thereafter
means that the discovery, escape and pursuit and
the killing must form part of one continuous act. In
several ruling of the SC of Art. 247 the phrase
immediately thereafter has been interpreted to
mean that between the surprising and the killing or
the inflicting of the physical injuries there should be
no break of time if we go by the very strict
interpretation of the law. In other words, it must be a
CONTINUOUS PROCESS. If there is already a break
of time between the sexual act and killing or inflicting
of the injury, the law presupposes that the offender
has already regained his reason and thus the article
does not apply if there is a break of time.
Example. When the offender finds his spouse in

actual sexual intercourse with another. The latter
escapes with the offended spouse in hot pursuit. The
offender inflicts SPI or kills the other party without
interruption or interval of time.
Andy found his wife inside their bedroom having
sexual intercourse with another man. Unya nangita
pa man syag sanggot because of the paramour was
alerted and he went out and ran. Andy pursued the
paramour and in pursuing he killed the paramour, is
he liable? YES. Andy is liable. Do not think that you
are not criminally liable. You are, but the law gives
you a reprieve or a privilege but it cannot be
considered an absolutory cause. Do not say walay
problema na kay dli ko ma-liable wrong! You are
liable in fact you are convicted and you will suffer
destierro and destierro is a penalty ina crim offense.
What would constitute break of time?

JRAA: based on Pp v Abarca and the definition given,
a break of time would constitute a day after or there
is a lull of time where the offender has control of his
reason.
NOTE: for Art. 247 to apply, the presumption is that
the offender is surprised by his wife or her husband
in the actual sexual intercourse and that he/she was
overcome by passion and obfuscation. The law
affords protection to the spouse who is considered to
have acted out of justified outburst or passion or in
the state of mental disequilibrium that the spouse
has no time to to regain his self- control.
- In one case the husband saw his wife responding

blissfully to the embrace and kisses showered to her
by an amorous lover. The husband waited patiently
for them to have carnal knowledge before attacking
them with deadly weapon and inflicted upon them
SPI. SC granted the husband the privilege of article
247. So meaning maam hulaton jud nako? Yes!
Hulata! Para in the act!
Difference of the 2 stages:

1st stage- does not admit of any situation less than
sexual intercourse. So if acted before he saw the
actual intercourse, he cannot invoke Art. 247.
- This is not limited to husbands. It also applies to

wives. If we find you with the katabang, article 247.
Example, if pag- uli nimu karon makita nimu imung

asawa kakissing imung bestfriend, hulata sa naay
mangyari bago patya.
- This is to be interpreted strictly against the accused

because as I said, this is a privilege. Now in the case
of PP v. Gonzales, SC denied the accused of this
privilege under 247 on the rationale that such is
(story about her family friend in Toril)

50
Criminal Law II TSN

2nd Exam Coverage
granted is conditioned on the requirement that the

spouse surprised the husband or wife in the act of
committing sexual intercourse with another person.
Accused here in this case saw his wife not in the very
act but AFTER the act, if any such there was.
Because the fact that she was rising up and the man
was buttoning his drawers does not automatically
follow that the man and woman had committed
carnal act. (SOBRA NAPUD! So nag-unsa diay to
sila?) Justice Laurel made a dissenting opinion: To
require performance of carnal act before offended
spouse could raise this is to require the impossible in
the majority of cases. Accordingly the words in the
act should not be invariably given a literal (or
liberal?) interpretation but must be subjected to the
rigid judicial scrutiny to prevent abuse but not to
constrain the legislative rationale. I agree with this
dissent.
the sexual act to the killing. But remember in

Abarca? Dangerous. There was a break of time.
Maybe the decision of the SC was more of
compassion and mercy to a fellow would-be lawyer
who suffered infidelity on betrayal of his wife. As Ive
said we cannot rely on this so much, because in
many instances the SC assumed that immediately
thereafter must be interpreted that between the
surprising in sexual act and the killing/PI there
should be NO break of time. If there was already a
break of time, the law presupposes that the offender
already regains his reason therefore this article will
not apply. The Abarca ruling will be considered a
stray decision.
- If you caught your love one in an extraordinary
circumstance with a man not you, happy diay ka? Of
course you will be mad. Similar in article 13,
mitigating, passion or obfuscation.
- Take note: 247 is applicable, for me ha, even if

when the accused did not see the spouse in sexual
intercourse with another. It is enough that the
circumstances reasonably show that the carnal act
has been committed. For example: Both are naked.
Ah dli walay 247 kay dli man in the act!
- A person who is under 247 is not committing a

crime although a penalty is committed. Ortega and
Reyes (books) would say that it actually is more for
the benefit of the accused. He is sent out, removed
or not to enter a particular distance in order to
protect him from the rage of the relatives of the
victim
- PP v. Cabalhin (?) March 28, 2004. Take note: If

you are the accused, see to it na klaro ang facts ba.
He surprised them in the house of the paramour, my
wifes back was lying, paramour was on top of her,
her legs were spread out, and he was making push
and pull. But court did not believe in this story. Court
noted that wife was still all dressed up. Man was
naked on top but was with pants. So that would defy
his explanation. How can he push and pull na
nakapantalon pa sya?
- However, the accused must first be charged with

either parricide if spouse is killed, murder or
homicide depending how the paramour or mistress is
killed or PI through reckless imprudence if 3rd party is
injured
- If death results or PI are serious, there is criminal
liability although penalty is only destierro. And
banishment is intended more for the protection of
the offender rather than penalty. Now if crime
committed is less serious or slight PI there is no
criminal liability. The problem with some women who
have caught their husbands in the act of infidelity
- It is enough that husband or wife surprised them

under such circumstances that no other reasonable
conclusion can be incurred but that a carnal act was
performed or has been committed
ang buhaton sa mga gunggung nga mga asawa ang

kabit ray maoy ialng awayon dli hilabtan ang mga
bana. Thats why I tell my staff, wa juy medisina sa
tanga mayo pa ang buang
Q: What about Andy saw Ms. Corpuz his wife having

some preparatory act, smooching, foreplay, with
Robin Padilla. Out of that, because of rage he killed
them instantly. Can he invoke 247?
Article 248.Murder. - Any person who, not

falling within the provisions of Article 246 shall
kill another, shall be guilty of murder and shall
be punished by reclusion temporal in its
maximum period to death, if committed with
any of the following attendant circumstances:
A: No because there was no sexual intercourse yet.
Padulong pa man. Huwata! Habang nagintercourse

or pagkahuman intercourse pede pud immediately
therafter if you have the guts to wait. Or pede ka
muingon nga pede mujoin? hahaha. Meaning
imong bantayan ug nag-coitus na? Aw ayaw pud. So
humana na sila after 5 minutes, o pede na kay
1. With treachery, taking advantage of

superior strength, with the aid of armed men,
or employing means to weaken the defense or
of means or persons to insure or afford
impunity.
immediately thereafter.
Parties are on their preliminaries. You cannot invoke

this article.
Immediately thereafter: Act of discovery, escape,
pursuit and the killing/inflicting of injury must form 1
continuous act. This phrase has been interpreted
to mean that there should be NO break of time from
2. In consideration of a price, reward, or

promise.
51
Criminal Law II TSN

2nd Exam Coverage
- the essence of treachery is the sudden and

unexpected attack by a non- aggressor or
unsuspecting victim without any chance of defending
himself. It lies on the outcome which comes without
warning and is swift, unexpected, deliberate and
affords no time for the unsuspecting victim to resist
or exist. For treachery to exist, the conditions must
be found that
3. By means of inundation, fire, poison,

explosion, shipwreck, stranding of a vessel,
derailment or assault upon a street car or
locomotive, fall of an airship, by means of
motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any of the calamities
enumerated in the preceding paragraph, or of
an earthquake, eruption of a volcano,
destructive cyclone, epidemic or other public
calamity.
1. at the time of the attack the victim was not in the

position to defend himself
2. the offender consciously adopted a particular
means, methods or forms to ensure the result.
5. With evident premeditation.
The two must concur for treachery to exist.
6. With cruelty, by deliberately and

inhumanly augmenting the suffering of the
victim, or outraging or scoffing at his person or
corpse.
- Except outraging or scoffing at his person/corpse,

all are found in article 14 which defines aggravating
in general. Not all 21 circumstances in article 14 will
not qualify for murder. So if what is alleged in the
information to qualify killing to murder is night time,
then the offender cannot be convicted for murder for
the simple reason that night time is not one of those
enumerated in 248. The court should appreciate
night time as generic aggravating circumstance
One of the qualifying circumstance for one to be

called as murder is the presence of treachery.There
is so many qualifying aggravating circumstance
under art. 248.
There is treachery when the offender commits any of
the crimes against the person employing the means,
methods or forms in the execution thereof that
ensure the execution without risk to themselves.
- Remember the distinctions between ordinary

aggravating and qualifying aggravating. That was
taken care of in Crim 1; In the crime of murder, you
have to associate knowledge of the true meaning of
generic,
inherent,
specific
and
qualifying
circumstance. You have taken that up
The essence of treachery is that the offended party

must be denied of the chance to defend himself
because of the means, methods or forms in the
execution of the crime deliberately adopted by the
offender. It is a matter W/N the offended party wa
denied of the chance to defend himself.
- More often the information charging someone of

murder alleges several qualifying circumstances to
qualify it to murder. Kasagaran mubutang ang
prosecutor with treachery, grave abuse of superior
strength, but actually 1 circumstance is enough to
qualify it. Pero to be sure, daghanon kay basi
Ex. X attacked Y from behind. He stabbed Y for 3

times. Y died. The liability here is murder since he
was attacked from behind thus Y was not in the
position to defend himself.
What if Y suffered from a less serious injury, then the
liability will only be for attempted murder but if X
inflicted a mortal wound and but does not produce
the death of the victim for causes independent of the
will of the perpetrator then it is frustrated murder.
mahulog ang isa. Para ug mahulog naa pay isa pa
(Dean Inigo: Reach for the stars because if you fall

you end in the tree tops. If you reach for the tree
top, you would fall in the ground. I followed it by
heart. Mao mag 3 readings jud ko)
X and Y were having casual conversation but

suddenly X swiftly stabbed Y which immediately killed
him. It is murder since even if Y was in the position
to defend himself the attack was so sudden and swift
that he was not able to defend himself and that X
employed it by means to execute it to ensure that he
kills Y without the risk to himself.
Q: As Ive said when all are established in trial 1 is

enough to qualify killing to murder. In the meantime,
what happens to the other qualifying circumstances
found to be present in the commission of the crime?
A: They lose their nature as qualifying, and will
reacquire their original nature as generic aggravating
circumstance only. This transformation is not
meaningless. Legal significance is apparent. They can
now be off-set with any ordinary mitigating
circumstances
When must treachery be present?

when the aggression is continuous, treachery
must be present from the beginning of the
assault. (pp v manatad, aug 14, 2002)
- We cannot talk of murder when nobody dies
- treachery as a qualifying aggravating circumstance

is only applicable to crimes against persons.
Police: Frustrated murder maam. Judge: Asa ang

biktima? Police: Patay na. Pusang-iring!
52
Criminal Law II TSN

2nd Exam Coverage
Victim must be killed in order that murder be

consummated. Otherwise, it is either frustrated or
attempted in accordance with article 6
offender arising from the defense which the party

attacked may make.
(2) But there is treachery when the attack although
frontal is sudden and unexpected is perpetrated in
such a way to especially insure its execution without
risk to the offender.
- Lets take the 1st qualifying circumstance:

- There is treachery when offender commits any of
the crimes against the persons employing means,
methods or forms in the execution thereof to ensure
his execution without risk from himself arising from
the defense which the offended party might make.
(3) Even a frontal attack could be treacherous when

unexpected and on an unarmed victim who would be
in no position to repel the attack or avoid it. (People
v. Alfon, 399 SCRA 64)
This circumstance involves means, methods and

forms which may actually be an aggravating
circumstance also in which case, treachery absorbs
the same.
People vs Mario Oandasan, Jr.

194605, June 14, 2016(en banc)
G.R. No.
Facts:Oandasan was charged for two counts of the

crime of Murder and one count for Frustrated
Murder. During the trial, it was proven that he was
the lone assailant of the killing. The RTC and CA said
that the killing of the first victim is murder, the killing
of the second victim is homicide and the wounding of
the third victim is frustrated homicie. This is because
no witness was able to see the killing of the second
victim.
The essence of treachery is a deliberate and sudden

attack according the helpless and unsuspecting
victim no chance to resist or to escape. Attacks from
behind are generally treacherous. Dli man kabantay.
But there are instances when the attack is from
behind but there is no treachery. There are also
frontal attacks which are treacherous, if it is sudden
and unexpected giving no opportunity to repel it or
offer any defense to the victim. Treachery may be
appreciated even if the victim is forewarned of the
danger to his person. What is decisive is that the
execution of the attack made it impossible for the
victim to defend himself or to retaliate. This is the
ruling under PP v. Pidoy, 2003 and PP v. De
Guzman, 2003.
The evidence in this case shows that the attack was

unexpected and swift. Montegrico and his friends
were just drinking outside the bunkhouse when the
appellant suddenly appeared from the back of a
dump truck, walked towards their table and, without
any warning, fired at Montegrico. This shot was
followed by more shots directed at Montegrico's
friends, Tamanu and Paleg. Indisputably, Montegrico
was caught off guard by the sudden and deliberate
attack coming from the appellant, leaving him with
no opportunity to raise any defense against the
attack. Also, appellant deliberately and consciously
adopted his mode of attack by using a gun and made
sure that Montegrico, who was unarmed, would have
no chance to defend himself.
What if the person killed is a minor child and there is

no showing that it was attended with treachery?
A: Pp v Alovera 415 SCRA 457, the killing of minor
children by reason of his tender years could not be
expected to put up a defense and thus considered to
be attended by treachery even if the manner of
attack was shown. Treacher must be appreciated in
favor of the child even if the manner of attack was
not shown that the adult who causes it intended it
with treachery.
SC: xxxx we are perplexed why both lower courts

only characterized the killing of Tamanu and the
near-killing of Paleg as homicide and frustrated
homicide while characterizing the killing of
Montegrico as murder because of the attendance of
treachery. The distinctions were unwarranted. The
fact that the shooting of the three victims had
occurred in quick succession fully called for a finding
of the attendance of treachery in the attacks against
all the victims. Montegrico, Tamanu and Paleg were
drinking together outside their bunkhouse prior to
the shooting when the accused suddenly appeared
from the rear of the dump truck, walked towards
their table and shot Montegrico without any warning.
That first shot was quickly followed by more shots.
As a matter of rule, treachery must be proven by the

prosecution. It cannot be presumed. Thus, if the
prosecution filed for murder qualified by treachery
but wasnt able to prove treachery, then it can be
that the conviction will only be for the simple crime
of homicide.
If the killing is proceeded with a quarrel between the
victim and the accused, it cannot be said that there is
treachery because each of the protagonist is part of
an impending attack.
Treachery can exist even if the attack is frontal if it is
sudden, swift, deliberate and unexpected giving no
opportunity for the victim to defend himself.
SC: In that situation, none of the three victims was

aware of the imminent deadly assault by the
accused, for they were just enjoying their drinks
outside their bunkhouse. They were unarmed, and
RULES WHEN THE ATTACK IS FRONTAL:

(1) If the attack is frontal, there is no treachery as
the mode of attack does not exclude any risk to the
53
Criminal Law II TSN

2nd Exam Coverage
treacherous and since the victim died as a

consequence the crime is murder. When the victim is
already dead, intent to kill becomes irrelevant. It is
important only if the victim did not die to determine
if the felony is PI or attempted murder/homicide or
frustrated murder/homicide.
did not expect to be shot, when the accused came

and shot them.
- there is no treachery if the mode of attack does not
exclude risk to the offender arising from the defense
which the party attacked has been made there is
treachery even frontal if the attack is sudden, swift
and unexpected and perpetrated to ensure the due
execution without risk to the offender
Alevosia considered even if:

(1) The victim was not predetermined but there was
a generic intent to treacherously kill any first two
persons belonging to a class. (The same rule obtains
for evident premeditation.)
- A person who is determined to kill did it on night

time in darkness to ensure killing. Nocturnity
becomes a means that constitutes treachery so that
the killing becomes not homicide but murder. But if
nocturnity is considered by itself, it is not 1 of those
which qualifies homicide to murder. So one might
think that such killing homicide unless nocturnity is
considered as constituting treachery. To reiterate:
Essence of treachery is that offended party is denied
the chance to defend himself, then there is treachery
and killing is qualified as murder.
If despite
offended
offender
available.
present.
(2) There was aberratio ictus and the bullet hit a

person different from the intended. (The rule is
different in evident premeditation.)
(3) There was error in personae, hence the victim
was not the one intended by the accused. (A
different rule is applied in evident premeditation.)
Now, what is alleviosa or evident premeditation?
-the victim must be predetermined and alleviosa
can still apply even if the victim was not predetermined but there was a generic intent to kill any
person belonging to a class.
the means resorted to by the offender the

party was able to put up a defense,
is unsuccessful, then treachery is not
Instead some other circumstance may be
-Allevosia is still considered even if there is iberatio

ictus and the bullet hit an unintended person. It is
even considered even if there is error in personae.
- If offender used superior strength and victim was

denied a chance to defend himself, there is
treachery. Treachery must be alleged in the
information. BUT if the victim was able to put up
successful resistance, there is no more treachery but
the use of superior strength may be alleged and this
still qualifies this to murder.
THAT ADVANTAGE BE TAKEN OF SUPERIOR

STRENGTH, OR MEANS BE EMPLOYED TO
WEAKEN THE DEFENSE
Meaning of
strength."
One attendant qualifying aggravating circumstance

enumerated in 248 is enough to constitute it to
murder. If there are more than 1, then only 1 will be
taken as qualifying and all others will be taken as
ordinary mitigating.
"advantage
be
taken
of
superior
It means to deliberately use excessive force that is

cut out of proportion to the means for self-defense
available to the person attacked. (People v. Lobingas,
et al., December 17, 2002, 394 SCRA 0)
All aggravating circumstances must be alleged in the

information.
To take advantage of superior strength means to

purposely use force that is out of proportion to the
means of defense available to the person attacked.
Q: 3 young men resented the fact that the victim

continued to visit a girl in their neighbourhood
despite the warning they gave him. Bullies. So 1
evening after victim visited the girl, they tied him
both arems and legs tied around the tree, they
thought theyd give him a lesson by whipping him
with branches of gumamela. They left him not
knowing he died. What was the crime committed?
(People v. Delim, 396 SCRA 386)
For the aggravating circumstance of abuse of

superior strength to be appreciated, the size, age,
and strength of the parties must considered, there
must be a notorious inequality of forces been the
victim and the aggressor, giving the latter a
superiority strength which is taken advantage of by
him in the commission he crime. Abuse of superior
strength is absorbed in treachery. People v. Hugo,
A: Murder because the accused deprived the victim

the chance to defend himself in tying him to the tree.
Treachery refers to the manner in committing the
crime. No more risk on the parts of the accused to
inflict injuries to the victim, because the latters
hands and legs were tied.
410 SCRA 62)
Although what was initially intended was only to

inflict PI, the manner adapted by the accused was
54
Criminal Law II TSN

2nd Exam Coverage
Another qualifying circumstance is taking advantage

of superior strength.
considered impertinent, and witnesses testified that

appellant and his companions went after Claro
immediately after it was uttered. Even the choice of
weapon, a beer bottle readily available and within
grabbing range at the table as appellant followed
outside, shows that the intent to harm came about
spontaneously.
it means to use deliberate excessive force

that is out of proportion to the means of selfdefense avaible to the person being attacked.
For it to be appreciated, the age, size and sex
of the parties must be considered. It must be
that the offender took advantage of his
size,age and sex to the commission of the
crime.
It is absorb in treachery.
Superiority in number does not necessarily amount to

the qualifying circumstance of taking advantage of
superior strength. It must be shown that the
aggressors combined forces in order to secure
advantage from their superiority in strength.
READ:
People vs Caaveras, G.R. No. 193839,
November 27, 2013
A went to the house of Oriel looking for Judas. B and
3 other unidentified persons who were having a
drinking spree answered that Judas were them. The
3 persons went out and punched A followed by B
who struck As head with a beer bottle. A died as a
result.
When appreciating this qualifying circumstance, it

must be proven that the accused simultaneously
assaulted the deceased. Indeed, when assailants
attack a victim alternately, they cannot be said to
have taken advantage of their superior strength.
(Continuation of PEOPLE vs. CAAVERAS,

NOVEMBER 27, 2013) We have had occasion to
B was charged for the crime of murder qualified by

treachery and superior strength. RTC convicted B on
appeal, the SC said:
rule that treachery is not present when the killing is

not premeditated, or where the sudden attack is not
preconceived and deliberately adopted, but is just
triggered by a sudden infuriation on the part of the
accused as a result of a provocative act of the victim,
or when the killing is done at the spur of the
moment. So we cannot appreciate there treachery
SC: Treachery involves not only the swiftness,

surprise, or suddenness of an attack upon an
unsuspecting
victim,
rendering
the
victim
defenseless. It should also be shown that the mode
of attack has knowingly been intended to accomplish
the wicked intent.
though the accused is charged for murder and the

Supreme Court said no it should only be for
homicide.
Thus, the second element is the subjective aspect of

treachery. It means that the accused must have
made some preparation to kill the deceased in a
manner that would insure the execution of the crime
or render it impossible or hard for the person
attacked to resort to self-defense or retaliation. The
mode of attack, therefore, must have been planned
by the offender and must not have sprung from an
unexpected turn of events.
In this case, there was no time for appellant

and his companions to plan and agree to deliberately
adopt a particular means to kill Claro. The first query
of Claro was regarded as innocent enough and was
given no attention. It was the second query that was
considered impertinent, and witnesses testified that
appellant and his companions went after Claro
immediately after it was uttered. Even the choice of
weapon, a beer bottle readily available and within
grabbing range at the table as appellant followed
outside, shows that the intent to harm came about
spontaneously. Spur of the moment lang.
We have had occasion to rule that treachery is not

present when the killing is not premeditated, or
where the sudden attack is not preconceived and
deliberately adopted, but is just triggered by a
sudden infuriation on the part of the accused as a
result of a provocative act of the victim, or when the
killing is done at the spur of the moment.
Superiority in number does not necessarily

amount to the qualifying circumstance of taking
advantage of superior strength. It must be shown
that the aggressors combined forces in order to
secure advantage from their superiority in strength.
When appreciating this qualifying circumstance, it
must be proven that the accused simultaneously
assaulted the deceased. Indeed, when assailants
attack a victim alternately, they cannot be said to
have taken advantage of their superior strength.
In this case, there was no time for appellant and his

companions to plan and agree to deliberately adopt a
particular means to kill Claro. The first query of Claro
was regarded as innocent enough and was given no
attention. It was the second query that was
55
Criminal Law II TSN

2nd Exam Coverage
PEOPLE vs. FIELDAD, ET AL., OCTOBER 1, 2014

This involves mga detainees. They killed the jail
guards. Inmates killed the jail guards inside the jail.
After killing them, inmates fled using a tamaraw fx
then parked outside of the jail without the consent of
the owner. Fieldad argued that treachery should not
be appreciated because jail guards are presumed to
be in danger of attack always by nature of their
duties. Ang charge sa ila is murder, no qualifying
circumstance of treachery so dapat homicide lang
daw.
2. In consideration of a price, reward or promise

This qualifying aggravating circumstance affects not
only the person who gave the price, reward or
promise (principal by inducement) but also the
person who received it (principal by direct
participation).
Example: Susan induced Bryan to kill Raymond. She
promised to marry Bryan if the latter would do the
act. So Bryan killed Raymond. Both Susan and Bryan
are liable for murder because of the qualifying
aggravating circumstance of a promise. It is
indispensable that the inducement made be ? by a
consideration for the commission of the crime.
The Supreme Court here upheld the decision

of the RTC convicting the accused of the crime of
murder. Wala pay labot sa carnapping case because
as the facts would tell us the inmates fled using a
tamaraw fx then parked outside of the jail without
the consent of the owner. So aside from the murder
case, they were also charged and convicted of
carnapping in so far as the tamaraw fx is concerned.
3. By means of inundation, fire, poison, etc.

When the qualifying circumstance is the use of fire,
what various crimes may result? You have to qualify:
- If the use of fire is as a means to conceal the killing
such as burning the nipa hut where the victims
corpse was buried, 2 separate crimes are committed:
homicide and arson. You cannot say that Art. 48 will
apply if one crime is committed to conceal another
crime or if one crime is committed directly to commit
another crime. One for murder/homicide as the case
may be and the other one would be for arson. No
complexing.
- If the use of fire is as a means to kill. Gi tapok nimo
sila tanan sa nipa hut. Kapoy man sila tuk.on isa isa
so daoban na lang nako ang balay. As a result,
everybody inside was killed. The crime committed is
murder. Even if the property was burned, there is no
arson because you used fire to commit the killing.
- To burn a house but there is somebody inside and
he was killed, wala ka kabalo ha, arson is aggravated
by homicide (?).
- If it is resorted to as a joke but death resulted, the
crime committed is only homicide because in murder,
the use of fire must be purposely resorted to in order
to kill the person/must have acted with specific intent
to kill by means of fire to qualify the killing to
murder.
Now another qualifying circumstance under Art. 248

is killing by means of motor vehicles, etc. This
provision is intended to repress the frequently used
means of criminals to commit the crime and to ?
after the crime is committed. The circumstance of
use of motor vehicle is aggravating when the motor
vehicle is purposely used to facilitate the commission
of the crime.
Problem: X who was riding on a motorcycle shot Y
who was in a company with friends jogging at the
athletic ?. What crime did X commit? Answer: X
committed the crime of murder. He used a motor
vehicle as a means to kill would make a qualifying
aggravating circumstance.
Problem: X killed Y in the course of a fire. After killing
Y, X escaped with the use of his motor vehicle. What
crime did X commit? Answer: X committed the crime
of homicide only. X used a motor vehicle to facilitate
his escape and not as a means to facilitate the
commission of the crime.
Now, the use of motor vehicle is not aggravating
where the use thereof is only incidental and was not
purposely sought to facilitate the commission of the
offense or to render the escape of the offender
easier and his apprehension difficult. (PEOPLE vs.
ASTUDILLO, 401 SCRA 723)
PEOPLE vs. PUGAY AND SAMSON There was a

town fiesta and the 2 accused were at a town plaza
with their companions. All was uproariously happy
and apparently drenched with drink. Then the group
saw the victim, a 25-year old retarted, walking
nearby. They started making fun of him. They made
the victim dance by tickling him with a piece of
wood. Having gotten bored with their form of
entertainment, accused Pugay went and got a can of
gasoline and poured it all over the retarted. Then the
accused Samson lit him up, making him a frenzied
shrieking human-torch. The retarded died. The SC
said Pugay was guilty of homicide through reckless
imprudence while Samson was only guilty of
There was one ruling by the Supreme Court where

the accused used his Toyota Fortuner para ligsan
niya ang tao. It was found that he deliberately used
the Fortuner para iyang mabangga-an ang tao. The
Supreme Court said that the crime cannot just be
simple reckless imprudence resulting to homicide, it
should be murder.
56
Criminal Law II TSN

2nd Exam Coverage
homicide with the mitigating circumstance of no

intention to commit so grave a wrong as that
committed. It was because there was no animosity
between the 2 accused and the victim such that it
cannot be said that the resort to fire will kill him (?).
I will hold you responsible for reading this case.
Sec. 25, RA 9165. Qualifying Aggravating

Circumstances in the Commission of a Crime by an
Offender Under the Influence of Dangerous Drugs.
Notwithstanding the provisions of any law to the
contrary, a positive finding for the use of any
dangerous drugs shall be a qualifying aggravating
circumstance in the commission of a crime by an
offender, and the application of the penalty provided
for in the Revised Penal Code shall be applicable.
Bar Question: Gagging the mouth of a 4-year old and

dumping him into a box covered with sacks causing
suffocation and death of the child is cruelty. There is
also cruelty when the eye of a child is extracted from
its socket or when the face and the mouth of a child
are burned.
So if you are found under the influence of drugs at

the time of the commission of the crime then what
would constitute as a qualified aggravating
circumstance.
Judge talked about an example of cruelty where the

accused injured the victim and since he was not
contented, he put salt and vinegar on the wound of
the victim. The victim was in pain and died. The
crime is murder because the accused deliberately
and inhumanly augmented the suffering of the
victim. (Sorry paspas kaayo nagsturya si judge dili
nako ma apas ang exact words niya )
(Taken from 2012 Class TSN)

- If the victim is a child of tender years? It is murder
qualified by treachery because weakness of the child
due to tender age results in absence of any danger
to the offender.
- Price, reward and considerations are absorbed
under evident premeditation.
- Abuse of superior strength is inherent in treachery
of all forms. Treachery is all-embracing!
- Poison is also treachery.
Cruel wounds must be inflicted while the victim is

alive. So under the law, if cruelty was committed to
augment the physical suffering of the victim who
eventually dies, the crime is catapulted to the crime
of murder. But there must be evidence though that
when the cruel wounds were inflicted, the victim was
still alive. Otherwise, cruelty will not apply. Why?
Because a dead person cannot experience physical
suffering anymore.
PEOPLE vs. FELICIANO ET AL., MAY 5, 2014

Remember under Art. 14 of the RPC, the aggravating
circumstance of the use of masks to disguise? So ano
yan? There was a frat war. During the course of the
attack, members of the fraternity were wearing
masks. As what we have learned, of course wearing
a mask in the commission of the crime would
constitute disguise. This is one of the qualifying
aggravating circumstances taken up in the course of
the trial. The contention of the accused is while it is
true that we wore masks at that time when we
mauled these people, uban injured uban patay jud, it
(the mask) fell off; it did not serve its purpose.
Now what about scoffing or decrying the corpse of

the dead.
Example: A and B fought. In the course of the fight,
A killed B. At this point in time, A is liable for
homicide because there is no qualifying aggravating
circumstance that would catapult the crime to
murder. If after killing B, A beheaded the victim and
? into the brick then the crime could be murder
because that act is tantamount to scoffing at the
corpse of the dead. Also when you have anal
intercourse with a dead woman.
The SC said when you say disguise the

intention is to remain anonymous and unidentifiable
as you carry out the crime. That the masks fell off
does not prevent them from including disguise as an

aggravating circumstance. What is important in
alleging disguise as an aggravating circumstance is
that there was a concealment of identity by the
accused. So even if the masks, in the course of the
SIMANGAN vs. PEOPLE, JULY 8, 2004 Is the

number of wounds inflicted on the victim conclusive
proof of cruelty? No. The crime is not aggravated by
commission of the crime, fell off and your identity

was later on learned it does not erase the fact that
you still used disguise in the commission of the
crime.
cruelty simply because the victim sustained ten stab

wounds, three of which were fatal. For cruelty to be
considered as an aggravating circumstance, there
must be proof that, in inflicting several stab wounds
on the victim, the perpetrator intended to exacerbate
the pain and suffering of the victim. The number of
wounds inflicted on the victim is not proof of cruelty.
Now Art. 249. How do you distinguish homicide from

physical injuries?
In homicide, just like murder, the offended
party must die in order to consummate the crime. So
57
Criminal Law II TSN

2nd Exam Coverage
if the victim did not die, what will be the crime?

Attempted or frustrated homicide as the case may
be. In attempted or frustrated homicide, the offender
must have the intent to kill the victim. The offender
must perform acts in relation to the crime. If there is
no intent to kill, he is not liable for attempted or
frustrated homicide but only for serious or less
serious physical injuries.
Who are liable here? The one who are liable are the
person/s who inflicted serious physical injuries if it is
not known who killed the victim under paragraph 1
or the persons who used violence upon the person of
the victim under paragraph 2.
Take note that even if there is no intent to

kill, but death resulted from the injuries inflicted, still
it is homicide. It cant be physical injuries because
someone already died. The law looks at the results of
the acts of the offender and holds him liable for all
the consequences of the said acts.
1. To be considered dead there must be a quarrel, a

free for all fight, which should not involve organized
group.
Intent to kill is conclusively presumed when

death resulted. Hence, evidence of intent to kill is
required only under attempted or frustrated homicide
because if it is homicide in its consummated stage,
intent to kill there is already presumed.
When there are two persons who assaulted each

other Article 251 cannot be applied. There can be no
tumultuous affray there. The person killed in the
tumultuous affray need not be a participant in the
fight. If the participant in the affray can be identified
he can alone is liable for death or serious physical
injuries.
Summary for Article 251
2. Someone was injured or killed because of the fight

determined
Alright, RA 8294 has already been amended by RA

10591 which we have already taken up. (Judge said
she will email her handouts on this topic.)
Article 252. Physical injuries inflicted in a

tumultuous affray. - When in a tumultuous
affray as referred to in the preceding article,
only serious physical injuries are inflicted upon
the participants thereof and the person
responsible thereof cannot be identified, all
those who appear to have used violence upon
the person of the offended party shall suffer
the penalty next lower in degree than that
provided for the physical injuries so inflicted.
Now lets go to Art. 251. What is contemplated here

is a confrontation between several protagonists. The
word several means more than 3 persons who are
armed or who are provided with means of violence
who participated in the affray. Tumultuous affray is a
legal concept which means that the assault was
attended by at least 4 armed persons.
When a quarrel of force between several persons not
composing organized groups and they engage in a
fight in a confused and tumultuous manner in the
course of which some persons were killed or
wounded and the author thereof CANNOT be
ascertained. Its a free-for-all rumble kung kinsa ang
last touch or who delivered the fatal blow. So if it can
be ascertained, who actually killed the deceased,
then we do not apply tumultuous affray - Art. 251.
So the charge will be based on homicide Art. 249.
If there is a concerted fight, Art. 251 is likewise not
applicable.
When the physical injuries inflicted are of a

less serious nature and the person responsible
therefor cannot be identified, all those who
appear to have used any violence upon the
person of the offended party shall be punished
by arresto mayor from five to fifteen days.
Elements:
Example: There was a free-for-all fight. After the

smoke of battle has cleared, X was seen on the
ground lifeless. It cannot be ascertained who killed
him. But a witness identified Y as the person who
inflicted serious physical injuries upon X. Y is liable
for death caused in a tumultuous affray. The last
catch ka eh. Last catch ka because you inflicted
serious physical injuries.
(1) There is a tumultuous affray;

(2) A participant or some participants
thereof; under Art 251, the victim
need not be a participant in the fight.
suffered serious physical injuries or
physical injuries of a less serious
nature only;
What if somebody died in the fight but he is not a

participant, na collateral damage lang, will Art. 251
apply? Yes, because the law says someone is killed.
58
Criminal Law II TSN

2nd Exam Coverage
(3) The person responsible thereof

cannot be identified;
(4) All those who appear to have used
violence upon the person of the
offended party are known.
However, if the suicide is not consummated,

the penalty of arresto mayor in its medium and
maximum periods, shall be imposed.
There are two acts punishable:
Article 251
Article 252
Death would be
caused
in
a Only PI is
tumultuous affray
inflicted
Must be one
or some of
The victim need those
not be one of the involved in
participants
the quarrel
1. There are 2 acts being punished here:

1. By assisting another to commit suicide even if the
suicide is not consummated
Under the 1st act, it contemplates giving assistance
by furnishing the person contemplating to commit
suicide with a means for him to do it HIMSELF.
2. By lending assistance to another to commit suicide
to the extent of doing the killing himself
A free for all fight took place during the Christmas

celebration. After the fight subsided, X was seen on
the ground with a serious injury or less serious
injury. The person who inflicted the injury cannot be
identified but the person who used violence upon
him (if he can be identified) will be charged with
physical injuries in a tumultuous affray.
In the 2nd act, the offender himself does the killing.

Its similar to homicide.
X is inflicted with cancer and he became too weak.
One day he asked his friend Y to buy poison for him.
Out of pity Y bought the poison. X swallowed the
poison and died. This is #1 assisting another to
commit suicide.
What about slight physical injuries lang? Theres no

such thing as slight physical injuries inflicted in
tumultuous affray. It should be serious or less
serious.
The crime can be committed by giving a positive aid

which includes giving suggestions regarding the
mode of committing suicide. Example, a W suggested
to X to use an overdose of medicine. X took the
advice and died. W can be held liable for giving
assistance to suicide.
In this case, the offender cannot be identified or is

not known. The law provides an alternative solution
to the problem. The authorities may identify the
identity of the person who inflicted PI to the victim.
Once these persons are identified, they shall be
charged under 252, and suffer a penalty one degree
lower than that imposed upon in the crime of PI.
What if X took the advice but did not die. He was

cured instead. He can be held liable for giving
assistance to suicide. The act of giving an advice is
included in the definition of the law.
Note: if slight PI is committed in a tumultuous affray

and the identity of the person who committed it is
established, 252 is not applicable. The offender will
be prosecuted in the ordinary course of law. This
must be the correct view as it appears that only
serious PI committed or inflicted are covered under
Article 252.
09 BQ. Mark and Leslie are sweethearts. Their

parents did not approve of it because they are
cousins. To prove how much they love each other
mark and Leslie decided to commit suicide. They did
it simultaneously. Leslie died while mark survived.
What crime did mark commit? Giving assistance to
suicide. Leslie was determined to commit suicide and
mark assisted in the execution thereof.
Article 253. Giving assistance to suicide. - Any

person who shall assist another to commit
suicide shall suffer the penalty of prision
mayor; if such person leads his assistance to
another to the extent of doing the killing
himself, he shall suffer the penalty of reclusion
temporal.
Brono was a government employee. He malversed

funds amounting to 15M. Brono decided to commit
suicide so he asked his friend Mars to assists him.
Mars agreed by squeezing the trigger of the gun
which Brono pointed to his head. Brono survived.
Mars was charged of frustrated giving assistance to
suicide. Was the charge correct?
59
Criminal Law II TSN

2nd Exam Coverage
No, Whether the person who asked for his assistance

died, the one who gave the assistance is liable for
the crime of giving assistance to suicide in the
CONSUMMATED STAGE. The penalty of arresto
mayor in its medium and maximum periods, shall be
imposed.
1. Offender discharges a firearm against or at

another person
2. Offender had no intent to kill that person.
In the discharge of firearm, the intention of the
offender is only to intimidate the other party. There
must be absolutely no intention to kill the other party
on the part of the offender, absence of such intent
can be shown through the range or distance of which
the gun is fired.
The about the person who attempted to commit

suicide, is he liable? NO, there is no such crime.
Assuming for example, X wants to commit suicide
because he cannot accept his fate under the cruel
hands of love. So she went up to the 5th floor and it
was there that she attempted to commit suicide. It
just so happened that Y(a law student) was there
and X landed on Y and that caused the latters death
and the former survived. Question: is X criminally
liable? No. Article 4 will not apply because she was
not committing a felony when she attempted suicide.
Suicide is not a crime. Some contended that she
should be liable on account of her negligence.
However, the law says she does not incur criminal
liability.
For example, in a 100 meter radius, you aimed your

gun at him. There was really no intention to kill the
party.
The gun used here must be licensed, or the person
who carries the firearm must be authorized to do the
same. Otherwise, the accused may also be liable for
illegal possession of unlicensed firearm.
shall shoot another- what if you discharge the
firearm against the house of the victim? Is 254
committed? No, because it was not directed to the
victim himself. The law requires that the discharge
must be directed to the victim, so this crime cannot
be committed through negligence because the law
requires that it should be directed at another.
2 schools of thought (Not the UM school of thought

or Ateneo school of thought)
1. His not criminally liable because he was not
committing a felony. (Article 4)
What if the discharge is not directed at a person?

Article 155. Alarms and scandal because its also
about the discharge of a firearm eh, only that it is
not aimed at another person.
2. He is criminally liable because he lacked foresight.

He omitted that degree of care to prevent harm.
Which school of thought will you adopt?
When is firing of a gun considered as illegal

discharge, attempted homicide or alarm and
scandals?
Next, a pregnant woman takes poison to kill herself,

but does not die. In taking poison, it was the foetus
that died. Does she incur criminal liability? No, based
on the theory that suicide is not a crime, then she did
not perform a felony different from that of what she
intended.
It is illegal discharge if a person fires his gun to

another without intent to kill.
It is attempted homicide if a person fires his gun to
another with intent to kill but does not inflict a mortal
or serious wound.
Article 254. Discharge of firearms. - Any

person who shall shoot at another with any
firearm shall suffer the penalty of prision
correccional in its minimum and medium
periods, unless the facts of the case are such
that the act can be held to constitute
frustrated or attempted parricide, murder,
homicide or any other crime for which a higher
penalty is prescribed by any of the articles of
this Code.
It is alarm and scandals if a person fires his gun a

public place to cause alarm. It is not directed to
another.
Read the case of Escalante vs People January 9,
2014
Issue: can the accused be convicted in a case of
illegal possession of firearms even if the firearm was
not presented as evidence in court?
Elements of the crime:

60
Criminal Law II TSN

2nd Exam Coverage
Sc: YES. The straightforward and positive testimonies

of the prosecutions witnesses on the accused firearm
and surrounding circumstances establish the corpus
delecti. The corpus delecti is not limited to the
existence of the firearm itself. It is the whole thing.
Even if the firearm was not presented in court
nevertheless it does not prevent the court from
convicting the accused for as long as there is a
positive testimony by the prosecutions witnesses on
the accused firearm and the circumstances
surrounding it.
must be related need not

by blood
related
Concealing is of
dishonor does not
affect
the
penalty.
concealing
of
dishonor is a
mitigating
circumstance
Now if the offender is the childs mother and the

killing was done to conceal her dishonor, the penalty
is lowered down. The penalty is only prision mayor in
its medium and maximum period, and not the
penalty for parricide. The law extends the same
privilege to the maternal grandparents or either of
them, except that prision mayor shall be imposed
instead of reclusion temporal.
Article 255. Infanticide. - The penalty provided

for parricide in Article 246 and for murder in
Article 248 shall be imposed upon any person
who shall kill any child less than three days of
age.
determines the personality. If a foetus becomes a

person by legal fact of birth, the civil code provides:
If the crime penalized in this article be

committed by the mother of the child for the
purpose of concealing her dishonor, she shall
suffer the penalty of prision correccional in its
medium and maximum periods, and if said
crime be committed for the same purpose by
the maternal grandparents or either of them,
the penalty shall be prision mayor.
- it will be
considered born only when it survives 24 hours, after
the umbilical is cut and the child is separated from
the mother. If the child 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.
The legal problem here is when there is difficulty of

determining whether the crime committed is
infanticide or abortion. IN such a situation, the court
may avail of expert testimony to aid it in arriving at
the conclusion. So if it is shown that the foetus
cannot survive within 24 hours, the crime committed
is abortion. Otherwise, if it can survive, then the
crime committed will be infanticide.
1. That a child was killed.

2. That the deceased child was less than 3 days (72
hours) of age.
3. That the accused killed the said child.
The crime is based on the age of the child. If the
child is exactly three days old is murder qualified by
treachery because the child cannot defend himself.
A, a non-married woman, gave birth to B. to conceal

her dishonor, A conspired with C to dispose of the
child. C agreed and killed B by burying B somewhere.
IF the child was killed and his age was 3 days old
and above, the crime of A would be parricide. The
fact that the killing was done to conceal her dishonor
is immaterial because the charge is parricide. So the
fact that you would conceal your dishonor is only
applicable for infanticide. If A committed parricide,
what about C? Murder because he cannot be liable
for parricide because he is a stranger. What if the
child is less than 3 days old when killed, both A and
C are liable for infanticide, because it is not
predicated on the relation of the offender to the
offended party but on the age of the child. The
When the offender is the offender is the father,

mother or legitimate ascendant the crime is still
Infanticide and he shall suffer THE PENALTY of
parricide. If the offender is any other person, the
PENALTY is that of murder. IN any case, the
OFFENSE is infanticide. Even if the killer is the father,
mother or legitimate ascendant, the crime is still
infanticide if the child is less than 3 days or 72 hours
of age.
Parricide
be
Infanticide
the child must

Age should be 3
be less than 3
or older
years old
61
Criminal Law II TSN

2nd Exam Coverage
motive of the mother to kill the child now will be

considered as a mitigating circumstance.
commit? Rona committed the crime of abandonment

of a minor under Article 276.
Is concealment of dishonor an element? No. It

merely lowers the penalty.
What if, using the same problem, the child died.

What crime did rona commit? Still abandonment of
minor. When the child dies, the penalty is the same
as that of homicide.
If the child is abandoned without intent to kill and

death results as a consequence, the crime committed
is abandonment (276). If the purpose of the mother
was to conceal her dishonor, infanticide through
imprudence is not proper because the purpose of
concealing her dishonor is not compatible with the
absence of malice in culpable felonies.
Article 256. Intentional abortion. - Any person

who shall intentionally cause an abortion shall
suffer:
1. The penalty of reclusion temporal, if he shall
use any violence upon the person of the
pregnant woman.
What if the child is stillborn? Not liable because the

child is already dead, so you cannot kill him. You still
need medical proof to show that the child born was
already stillborn.
2. The penalty of prision mayor if, without

using violence, he shall act without the
consent of the woman.
What about it is the maternal grandparent who killed

the child? Liable for infanticide but also may be
mitigated or lowered penalty.

medium and maximum periods, if the woman
shall have consented
There is a requirement for the mother to claim the

mitigating circumstance of concealment of dishonour,
she must be of good reputation. If you are a CSW,
theres no way or you to avail of this mitigating
circumstance because it presupposes that you should
be of good reputation. So if youre a prostitute, you
are not entitled of lowering the penalty because you
have no honor to conceal.

1. That there is a pregnant woman
2. That violence is exerted or drugs or beverages
administered, or that that 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 foetus dies either in the womb or after having
been expelled therefrom
Example: Angelica and Drago had premarital

relations. Angelica gave birth to a baby boy. Drago
was not willing to take angelica. To conceal her
dishonour, angelica asked his ardent suitor jake to
kill and bury the child. What crime or crimes did
angelica and jake commit? It depends. If the child
was 3 days old or more angelica is liable for
parricide. Jake is liable for murder. The killing of the
child is qualified by treachery.t Jake cannot be held
liable for parricide because he is not related to the
child.
4. That the abortion is intended

What is abortion? It is the wilful killing of the foetus
from the uterus or the violent expulsion of the foetus
from the maternal womb which results into the death
of the foetus. There are 3 ways of committing
abortion:
1. By using any violence upon the person of the
pregnant woman
If the child was less than 3 days old when he was

killed, Both angelica and Jake committed Infanticide.
Under the law, the killing of a child less than 3 days
old will result to infanticide even if the child and the
offender are not related.
2. By acting, but without using violence, without the

consent of the woman. (By administering drugs or
beverages upon such pregnant woman without her
consent)
3. By acting (by administering drugs or beverages),
with the consent of the pregnant woman
Rona gave birth to a baby boy out of unwanted

pregnancy. 2 days after giving birth, rona abandoned
the child and left him in the supermarket. The child
was seen by a young couple. What crime did rona
Distinction between infanticide and abortion

62
Criminal Law II TSN

2nd Exam Coverage
Infanticide
Abortion
The
child
is
incapable
of
sustaining
an
independent
life
outside
the
maternal womb
The
child
is
already
capable
after its separation
from
maternal
womb
is not material that the offender knows of the

pregnancy. The violence must be physical and not a
mere threat. If you were quarrelling with a woman
and then you gave her looks that can kill. Lisuda pud
ana oi. The requirement is that there must be
physical violence.
Example: loloy had an argument with Rose. In the
course of the altercation, loloy pointed his gun at
rose. Loloy did not know that Rose was pregnant.
Rose was frightened, as a result Rose had an
abortion. Is loloy liable for unintentional abortion?
No, there was no Physical violence. At most he can
only be made liable for grave trheats.
Not
a
crime
against
the
woman
but
against the foetus.
If the mother
suffers death or PI
as a consequence
of abortion, you
have
complex
crime of murder
or
PI
and
abortion.
Another: X and Y are husband and wife. They had a

heated argument. In the course of the altercation, Y
was hurt by a bottle of San Miguel. The bottle was
hit on her hip. Y was pregnant then. She had an
abortion as a result. X is liable for unintentional
abortion.
Niki and Miki are sweethearts. They engaged in

premarital relations. Nikki became pregnant but Miki
was not ready to get married. Mikky punched Nikkis
abdomen several times, as a result nikki suffered an
abortion. Mikki is liable for intentional abortion
because he used violence against a pregnant woman.
Another: Reymart went home drunk. His wife

Claudine refused to let reymart enter into the room.
When Reymart got inside the house, he struck
Claudine with chair. As a result, Claudine died and
suffered abortion. What crime did Reymart commit?
Complex crime of parricide and unintentional
abortion. Under the law result when a single act
constitutes two or more grave or less grave felonies.
Parricide is a grave felony while unintentional
abortion s a less grave felony.
A and B are College students. They engaged in

premarital relations. A thought she was pregnant so
B wanted to abort the child. It turned out however
that he she was not really pregnant. Is B liable for
impossible crime? NO, Impossible crime can be
committed only if there are no other crimes
committed. There are injuries here. It is true that
abortion could not have resulted since A was not
really pregnant but B is not liable for impossible
crime because he committed a crime in the process.
Article 4. B is liable for Physical Injuries.
Another pregnant woman decided to commit suicide.

She jumped out of the window of the building and
killed a passer-by and an abortion happened
thereafter. Is the woman liable for unintentional
abortion? No, what is contemplated under
unintentional abortion is that the force or violence
must come from another. The violence or force must
come from another. If the woman herself is the one
inflicting the abortion, it will fall under intentional
abortion. But in this case, the woman who attempted
suicide, suicide is not a felony under the RPC. So if
she did not commit a felony, then she is not liable at
all.
Article 257. Unintentional abortion. - The

penalty of prision correccional in its minimum
and medium period shall be imposed upon any
person who shall cause an abortion by
violence, but unintentionally.
Elements:
1. The violence is intentionally exerted.
Article 258. Abortion practiced by the woman

herself of by her parents. - The penalty of
prision correccional in its medium and
maximum periods shall be imposed upon a
woman who shall practice abortion upon
2. As a result of violence, the foetus dies either in the

womb or after being expelled therefrom.
In an unintentional abortion, it is necessary that the
violence was intentionally inflicted upon a woman. It
63
Criminal Law II TSN

2nd Exam Coverage
herself or shall consent that any other person

should do so.
In order to commit the crime of mutilation, the

offender must have the intention, either to deprive
the party of some organ necessary for generation
such as the penis or the ovary, or to dismember the
offended party.
Any woman who shall commit this offense to

conceal her dishonor, shall suffer the penalty
of prision correccional in its minimum and
medium periods.
When the loss of an organ for reproduction is

unintended, or, if the dismembering of the offended
party is unintentional, what crime is committed?
If this crime be committed by the parents of

the pregnant woman or either of them, and
they act with the consent of said woman for
the purpose of concealing her dishonor, the
offenders shall suffer the penalty of prision
correccional in its medium and maximum
periods.
The crime is mutilation if intentional, if not, you

cannot be liable for mutilation but perhaps serious
physical injuries.
Example:
The common mistake is to associate mutilation with
reproductive organs only. This is wrong, because it
may also refer to any part of the human body that is
not susceptible to grow again.
Article 259. Abortion practiced by a physician

or midwife and dispensing of abortives. - The
penalties provided in Article 256 shall be
imposed in its maximum period, respectively,
upon any physician or midwife who, taking
advantage of their scientific knowledge or
skill, shall cause an abortion or assist in
causing the same.
If what was cut off is a reproductive organ, the

penalty is higher. Can the crime of mutilation be
done through culpa?
NO, it cannot be committed through criminal
negligence, it should always be intentional.
In the first kind of mutilation, the castration must be
made purposely.
Otherwise, it will be considered under the second
type.
Example:
X was married to Marco. For many years, X suffered
intolerable pain. One night when Marco was asleep,
X entered the room and cut off the penis of Marco.
She is liable for mutilation because she intentionally
castrated the reproductive organ of her husband.
Any pharmacist who, without the proper

prescription from a physician, shall dispense
any abortive shall sufferarresto mayor and a
fine not exceeding 1,000 pesos.
Article260 Responsibility of participants in a duel
and 261 Challenging to a duel.- OBSOLETE
Article 262. Mutilation. - The penalty of
reclusion temporal to reclusion perpetua shall
be imposed upon any person who shall
intentionally mutilate another by depriving
him, either totally or partially, or some
essential organ of reproduction.
Another example:
Y is a good billiard player. He challenges other
players. He met a match in the person of Raul. They
played before a big crowd at the Cuneta Astrodome.
Bets were made at the side of Y, one of them was
Don Juan.
Y lost. Don Juan suspected that Y dropped the game
intentionally. Y was later accosted by Don Juans
bodyguard where he was brought to the latter. Don
Juan and Y met face to face. Don Juan chopped off
the right hand of Y to prevent him from playing the
game again.
Don Juan committed mutilation. He intentionally cut
off the hand of Y.
Any other intentional mutilation shall be

punished by prision mayor in its medium and
maximum periods.
2 kinds of mutilation:
1.
depriving him, either totally or partially, or
some essential organ for reproduction
2.
entionally making other mutilation,
that is, by lopping or clipping off any part of
the body of the offended party, other than
the essential organ for reproduction, to
deprive him of that part of his body
Another example: During a boxing bout, one boxer

bit the ear of the other. Is he liable for mutilation?
Yes. There was deliberate intent to remove the
others ear.
Another: X and Y engaged in a fight. In the course of
the fight, X used his bolo and hit the penis of Y. The
64
Criminal Law II TSN

2nd Exam Coverage
penis was cut off. Is X liable? No, since he did not

intentionally cut off the penis of Y.
The provisions of the preceding paragraph

shall not be applicable to a parent who shall
inflict physical injuries upon his child by
excessive chastisement.
Not discussed by Judge. Discussion from old TSN:
The crime of physical injury is a crime of result. (In
fact when we discussed this in criminal law 1, this is
one of the crimes where it does not admit of the
attempted or frustrated stage. It is always in the
consummated form.)
* Reason for being a crime of result and for always
being in the consummated stage:
Under our laws, crime of physical injury is
based/determined upon the gravity of the injury
sustained by the victim
As long as the injury is not there, there can be no
attempted or frustrated stage.
This article assumes that the wounding, assaulting,
etc, has no intent to kill. In serious physical injuries
(SPI), no intent to kill. Why? If there is intent to kill,
what would be the effect? It may be the case of
homicide or murder.
What is the penalty for SPI? It depends on the
seriousness of the injury. Under paragraph 1, it
would be prision mayor. Under par 2, it would prision
correccional and maximum. Under par 3, prision
correccional medium, under paragraph 4, prision
correccional minimum.
How is the crime of SPI committed? If you beat,
wound, assault a person without the intent to kill,
and that he sustained injuries afterwards, that is the
basic answer.
For example: Mr. Astillo wounded Jamel. There is no
intent to kill and Jamel sustained injuries which are
serious. This is obviously covered under this article.
Now what if, because of the beating, Jamel died?
Take note: astillo has no intention to kill. This time,
the crime would be converted to homicide. Why? The
principle is, once the victim dies, the intent to kill is
presumed. Although, the penalty is somehow
mitigated in this case with no intent to kill.
Now, lets go to the first paragraph. The penalty of
prision mayor, if in consequence of the physical
injuries inflicted, the injured person shall become
insane, imbecile, impotent, or blind; What kind of
blindness is contemplated? It must be complete or
total. Mere defect in vision is not included. Now what
if it is a partial blindness? So only one eye is affected.
That is covered under paragraph 2:or shall have lost
an eye, a hand
Now what do we mean by impotent? Inability to
copulate.
How do you compare this with the crime of
mutilation? In mutilaton, you really intend to cut the
organ, but in paragraph 1, walay intent. Coincidence
lang. For example, nagsinumbagay si Mr Astillo and
si Jamel and it so happened na naghubo silang duha.
Dili man siguro na sila bayot, noh? So just imagine
na naa sila sa dagat mao ng naghubo silang duha. As
Article 263. Serious physical injuries. - Any

person who shall wound, beat, or assault
another, shall be guilty of the crime of serious
physical injuries and shall suffer:
1. The penalty of prision mayor, if in
consequence of the physical injuries inflicted,
the injured person shall become insane,
imbecile, impotent, or blind;
medium and maximum periods, if in
the person injured shall have lost the use of
speech or the power to hear or to smell, or
shall have lost an eye, a hand, a foot, an arm,
or a leg or shall have lost the use of any such
member, or shall have become incapacitated
for the work in which he was therefor
habitually engaged;
minimum and medium periods, if in
the person injured shall have become
deformed, or shall have lost any other part of
his body, or shall have lost the use thereof, or
shall have been ill or incapacitated for the
performance of the work in which he as
habitually engaged for a period of more than
ninety days;
4. The penalty of arresto mayor in its
maximum period to prision correccional in its
minimum period, if the physical injuries
inflicted shall have caused the illness or
incapacity for labor of the injured person for
more than thirty days.
If the offense shall have been committed
against any of the persons enumerated in
Article 246, or with attendance of any of the
circumstances mentioned in Article 248, the
case covered by subdivision number 1 of this
Article shall be punished by reclusion temporal
in its medium and maximum periods; the case
covered by subdivision number 2 by prision
correccional in its maximum period to prision
mayor in its minimum period; the case covered
by
subdivision
number
3
by
prision
correccional in its medium and maximum
periods; and the case covered by subdivision
number 4 by prision correccional in its
minimum and medium periods.
65
Criminal Law II TSN

2nd Exam Coverage
a result of the quarrel, Mr. Astillo unknowingly picked

a knife and he used it to stab Jamel. Jamel wasnt
stabbed; instead, his penis was cut. The crime
committed is not mutilation but SPI under paragraph
1.
ORGANIZATIONS AND PROVIDING PENALTIES

THEREFOR
Section 1. Hazing, as used in this Act, is an
initiation rite or practice as a prerequisite for
admission into membership in a fraternity,
sorority or organization by placing the recruit,
neophyte or applicant in some embarrassing or
humiliating situations such as forcing him to
do menial, silly, foolish and other similar tasks
or activities or otherwise subjecting him to
physical or psychological suffering or injury.
2nd paragraph:
What is lost here is the principal member of the
body. Complete loss of an eye is not necessary as
partial loss of vision may be enough to commit the
2nd par. The lost of arm, leg again, to be
differentiated against mutilation, because the in
mutilation the cutting is intentional. Here, it is not.
Here, the cutting is but a result of an assault directed
against the other person. Loss of hearing, the cutting
here must be on both ears. If only one is cut, par 2
will not apply but par 3: , .if in consequence of the
physical injuries inflicted, the person injured shall
have become deformed, or shall have lost any other
part of his body, or shall have lost the use thereof, or
a leg or shall have lost the use of any such member,
or shall have become incapacitated for the work in
which he was therefor habitually engaged
So what is incapacity referred here? It is permanent.
Example: the one injured is a carpenter, but because
he lost an arm, he can no longer perform his job
which he is habitually engaged into. Under the 3rd
par, how do we define deformity? It is meant as
physical
ugliness,
permanent
and
definite
abnormality. But it must be conspicuous and visible.
Now, loss of teeth sa atubangan, gisumbag man ka,
so nabungi na ka. SPI diay na? YES. Maski isa lang
na nga ngipon, its visible and conspicuous.
The term "organization" shall include any club

or the Armed Forces of the Philippines,
Philippine National Police, Philippine Military
Academy, or officer and cadet corp of the
Citizen's Military Training and Citizen's Army
Training.
The
physical,
mental
and
psychological testing and training procedure
and practices to determine and enhance the
physical, mental and psychological fitness of
prospective regular members of the Armed
Forces of the Philippines and the Philippine
National Police as approved ny the Secretary
of National Defense and the National Police
Commission duly recommended by the Chief of
Staff, Armed Forces of the Philippines and the
Director General of the Philippine National
Police shall not be considered as hazing for the
purposes of this Act.
Section 2. No hazing or initiation rites in any
form or manner by a fraternity, sorority or
organization shall be allowed without prior
written notice to the school authorities or head
of organization seven (7) days before the
conduct of such initiation. The written notice
shall indicate the period of the initiation
activities which shall not exceed three (3)
days, shall include the names of those to be
subjected to such activities, and shall further
contain an undertaking that no physical
violence be employed by anybody during such
initiation rites.
What about if it is bag-ang (?), molar? So it is not

visible, imo pa ng ipa nganga eh. The book of JBL
Reyes says, yes, it is still covered. What about the
scar on your face which cannot be cured by action of
nature? YES, it can constitute SPI because it is visible
and conspicuous.
What if the scar is not committed to the face?
Rather, it is in the navel. Nagkarambola man si Ms.
Douglass and si Ms. Corpuz. Is SPI committed? NO, it
is not visible and conspicuous.
The phrase any other member of his body, what
does it mean? It is any member other than eye,
hand, foot, arm, leg as mentioned in paragraph 2.
Incapacity in par 3 is not permanent but such
incapacity must not last more than 90 days.
Fourth paragraph: The illness or incapacity here must
not to exceed 90 days for more than 30 days. So
meaning, 31 days to 90 days.
Section 3. The head of the school or

organization or their representatives must
assign at least two (2) representatives of the
school or organization, as the case may be, to
be present during the initiation. It is the duty
of such representative to see to it that no
physical harm of any kind shall be inflicted
upon a recruit, neophyte or applicant.
Republic Act 8049: Anti-Hazing Law

REPUBLIC ACT No. 8049
Section 4. If the person subjected to hazing or

other forms of initiation rites suffers any
physical injury or dies as a result thereof, the
officers and members of the fraternity, sorority
AN ACT REGULATING HAZING AND OTHER

FORMS
OF
INITIATION
RITES
IN
FRATERNITIES, SORORITIES, AND OTHER
66
Criminal Law II TSN

2nd Exam Coverage
or organization who actually participated in

the infliction of physical harm shall be liable as
principals. The person or persons who
participated in the hazing shall suffer:
performance on the activity or work in which

he was habitually engaged from one (1) to
nine (9) days, or that the injury sustained shall
require medical assistance for the same
period.
1. The penalty of reclusion perpetua (life

imprisonment) if death, rape, sodomy or
mutilation results there from.
8. The penalty of prison correccional in its

maximum period (4 years, 2 months and one
day to 6 years) if in consequence of the hazing
the victim sustained physical injuries which do
not prevent him from engaging in his habitual
activity or work nor require medical
attendance.
2. The penalty of reclusion temporal in its

maximum period (17 years, 4 months and 1
day to 20 years) if in consequence of the
hazing the victim shall become insane,
imbecile, impotent or blind.
The responsible officials of the school or of the

police, military or citizen's army training
organization, may impose the appropriate
administrative sanctions on the person or the
persons charged under this provision even
before their conviction. The maximum penalty
herein provided shall be imposed in any of the
following instances:

medium period (14 years, 8 months and one
day to 17 years and 4 months) if in
consequence of the hazing the victim shall
have lost the use of speech or the power to
hear or to smell, or shall have lost an eye, a
hand, a foot, an arm or a leg or shall have lost
the use of any such member shall have become
incapacitated for the activity or work in which
he was habitually engaged.
(a) when the recruitment is accompanied by

force, violence, threat, intimidation or deceit
on the person of the recruit who refuses to
join;

minimum period (12 years and one day to 14
years and 8 months) if in consequence of the
hazing the victim shall become deformed or
shall have lost any other part of his body, or
shall have lost the use thereof, or shall have
been ill or incapacitated for the performance
on the activity or work in which he was
habitually engaged for a period of more than
ninety (90) days.
(b) when the recruit, neophyte or applicant

initially consents to join but upon learning that
hazing will be committed on his person, is
prevented from quitting;
(c) when the recruit, neophyte or applicant
having undergone hazing is prevented from
reporting the unlawful act to his parents or
guardians, to the proper school authorities, or
to the police authorities, through force,
violence, threat or intimidation;
5. The penalty of prison mayor in its maximum

period (10 years and one day to 12 years) if in
have been ill or incapacitated for the
he was habitually engaged for a period of
more than thirty (30) days.
(d) when the hazing is committed outside of

the school or institution; or
(e) when the victim is below twelve (12) years
of age at the time of the hazing.
6. The penalty of prison mayor in its medium

he was habitually engaged for a period of ten
(10) days or more, or that the injury sustained
shall require medical assistance for the same
period.
The owner of the place where hazing is

conducted shall be liable as an accomplice,
when he has actual knowledge of the hazing
conducted therein but failed to take any action
to prevent the same from occurring. If the
hazing is held in the home of one of the
officers or members of the fraternity, group, or
organization, the parents shall be held liable
as principals when they have actual
knowledge of the hazing conducted therein
but failed to take any action to prevent the
same from occurring.
7. The penalty of prison mayor in its minimum

67
Criminal Law II TSN

2nd Exam Coverage
The school authorities including faculty

members who consent to the hazing or who
have actual knowledge thereof, but failed to
take any action to prevent the same from
occurring shall be punished as accomplices for
the acts of hazing committed by the
perpetrators.
participated in the infliction of physical harm shall be

liable as principals.
What is the liability of the owner of the house where

the hazing was done? The owner of the place where
hazing is conducted shall be liable as an accomplice,

when he has actual knowledge of the hazing
conducted therein but failed to take any action to
prevent the same from occurring. If the hazing is
held in the home of one of the officers or members
of the fraternity, group, or organization, the parents
shall be held liable as principals when they have
actual knowledge of the hazing conducted therein
but failed to take any action to prevent the same
from occurring.
So the parents may also be held liable if they have
actual knowledge but failed to prevent the same
from occurring.
The officers, former officers, or alumni of the

organization, group, fraternity or sorority who
actually planned the hazing although not
present when the acts constituting the hazing
were committed shall be liable as principals. A
fraternity or sorority's adviser who is present
when the acts constituting the hazing were
committed and failed to take action to prevent
the same from occurring shall be liable as
principal.
What about the school authorities? The school
The presence of any person during the hazing

is prima facie evidence of participation therein
as principal unless he prevented the
commission of the acts punishable herein.
authorities including faculty members who consent to

the hazing or who have actual knowledge thereof,
but failed to take any action to prevent the same
from occurring shall be punished as accomplices for
the acts of hazing committed by the perpetrators.
Any person charged under this provision shall

not be entitled to the mitigating circumstance
that there was no intention to commit so grave
a wrong.
What about the officers, former officers, etc. can

they be liable even if they were absent during the
hazing? The officers, former officers, or alumni of the
This section shall apply to the president,

manager, director or other responsible officer
of a corporation engaged in hazing as a
requirement for employment in the manner
provided herein.
organization, group, fraternity or sorority who

actually planned the hazing although not present
when the acts constituting the hazing were
committed shall be liable as principals. A fraternity or
sorority's adviser who is present when the acts
constituting the hazing were committed and failed to
take action to prevent the same from occurring shall
be liable as principal.
--What do you understand about hazing? This is an

initiation rite or practice as a prerequisite for
admission into membership in a fraternity, sorority or
organization by placing the recruit, neophyte or
applicant in some embarrassing or humiliating
situations such as forcing him to do menial, silly,
foolish and other similar tasks or activities or
otherwise subjecting him to physical or psychological
suffering or injury.
Presence as prima facie evidence The presence of
any person during the hazing is prima facie evidence

of participation therein as principal unless he
prevented the commission of the acts punishable
herein.
Can you be entitled to mitigating circumstance? Any
person charged under this provision shall not be
entitled to the mitigating circumstance that there was
no intention to commit so grave a wrong.
Hazing is not entirely prohibited. It may be allowed

subject to the compliance with the requirements of a
prior written notice to the school authorities or head
of organization seven (7) days before the conduct of
such initiation. What kind of hazing is that? Simple
lang, initiation.
Article
264.
Administering
injurious
substances or beverages. - The penalties
established by the next preceding article shall
be applicable in the respective case to any
person who, without intent to kill, shall inflict
upon another any serious, physical injury, by
knowingly administering to him any injurious
substance or beverages or by taking
advantage of his weakness of mind or
credulity.
The law is violated when the person subjected to

hazing or other forms of initiation rites suffers any
physical injury or dies as a result thereof.
Who are liable? Section 4: the officers and members

of the fraternity, sorority or organization who actually
68
Criminal Law II TSN

2nd Exam Coverage
This article refers to the means of committing serious

physical injuries. The offender must have no
intention to kill the victim because if he has such
intention, the liability is attempted/frustrated
homicide/murder.
The want to administer injurious substance or
beverages within the meaning of article 264 means
to direct, or cause said substance or beverage to be
taken orally by the injured person to suffer SPI as a
result. If the resulting injuries are serious, then we
do not use article 264, instead, we base it on article
263.
Article 266. Slight physical injuries and

maltreatment. - The crime of slight physical
injuries shall be punished:
1. By arresto menor when the offender has
inflicted
physical
injuries
which
shall
incapacitate the offended party for labor from
one to nine days, or shall require medical
attendance during the same period.
2. By arresto menor or a fine not exceeding 20
pesos and censure when the offender has
caused physical injuries which do not prevent
the offended party from engaging in his
habitual work nor require medical assistance.
Article 265. Less serious physical injuries. Any person who shall inflict upon another
physical injuries not described in the
preceding articles, but which shall incapacitate
the offended party for labor for ten days or
more, or shall require medical assistance for
the same period, shall be guilty of less serious
physical injuries and shall suffer the penalty of
arresto mayor.
3. By arresto menor in its minimum period or a

fine not exceeding 50 pesos when the offender
shall ill-treat another by deed without causing
any injury.
3 kinds contemplated under this article
1. Physical injuries which incapacitated the
offended party for labor from one to nine
days, or required medical attendance during
the same period.
2. Physical injuries which did not prevent the
offended party from engaging in his habitual
work or which did not require medical
attendance.
3. Ill-treatment of another by deed without
causing any injury.
Whenever less serious physical injuries shall

have been inflicted with the manifest intent to
kill or offend the injured person, or under
circumstances adding ignominy to the offense
in addition to the penalty of arresto mayor, a
fine not exceeding 500 pesos shall be imposed.
Any less serious physical injuries inflicted upon
the offender's parents, ascendants, guardians,
curators, teachers, or persons of rank, or
persons in authority, shall be punished by
prision correccional in its minimum and
medium periods, provided that, in the case of
persons in authority, the deed does not
constitute the crime of assault upon such
person.
The crime of maltreatment is a crime of slight

physical injuries while the term is included in
identifying the kind of slight physical injuries, the
law, however, failed to define what it is all about.
There is no complete definition of what this is all
about.
Under the principle of ejusdem generis,
maltreatment must be another form of illtreatment.
A good example of maltreatment would be
the slapping of the victims face which does
not produce any injury.
Just like Serious Physical Injuries (SPI) and Less SPI
(LSPI), Slight Physical Injuries (SLPI) is a crime of
result and is a crime of consequence. The degree of
punishment to be imposed to the offender is based
on the extent of the injuries that is sustained by the
victim. In our criminal law 1, we call it as a formal
crime.
It is a crime where it can only be committed
in its consummated stage. It cannot be
committed in the attempted or frustrated
stage.
How many days to constitute Less Physical Injuries

(LPI)?
10 days or more of incapacity or medical
attendance
Number of days
This means the number of days that the
victim is in actual medical attendance
For example, you wounded someone and the victim
doesnt want to go to the hospital. But he was
incapacitated; he was persistent not to go to the
hospital so the incapacity lasted for 11 days. What
crime is committed? LPI under 265 because law says
incapacitated more than 10 days.
What are the qualifying circumstances?
There is manifest intent to insult or offend the
injured party or the circumstance is an
ignominy to the offense.
69
Criminal Law II TSN

2nd Exam Coverage
In relation to that, kindly read the case of People vs

Fortich 281 scra 600.
In SLPI, there is no evidence of actual injury, no
proof of incapacity or medical assistance. Ex. Sagpa
In paragraph 3, the slapping of the face of the victim
is without causing dishonor; otherwise, it shall
become slander by deed.
It is is committed when a person publicly
subjects another to an act intended to cast
dishonor, discredit upon the person. Kanang,
nilaparo (?) ka ba.
The slapping of the face must have been
done with the intention to dishonor you.
Example, in a meeting, you wanted to
dishonor him, you slapped him on the face.
The crime that should be filed is not SLPI but
slander by deed. But if there is no
manifestation that the slapping of the face is
to cause dishonor, then, that would bring
about art 266.
The penalty is very minimal for both, murag
tag P200 ra bana. So pagsagpa/paglaparo
nimo, hatagi na lang ug 200.
Siguraduha lang nimo na ang i-penalty sa imo
kay fine dili arresto menor kay bilanggo ka!
The law says, shall require medical attendance
during the same period.
Supposing A wounded the arm of B which
would have healed for 8 days only. B did not
see the wound and continue working. So in
short, there was no incapacity and no medical
attendace. On the 9th day, mao gihapon.
What crime is committed up to that point?
Only SLPI under paragraph 2 and not 1
because 1 requires incapacity or medical
attendance from period of 1 9 days.
Now what if the victim continued working,
and was thereby not incapacitated. He did not
go to the doctor or hospital. However, the
wound was not healed. If you are the fiscal,
what information should you file agains the
offender?
Still, the crime is SLPI because there was no
showing that he was incapacitated even for
one single day nor was there a showing that
he had medical assistance, regardless if the
wound did not heal.
Supposing the wound did not heal on the
30th day, on the 31st day and still the wound
did not heal. What is the crime? It will no
longer be covered under SLPI but under SPI
under paragraph 4 because the victim here
had been ill for more than 30 days. The fact
that the victim never went to see a doctor is
immaterial because medical attendance is not
required under SPI.
Art. 266-A. Rape, when and how committed

Rape is committed
1.) By a man who shall 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 is otherwise unconscious;
c) By means of fraudulent machination or
grave abuse of authority;
d) When the offended party is under 12 yrs
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 paragraph 1
hereof, shall commit an act of sexual assault
inserting his penis into another persons
mouth or anal orifice, or any instrument or
object, into genital or anal orifice or another
person.
RA 8353 : An act expanding the definition the crime
of rape, reclassifying the same as a crime against
person, amending for the purpose Act 3815 as
amended.
So under RA 8353, there are now two kinds of rape:
1. Rape by sexual intercourse
2. Rape by sexual assault
Is RA 8353 malum prohibitum? No, it is mala in se
because it is intended to amend the existing articles
of RPC.
When and how committed?
1. Rape is committed, under paragraph 1, By a
man who shall have carnal knowledge of a
woman under any of the following
circumstances:
c) By means of fraudulent machination or grave
abuse of authority;
d) When the offended party is under 12 yrs of
age or is demented, even though none of the
circumstances mentioned above be present.
2. It may also be committed under the second
type: By any person who, under any of the
circumstances mentioned in paragraph 1
hereof, shall commit an act of sexual assault
inserting his penis into another persons
mouth or anal orifice, or any instrument or
object, into genital or anal orifice or another
person.
People v. Sales, October 3, 2011 dealing on

maltreatment of children, slight physical injuries.
70
Criminal Law II TSN

2nd Exam Coverage
In People v. Pareja, Jan 15, 2014 The SC makes a

new classification. At present, we use these terms
now:
1. Organ rape / penile rape (rape by sexual
intercourse)
2. Instrument / object rape / gender-free rape
(rape by sexual assault)
injury is not necessary. After all, it is not an element

of the crime of rape.
In rape committed by the father against his own
child, the fathers moral ascendancy and influence
substitute for violence and intimidation.
What about if the victim has consented because of
fear? Consent obtained by fear or personal violence
is no consent at all. Even if the man puts no hand
on the woman, yet, if by the use of mental and moral
coercion, the accused so overpowers her mind over
fear that as a result, she does not desist, the crime
of rape is committed.
What are the differences between the 2 kinds of

rape, the traditional (organ) and
In Traditional rape (organ rape), the offender
is always a man, the offended party is always
a woman. In rape by sexual assault, the
offender may be a man/woman and the
offended party may be a man/woman. The
penalty is lower than that by rape of sexual
intercourse.
In order to consummate the crime of rape, it is not

necessary that there is full penetration of the female
organ by the male organ. Why?
Because penetration, no matter how slight it
is, even if there is no ejaculation, the crime of
rape is consummated.
If there are no traces of semen in the vagina
of the woman, rape is still committed. The
presence or absence of semen is immaterial.
Mere penetration on the female labia
consummates the crime of rape.
Effect of age:
If the victims age is less than 7 years old,
mandatory penalty of death is imposed
(although we cannot impose that), so we can
only impose reclusion perpetua.
If less than 12 years old (statutory rape),
reclusion perpetua.
If less than 18 years old and there is
relationship, again mandatory death, but only
reclusion perpetua because of the prohibition
What happens if there is an attempt to penetrate but

there was no penetration at all?
The crime of rape can never be committed in
a frustrated stage, it can only be in the
attempted or consummated stage.
If there is slight penetration, rape is
consummated.
Penile rape can only be committed by a man against

a woman. There must be carnal knowledge. There
must be sexual intercourse. How is rape committed
through force, threat, intimidation? What kind of
force? The force required in rape need not be
overpowering or irresistible when it is applied. The
force employed in accomplishing it is sufficient to
consummate the purpose which the offender has in
mind.
There is no frustrated rape

Disregard the stray decision of the court in PP
vs Irinia because in PP vs Orita there is no
frustrated stage, there is no middle ground
SC said it is highly inconceivable how the
crime of frustrated rape is committed. Mere
penetration, no matter how slight, is already
in the consummated stage.
So if there is no penetration, attempted rape.
There is no middle ground.
What about intimidation? Intimidation refers to the

mind of the victim, it is subjective. There is no hard
and fast rule. There is no particular rule in
determining the level of intimidation because it
depends on how the victim perceived the intimidation
at the time the crime was committed. Peoples
reactions vary depending on the situation.
PP vs Handaan: The accused, with a very big penis,

tried to enter into the vagina of a woman. SC said
mere entry of the labia without rupture of the hymen
constitutes consummated rape.
Is it necessary that in rape, there must be violence?

No, because intimidation is sufficient. This exists
when the victim was cowed into the mission as a
result thereof, and rendering of resistance is futile.
PP vs Salinas
SC said there are no half measures or even
quarter measures nor is there gravity
graduated by inches of entry. Partial penile
penetration is as good as penetration in itself,
rape is consummated.
SC said in this case, in a manner of speaking,
bombardment of the draw bridge is invasion
Is it necessary that the victim put up physical

resistance? (Shouts) NO. Just like my client who did
not put up physical resistance because her uncle
threatened that he will kill her brother, etc.
t is also NOT necessary that the offender inflict
bruises or physical injuries. Why? Because proof of
71
Criminal Law II TSN

2nd Exam Coverage
enough even if the crooks do not succeed in

entering the castle.
touching should be understood here as inherently

part of the entry of the penis into the labia of the
female organ and not mere touching alone of the
mons pubis or the pudendum.
Penile penetration assumes that there is erection. If

there is no erection, rape cannot be in the form of
consummated but probably
attempted.
Old age (82 yrs old) does not fully justify
failure to erect. Probably of you suffer from
an illness preventing you to copulate, that
may be a possible defense.
Jurisprudence dictates that the labia majora must be

entered for rape to be consummated, and not merely
for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female
organ or touching the mons pubis of the pudendum
is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of
the female organ, by the penis, there can be no
consummated rape; at most, it can only be
attempted rape, if not acts of lasciviousness. Never
frustrated because of the ruling decided in the case
of People v. Orita (cited in the book)
When the offended party is deprived of reason or is

otherwise unconscious;
Meaning, the woman has no wit. Example,
insane or feebleminded person.
Deprivation need not be complete as mere
mental abnormality is sufficient to constitute
the crime of rape.
Is knowledge of the condition of the womans
insanity required?
Incestuous rape was coined in Supreme Court

decisions. It refers to rape committed by an
ascendant of the offended woman. In such cases,
the force and intimidation need not be of such nature
as would be required in rape cases had the accused
been a stranger.
PP vs Intal 126 scra 501 also PP vs Isip Jr 188 scra

648
Woman was under the influence of
anesthesia, and she was under this condition
when she was attacked. The woman admitted
that she knew what was happening to her,
only that she cannot move.
Defense: No rape because she was conscious
yet she did not do anything.
SC said that if the womans wit is affected by
anesthesia, then, the copulation therefore is
without her consent though she may be more
or less conscious. Still, the crime of rape is
committed.
Conversely, the Supreme Court expected that if the

offender is not known to woman, it is necessary that
there be evidence of affirmative resistance put up by
the offended woman. Mere no, no is not enough if
the offender is a stranger, although if the rape is
incestuous, this is enough.
Under Article 266, by the way, how do we distinguish
the crime of attempted rape and acts of
lasciviousness when it boils down to intent to lie with
the offended woman. If the accused has the
intention to lie on the woman, there can be no
attempted rape but merely crime of acts of
lasciviousness.
Pp v. Campuhan decided by the SC March 30, 2000.

The accused here was found guilty of the lower court
of the crime statutory rape and was committed the
extreme penalty of death but it was reviewed by the
SC. The basic issue resolved on whether there is
present and convincing proof that the penis of the
accused is indeed touch the labia and slid in the
female organ of a 4-year old.
For example: Where the accused jumped upon a

woman and threw her to the ground, although the
accused raised her skirts, the accused did not make
any effort to remove her underwear. Instead, he
removed his own underwear and placed himself on
top of the woman and started performing sexual
movements. Thereafter, when he was finished, he
stood up and left.
The Court in resolving the issue,...what was meant of

the phrase mere touching by the penis in the
external genitalia as being sufficient to consummate
the sexual act. For a settled is the rule, in order for a
rape to be consummated, perfect penetration is not
essential; any penetration of the female organ by a
male organ does not consummate the crime of rape.
In other words, entering into the labia or lips of the
female organ, even without rupture of the hymen or
laceration of a vagina is sufficient to warrant
conviction for consummated rape. Now, the act of
Is this a crime of attempted rape? No. The crime

committed is only acts of lasciviousness and not
attempted rape. The fact that he did not remove the
underwear of the victim indicates that he does not
have a real intention to effect a penetration. It was
only to satisfy a lewd design.
When the offended party is under 12 yrs of age or is
demented, this is what we call statutory rape.
72
Criminal Law II TSN

2nd Exam Coverage
Elements:
1. That the offender had carnal knowledge of
the woman.
2. Such act was committed when the victim is
under 12 years of age.
This is what happened to Romeo Jalosjos (who was
already pardoned or under parole?).
People v. Jalosjos:
Ynares-santiago said: this court has declared
that the state policy on the heinous offense of
rape
is
despicable.
Under
certain
circumstances, some of them present in this
case, the offender may be subjected to a long
period of confinement or he may suffer again.
The crime is an assault in human diginity.
Nobody in the system worthy of a name can
afford
to
experience
the
traumatic
consequences of the unfortunate victim.
She said that very particularly, one
figuratively strips the bottom of the barrel of
moral depravity when it is committed
especially against a minor.
In view of the intrinsic nature of the crime of
rape, when only two persons are usually
involved, thats the main reason why the
court is very cautious in receiving the
testimony of the private complainant.
In this case of Jalosjos, the victim of rape is a
minor below 12 yrs of age. As narrated by
her, the detail of the rape is repulsive. The
victim was peddled for commercial sex by her
own guardian whom he treated as her foster
father. Because the complainant was a willing
victim, the acts of rape were proceeded upon
as several acts of lasciviousness.
You know, what happened here no, it
saddened the court because during the time
that this case was filed in court, he ran for
congressman again!
Statury rape committed by a distinguished
congressman against an 11 year old minor is
bound to attract widespread media and public
attention. That is why, if you read the history,
he was perceived to be demonized but there
was already public trial.
SC said in this case, in statutory rape, mere
sexual congress with a woman below 12 yrs
of age consummates the crime of statutory
rape, regardless of her consent to the act or
lack of it. You know what the girl did? Shes
only 11 yrs old, she was brought to the condo
where Jalosjos was staying. Everytime she is
brought there, there would be acts of
cuddling the girl, etc and at some point there
was intercourse. And yet, despite the fact that
the victim said to the guardian that lain lagi,
dili na ko diri, the guardian/bugaw would say
cge lang, dira lang ka. And everytime

Jalosjos would do that, he would give them
thousands. So when the time comes when
she can no longer contain it, she ran away
and was brought to DSWD. That was time
when the case was filed. Jalosjos contended
that there was consent. Although initially he
told an alibi. So you read it for yourself.
The law presumes that a woman of tender
age does not possess discernement and is
incapable of giving intelligent consent to the
sexual act. Thus, it was HELD, that carnal
knowledge of the child below 12 years old,
even if she is engaged in prostitution, is still
considered statutory rape. The application of
force and intimidation or the deprivation of
the reason of the victim becomes irrelevant.
The absence of struggle or outcry of the
victim or even her passive submission to the
sexual act will not mitigate nor absolve the
accused from any liability.
Take note in the case of People v. Romeo Jalosjos: it

is all about statutory, now we can now distinguish
when do we have statutory
rape, or we have statutory rape.
SC said in statutory rape, mere sexual congress with
a woman below twelve years of age consummates
the crime of statutory rape
regardless of her consent to the act or lack of it. The
law presumes that a woman of tender age does not
possess discernment and is
incapable of giving intelligent consent to the sexual
act. Thus, it was held that carnal knowledge of a
child below twelve years old even if she is engaged in
prostitution is still considered statutory rape. The
application of force and intimidation or the
deprivation of reason of the victim becomes
irrelevant.
So what if the victim is already over 12 years old?
What is necessary to be shown there?
Where the victim is over 12 years old, it must be
shown that the carnal knowledge with her was
obtained against her will. It is necessary that there
be evidence of some resistance put up by the
offended woman. It is not, however, necessary that
the offended party should exert all her efforts to
prevent the carnal intercourse. It is enough that from
her resistance, it would appear that the carnal
intercourse is against her will. Now, Mere initial
resistance, which does not indicate refusal on the
part of the offended party to the sexual intercourse,
will not be enough to bring about the crime of rape.
Take Note that it has been held that in the crime of
rape, conviction does not require medico-legal
finding of any penetration on the part of the woman.
73
Criminal Law II TSN

2nd Exam Coverage
A medico-legal certificate is not necessary or

indispensable to convict the accused of the crime of
rape. Medico-legal is not an element of the crime, by
the way. Anyway, any medico-legal or medical
certificate to that effect, one may be appreciated is
encourage.
inconsistencies between the testimonies of the wife

and the bother. Trial court convicted accused of 2
counts of rape, talking into account the qualifying
circumstances of the victims minority and relationship
the death penalty was imposed. CA affirmed.
In this case, SC enunciated the rule that the court
shall withhold the real name of the victim-survivor.
The woman or child victim of violence shall use
fictitious initials to represent her name. Even in
violation of RA 9262, the cases of AAA v. BBB. Thats
how important involving the names of the parties to
the case. Likewise, the personal circumstances of the
victim-survivors in the information should not
establish of compromise their due identities as well
as those of their immediate family or household, shall
not be disclosed.
October 10, 2015

The crime of rape does not require testimony of the
victim before a conviction may stand. This is
particularly true if the commission of the rape is such
that the narration of the offended woman would lead
to no other conclusion except that the rape was
committed.
People v. Orita
Talks about frustration in rape. However, as Ive said
last night, this is already abandoned noh.
Again, in relation to the case, we have AM No. 99-706 SC in In re internet webpage of the supreme
court
The acts of touching should be understood as

inherently part of the entry of the penis to the labia.
Thats one of the issues there whether the crime
committed is frustrated or consummated rape. [in
the case of ____]
[A.M. No. 99-7-06-SC July 20, 1999]

RE: INTERNET WEB PAGE OF THE SUPREME
COURT
The main distinction between the crime of attempted

rape and acts of lasciviousness is the intention to lie
with the offended one.
EN BANC
In rape cases, the court must be guided by the

following principles:
Quoted hereunder, for your information, is a

resolution of this Court dated JUL 20, 1999.
Accusation of rape can be made with facility it

is difficult to prove, but more difficult for the
person of the accused, though innocent, to
disprove. In view of the nature of the crime
where only 2 persons are involved the
testimony of the complainant must be
scrutinized.
A.M. No. 99-7-06-SC(Re: Internet Web Page of the

Supreme Court.)
Gentlemen:
The Court Resolved to APPROVE the Internet Web

Page of the Supreme Court designed by the
Management Information Systems Office, this
Court, for reporting in the Internet, which will
function as a clearing house for information
originating from the judicial branch of the
government.
In the case of People v. Melchor Cabalquinto [Sept.

19 2006], this is the time the SC ruled that in rape
cases we do not anymore place the name of the
victim in our decision. Instead, the name will be
represented by letters AAA.
The Supreme Court Web Page contains the

following informations:
1. History of the Supreme Court of the Philippines
2. The list of incumbent Supreme Court Justices
F: Cabalquinto was charged for having raped his then

8 year old daughter AAA on 2 occasions. He denied
the charge and the case was filed against him where
the___ of frequent quarrels with the wife and his
brother. He claimed that there were material
3. The list of former Supreme Court Justices

4. The organizational structures of the Judiciary
and of the Supreme Court
74
Criminal Law II TSN

2nd Exam Coverage
of another person. What Billy did was he sucked the

private organ of Raul.
5. The Supreme Court Jurisprudence

6. Authorities promulgated by the Court, i.e. Rules
of Court and Circulars and Orders
Problem: Raul thrusted a piece of wood into the anal

orifice of Rosa. The latter suffered injuries. Raul was
motivated by hate or anger. Is Raul liable for rape?
7. Bar Matters
8. News and Information.
Held: No. Rauls act was not motivated by sexual

satisfaction or lewd designs. In fact, the act was
done because of hate or anger. The crime of rape
has remained a crime mala in se and intent is still
essential in proving the crime. So even if there is
something inserted, but the motive is not lewd
design, then the crime of rape is not committed by
sexual assault.
The mother of a child of the victim in the case

expressed anxiety over posting the full text decision
of the SC in child sexual abuse cases on its internet
web page. She submitted that confidentiality and
best interest of the child must prevail over access to
information. *story*
We go to the 2nd way of committing the crime of
rape:
Now lets go to marital rape. Can a man be guilty for

raping his own wife? Some would say no, because
from the time a woman marries her husband,
consent has already be given [kada adlaw sex].
Other authors believe that the crime committed is
grave coercion because he compels his wife to do
something against her will. There can be no rape
there because consent to have sex with the husband
has already been given when the woman marries her
husband. Some authors would say that marital rape
can be committed when the nature of the rape is
that of sexual assault. The husband ___ forces his
wife by force or intimidation by having oral or anal
sex with his wife in relation to 266-A.
"2) By any person who, under any of the

circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting
his penis into another person's mouth or anal
orifice, or any instrument or object, into the genital
or anal orifice of another person.
It can be committed by either a man or a woman.
How committed? By a man having oral sex with a
woman provided it was committed under the
circumstances in par. 1:
c) By means of fraudulent machination or
grave abuse of authority;
d) When the offended party is under 12 yrs of
age or is demented, even though none of the
circumstances mentioned above be present.
Now that has been a thing of the past because the

court finally decided the case of People v. Jumawan.
April 21, 2014.
F: A and B are married. They have 2 children all girls.
Their marriage was doing well, however, B became
brutal in the marriage. One night after A changed
into her duster and fixed their matrimonial bed
[sorry, I do not understand, basta ang point is wala
nagtupad si wife kay husband]. So the husband
asked her, nganong dira man, tupad ta diri. A
reasoned that she had an headache and abdominal
pain for her forthcoming menstruation. Angered, the
husband with physical violence forced himself to A.
Their commotion inside the bedroom was heard by
their children who were staying at the adjacent
room. Despite the wifes plea, the husband continued
his advances. The children vigorously knocked on the
door and asked what was happening because their
Problem: Raul went home very tired one night. He

went to bed and after a while fell asleep. He was
roused from sleep when he felt something strange.
When he opened his eyes, he saw Billy, his gay
neighbour sucking his private organ. Raul kicked
Billy. Is Billy liable under the 2nd way of committing
rape?
Held: No. Billy did not insert anything into the genital
of Raul. What the law punishes is inserting his penis
into another person's mouth or anal orifice, or any
instrument or object, into the genital or anal orifice
75
Criminal Law II TSN

2nd Exam Coverage
This was supplanted by the marital unity theory,

which espoused a similar concept. Upon marrying,
the woman becomes one with her husband. She had
no right to make a contract, sue another, own
personal property or write a will.91
mother was crying. They rescued their mother and

brought her to the other room.
On the following night, A stayed in her childrens
room and refused to go to their bedroom. This
enraged the husband. The husband lifted the wife
from the bed and carried her out. The wife defied it
but the husband tore her short pants in the presence
of their children and said even in front of you, I can
have sex with your mother. [maskig na sa inyong
atubangan, iyoton nako inyong mama] The husband
forcible pulled the wifes short pants and panties.
Wife begged dont do that to me my body is still
aching. *story story*
In the 17th century, Sir Matthew Hale (Hale), a Chief

Justice in England, conceived the irrevocable implied
consent theory that would later on emerge as the
marital exemption rule in rape. He stated that:
[T]he husband cannot be guilty of a rape
committed by himself upon his lawful wife, for
by their mutual matrimonial consent and
contract the wife hath given up herself in this
kind unto her husband, which she cannot
retract.9
The wife field 2 counts of rape against the husband,

and her witnesses are her own 2 daughters. The RTC
convicted the accused and sentence him to RP for
the 2 counts. So the accused contended that the
incidents of sexual intercourse which gave rise to
rape was theoretically consensual, obligatory even
because they were married and cohabiting. He
argues that consent of copulation is presumed
between a cohabiting husband and wife unless the
contrary is proved. He claims that his case should be
treated differently from ordinary rape cases under
the standards for determining presence of consent
must be adjusted on the ground that sexual
community? is a mutual drive? and obligation
between husband and wife.
Interestingly, no documented case on marital rape

has ever reached this Court until now. It appears,
however, that the old provisions of rape under Article
335 of the RPC adhered to Hales irrevocable implied
consent theory, albeit in a limited form. According to
Chief Justice Ramon C. Aquino,104 a
husband may not be guilty of rape under Article 335
of Act No. 3815 but, in case there is legal separation,
the husband should be held guilty of rape if he forces
his wife to submit to sexual
intercourse.105
Held: [note: wala nako gifollow ang discussion ni

judge, gi-butang nako ang important parts
mentioned and not mentioned. Read full text kay
doctrinal ang case]
In 1981, the Philippines joined 180 countries in

ratifying the United Nations Convention on the
Elimination of all Forms of Discrimination Against
Women (UNCEDAW).106 Hailed as the first
international womens bill of rights, the CEDAW is the
first major instrument that contains a ban on all
forms of discrimination against women. The
Philippines assumed the role of promoting gender
equality and womens empowerment as a vital
element in addressing global concerns.107 The
country also committed, among others, to condemn
discrimination against women in all its forms, and
agreed
Theories of Rape:
Under the chattel theory prevalent during the 6th
century, a woman was the property of her father
until she marries to become the property of her
husband.87 If a man abducted an unmarried woman,
he had to pay the owner, and later buy her from the
owner; buying and marrying a wife were
synonymous.88
From the 11th century to the 16th century, a woman
lost her identity upon marriage and the law denied
her political power and status under the feudal
doctrine of coverture.89 A husband had the right to
chastise his wife and beat her if she misbehaved,
allowing him to bring order within the family.90
to pursue, by all appropriate means and without

delay, a policy of eliminating discrimination against
women
In the case at bar:
76
Criminal Law II TSN

2nd Exam Coverage
The crux of the accusedappellants plea for acquittal

mirrors the irrevocable implied consent theory. In his
appeal brief before the CA, he posits that the two
incidents of sexual intercourse, which gave rise to
the criminal charges for rape, were theoretically
consensual, obligatory even, because he and
subsequent to the CEDAW. The Declaration, in

enumerating the forms of genderbased violence
that
constitute acts of discrimination against women,
identified marital rape as a species of sexual
violence
the victim, KKK, were a legally married and

cohabiting couple. He argues that consent to
copulation is presumed between cohabiting husband
and wife unless the contrary is proved.
Clearly, it is now acknowledged that rape, as a form

of sexual violence, exists within marriage. A man who
penetrates her wife without her consent or against
her will commits sexual violence upon her, and the
Philippines, as a State Party to the CEDAW and its
accompanying Declaration, defines and penalizes the
act as rape under R.A. No. 8353.
The accusedappellant further claims that this case

should be viewed and treated differently from
ordinary rape cases and that the standards for
determining the presence of consent or lack thereof
must be adjusted on the ground that sexual
community is a mutual right and obligation between
husband and wife.116
A woman is no longer the chattelantiquated

practices labeled her to be. A husband who has
sexual intercourse with his wife is not merely using a
property, he is fulfilling a marital consortium with a
fellow human being with dignity equal120 to that he
accords himself. He cannot be permitted to violate
this dignity by coercing her to engage in a sexual act
without her full and free consent. Surely, the
Philippines cannot renege on its international
commitments and accommodate conservative yet
irrational notions on marital activities121 that have
lost their relevance in a progressive society.
The contentions failed to muster legal and rational

merit.
The ancient customs and ideologies from which the
irrevocable implied consent theory evolved have
already been superseded by modern global principles
on the equality of rights between men and women
and respect for human dignity established in various
international conventions, such as the CEDAW. The
Philippines, as State Party to the CEDAW, recognized
that a change in the traditional role of men as well as
the role of women in society and in the family is
needed to achieve full equality between them.
Accordingly, the country vowed to take all
appropriate measures to modify the social and
cultural patterns of conduct of men and women, with
a view to achieving the elimination of prejudices,
customs and all other practices which are based on
the idea of the inferiority or the
It is true that the Family Code,122 obligates the

spouses to love one another but this rule sanctions
affection and sexual intimacy, as expressions of love,
that are both spontaneous and mutual123 and not
the kind which is unilaterally exacted by force or
coercion.
Further, the delicate and reverent nature of sexual
intimacy between a husband and wife excludes
cruelty and coercion. Sexual intimacy brings spouses
wholeness and oneness. It is a gift and a
participation in the mystery of creation. It is a deep
sense of spiritual communion. It is a function which
enlivens the hope of procreation and ensures the
continuation of family relations. It is an expressive
interest in each others feelings at a time it is needed
by the other and it can go a long way in deepening
marital relationship.124 When it is egoistically utilized
to despoil marital union in order to advance a
felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty
purpose, vindicate justice and protect our laws and
State policies. Besides, a husband who feels
aggrieved by his indifferent or uninterested wifes
superiority of either of the sexes or on stereotyped

roles for men and women.117 One of such measures
is R.A. No 8353 insofar as it eradicated the archaic
notion that marital rape cannot exist because a
husband has absolute proprietary rights over his
wifes body and thus her consent to every act of
sexual intimacy with him is always obligatory or at
least, presumed.
Another important international instrument on
gender equality is the UN Declaration on the
Elimination of Violence Against Women, which was
promulgated118 by the UN General Assembly
77
Criminal Law II TSN

2nd Exam Coverage
absolute refusal to engage in sexual intimacy may

legally seek the courts intervention to declare her
psychologically incapacitated to fulfill an essential
marital obligation.125 But he cannot and should not
demand sexual intimacy from her coercively or
violently.
the clear State policy expressly legislated in Section

266A of the Revised Penal Code (RPC), as amended
by Republic Act (R.A.) No. 8353 or the AntiRape
Law of 1997.
Marital rape does exist because its provided for
under:
"Article 266-C. Effect of Pardon. - The subsequent
valid marriage between the offended party shall
extinguish the criminal action or the penalty
imposed.
Moreover, to treat marital rape cases differently from

nonmarital rape cases in terms of the elements that
constitute the crime and in the rules for their proof,
infringes on the equal protection clause. The
Constitutional right to equal protection of the
laws126 ordains that similar subjects should not be
treated differently, so as to give undue favor to some
and unjustly discriminate against others; no person
or class of persons shall be denied the same
protection of laws, which is enjoyed, by other
persons or other classes in like circumstances.127
"In case it is the legal husband who is the offender,

the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not
be extinguished or the penalty shall not be abated
if the marriage is void ab initio.
"Article 266-A. Rape: When And How Committed. Rape is committed:
As above discussed, the definition of rape in Section

1 of R.A. No. 8353 pertains to: (a) rape, as
traditionally known; (b) sexual assault; and (c)
marital rape or that where the victim is the
perpetrators own spouse. The single definition for all
three forms of the crime shows that the law does not
distinguish between rape committed in wedlock and
those committed without a marriage.
"1) By a man who shall 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;
Hence, the law affords protection to women raped by

their husband and those raped by any other man
alike.
"c) By means of fraudulent machination or

grave abuse of authority; and
"d) When the offended party is under twelve
(12) years of age or is demented, even though
none of the circumstances mentioned above be
present.
The posture advanced by the accusedappellant

arbitrarily discriminates against married rape victims
over unmarried rape victims because it withholds
from married women raped by their husbands the
penal redress equally granted by law to all rape
victims.
Since section 1 of the law unqualifiedly used the term

man in defining rape, its unmistakable that RA
8353 penalizes the crime without regard to the
rapists relationship with the victim. It may include
the husband.
Among the duties assumed by the husband are his

duties to love, cherish and protect his wife, to ive her
a home, to provide her with the comforts and the
necessities of life within his means, to treat her
kindly and not cruelly or inhumanely. He is bound to
honor her x x x; it is his duty not only to
Lets go to another point:

Rogelio and Sanita are husband and wife. One day R
forced himself on his wife. During the pendency of
the case, R asked pardon from his wife, S pardoned
him. What happens to the case?
maintain and support her, but also to protect her

from oppression and wrong.
Husbands do not have property rights over their
wives bodies. Sexual intercourse, albeit within the
realm of marriage, if not consensual, is rape. This is
Under Article 266-C, the case will be

dismissed. The pardon given by the wife
extinguished the liability of R.
78
Criminal Law II TSN

2nd Exam Coverage
Also, the case of People v. Demetrio 227 S 27.
"Article 266-C. Effect of Pardon. - The subsequent

valid marriage between the offended party shall
extinguish the criminal action or the penalty
imposed.
You wanted to kill A by stabbing her, and so you

killed her. You saw A was still breathing, you raped
her. What crime was committed?
"In case it is the legal husband who is the offender,

the subsequent forgiveness by the wife as the
offended party shall extinguish the criminal action
or the penalty: Provided, That the crime shall not
be extinguished or the penalty shall not be abated
if the marriage is void ab initio.
Not rape with homicide- in rape with

homicide, this presupposes a rape of a
woman after which you kill her.
Crime is murder: rape there is considered as
an aggravating circumstance like ignominy or
disregard to the dignity of the victim.
Now, suppose in the same problem, S pardoned her

husband after a judgment of conviction had been
rendered and that the husband is already serving
sentence. What is the effect of the pardon?
People v. Laog Oct 5 2011

In the evening of 2000, A and her friend J were
walking along rice ___. Suddenly appellant appeared
was holding an ice pick and waited for them in the
grassy area. Without warning, appellant struck A in
the head with a lead pipe causing her to be dizzy and
fell down. J sought for help and was also hit in the
head with a lead pipe and fell down. Appellant
stabbed J several times with the ice pick and
thereafter covered her body with grass. Appellant
then went to A, and hit her in the head several times
with the lead pipe and on the face. While A was in a
defenseless position, appellant raped her. After
raping her, appellant also covered her with grass. At
that point A passed out. When A regained
consciousness, it was night and it was raining hard.
*story* It was found out that J died. Accused was
charged with the following crimes:
The pardon will extinguish the criminal liability

of R and the penalty imposed, under 266-C
Now, lets go to the special complex crime of rape
with homicide
What if 3 persons raped a girl, one after the other.

How many informations should be filed?
Side note: People v. Sanchez [January 25,
1999]: there were 7 informations filed against
Sanchez. Conviction for 7 counts of rape with
homicide
SC: the court found him guilty for 7 x 7 = 49
counts of rape with homicide. There will be as
many crimes of rape with homicide as there
are rapes with homicide committed. The
presence of homicide qualifies the crime of
rape, therefore, by raising the penalty to the
higher degree. Thus, homicide committed by
reason of the rape loses its character as an
independent offense and assumes another
character and function as a qualifying
circumstance. The 7 information filed against
each of the men, each of the 7 successive
rapists complexed by the subsequent slaying
of [name sa girl].
1. In so far as A is concerned, rape

2. In so far as J is concerned, murder
Are the charges correct?
Remember at what point in time was J killed.
SC: No, the charges are incorrect.
The facts established showed that the constitutive
elements of rape with homicide were consummated,
and it is immaterial that the person killed in this case
is someone other than the woman victim of the rape.
Now here, 9 [3x3]. Each of the accused is not

only guilty for the rape that he committed but
also for rapes committed by the other 2. One
could be convicted for 3 times and sentenced
to the appropriate penalty 3 times also.
A was never killed, only J.

An analogy may be drawn from our rulings in cases
of robbery with homicide, where the component acts
79
Criminal Law II TSN

2nd Exam Coverage
of homicide, physical injuries and other offenses have

been committed by reason or on the occasion of
robbery.
So what's the correct charge? The correct charge is
only be for rape with homicide.
80

Crim Ii

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Crim Ii

Uploaded by

Copyright:

Available Formats

Criminal Law II TSN

Take a look at what are included in the Crimes

Art. 196. Importation, sale and possession of

(a) The penalty of arresto mayor or a fine not

Any person who shall knowingly and with

1. Any person other than those referred to in

Why is Gambling is made a crime? The purpose is to

2. Any person who shall knowingly permit any

Article 197. Betting in Sports Contests. This has been

(b) The penalty of prision correccional in its

Criminal Law II TSN

So generally if you are betting in a basketball game

within any other article of this Code.

Art. 198. Illegal betting on horse race. Art. 199.

From Paras: Grave Scandal consists of acts which are

PD 1602 Simplifying And Providing Stiffer Penalties

It is suggested that the crime of grave scandal is a

Take a look at definition of Gambling. Gambling is a

Take note ha, the act must be those that constitute

In my experience as a trial court judge, there is one

All the requisites must conform.

Lets proceed with Crimes Against Decency and Good

Remember the crime must be performed publicly. If

1. Grave Scandal (Art 200)

Any act which is notoriously offensive to decency

Criminal Law II TSN

Distinction must be made as to what place the act

private room because it is still open to the public

Public Place: the criminal liability arises

1. What crime did Pia commit?

Private Place: When the act offensive to

2. What crime if any did the business executives

The business executives did not commit any

Illustration 1: Man and woman enters movie house

If it was against the will of the woman, Acts

201. Immoral doctrines, obscene

Illustration 2: a man and a woman went to Luneta,

fine ranging from six thousand to twelve

Just like what happened in Buhangin. Our Lumad

Criminal Law II TSN

with the stage dimly lighted where a woman, Virginia

religion; (4) tend to abet traffic in and use

I believe some of you have not yet entered a floor

What are the acts punished under Art 201? [see

The accused had nothing on except nylon patches to

Now who are the persons liable here?

SC said yes the accused has exhibited immoral and

Illustration: Vina Theater exhibited pornographic

The object of the law is to protect the morals of the

Another: Jacques publication published magazines of

But take a look fast forward muna, what if it was an

What is the test of obscenity? Obscenity means

So its more on the reaction test on the audience.

PP v Aparrici: Detectives A and B accompanied by

Now the other act which is being prohibited here in

Criminal Law II TSN

or proclaim doctrines openly contrary to public

(ee) other analogous visual depiction; or

Now remember, the authors of obscene

Such representation includes audio recordings and

Now if you draw erotic pictures or write erotic stories

In relation to that we have RA 9775 AN ACT

(aa) the sexual organ or the anal region, or a