Prosec Notes 2020

2020
CRIMINAL
LAW
REVIEW
BOOK II
FROM THE LECTURES OF PROSECUTOR VICTORIA C. GARCIA
BDGLR - 1A (2020-21)
Updated By:
Binua | de Roxas | Gopez | Laxamana | Ramos
Faculty of Civil Law – University of Santo Tomas
Updated: 2020
Disclaimer: Errors/mistakes are solely due to the transcribers.
Please use with due diligence and caution.
Also, please refrain from sharing this on any online library.
God bless!
Credits to – Dizon |Manalo| Narvaez | Shyu | Tubio (2017)

CRIMINAL LAW BOOK II 2020
Updated by: BDGLR – 1A (2020-21)
TITLE ONE ⮚ The third element refers to the mode of committing

treason. Treason may be committed by either:
CRIMES AGAINST NATIONAL SECURITY AND THE a. Levies war against the Philippine government,
LAW OF NATIONS (Articles 114 – 122) requires the concurrence of two elements:
1. There must be an actual of assembly of men
ARTICLE 114 – TREASON
2. It is for the purpose of executing or effecting a
Treason is committed by any Filipino citizen or an alien treasonable design by force.
residing in the Philippines who levies war against the
Levying of war means that the said offenders,
Philippine Government or adheres to her enemies by giving
Filipino citizens who are said to be in collaboration
them aid and comfort.
– they connived and conspired with the enemy
ELEMENTS: troops in order to hand over the Philippine
Government to the enemy troops. Absent of that
1. The offender is by birth, a Filipino Citizen or an alien
collaboration, it cannot be considered as treason.
residing in the Philippines.
b. Adheres to the enemies by giving them aid or
The offender can either be:
comfort.
⮚ A Filipino citizen because a Filipino citizen Adherence to the enemies — means that the
owes permanent allegiance to the Philippine Filipino citizen or the offender intentionally,
Government; or intellectually and emotionally favors the enemy.
⮚ A foreigner, even if he is temporarily residing Therefore, adherence to the enemies is an internal
in the Philippines because during his state of mind, it is mental state, you cannot see
temporary stay in the Philippines, he also owes adherence to the enemies.
temporary allegiance to the Philippines since ✰ How now would you know that a person is
he is given protection by the Philippine adhering to the enemy state?
Government under its laws therefore it is but
⮚ It is manifested by his acts of giving aid or
incumbent upon him to have temporary
comfort to the enemy. That is why these
allegiance to the Philippine Government.
two must concur:
2. That there is a war in which the Philippines is involved.
1. Adherence to the enemies
⮚ The second element is that there is a war in which 2. Giving them aid or comfort
the Philippines is involved.
⮚ Mere adherence to the enemies,
⮚ In the case of Laura v. Misa, treason is a war time without any act of giving aid or comfort to
offense. It can be committed only in times of war. the enemy will not bring along
In times of peace, Treason remains to be dormant treason, it is the act of giving aid or
crime, however, the moment when emergency comfort which is the manifestation of the
arises, the moment a war arises, it is immediately adherence to the enemies.
put into effect as an act self-defense and self-
preservation for the Philippine Government. EXAMPLES OF ACTS OF ADHERING TO THE ENEMIES
Treason cannot be committed in times of peace, BY GIVING AID OR COMFORT:
because in times of peace, there are no traitors. a. By giving the enemies information, transportation,
✰ Who are these traitors? arms, supplies, all of these will weaken the defense
⮚ These enemies are troops of the enemy state of the Philippines and strengthen the enemy state.
which is in war with the Philippines. Filipino b. People v. Perez: The court said, "the act of
men like the MILF, NPAs, even if they are at commandeering women or giving women to the
war with the Philippine government, they enemy troops in times of war, to satisfy the lust of
cannot be considered as enemies because they the enemy troops is not considered as a treasonable
are still considered as Filipino citizens. So the act." Because according the Court, whatever benefit
aliens refer to the citizens of the enemy state is given to the enemy is merely trivial in nature,
which is at war with the Philippines. imperceptible and it was not the intent of the
3. That the offender either— offender (unintentionally).
a) Levies war against the Philippine government,
or
b) Adheres to the enemies by giving them aid or
comfort.
BINUA | DE ROXAS | GOPEZ | LAXAMANA | RAMOS (1A 2019-2020)

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⮚ Two-witness rule does not apply

Two ways of proving treason under Article 114:
a. TESTIMONY OF TWO WITNESSES, AT LEAST,
TO THE SAME OVERT ACT, OTHERWISE
KNOWN AS THE "TWO-WITNESS RULE" ARTICLE 116 – MISPRISION OF TREASON
⮚ There must be two witnesses who will prove only on ⮚ Every person owing allegiance to the Government of
the commission by the offender of an overt act the Philippine Islands, without being a foreigner, and
showing that he adheres to the enemy. There must having knowledge of any conspiracy against them,
be two persons who had seen the overt act. conceals or does not disclose and make known the
Therefore, treason cannot be proven by mere same, as soon as possible to the governor or fiscal of
substantial evidence. There must be direct the province, or the mayor or fiscal of the city which
evidence, a witness to this act of giving aid or he resides, as the case may be shall be punished as an
comfort to the enemy. accessory to the crime of treason.
b. CONFESSION OF THE OFFENDER OR THE ⮚ TREASON can be committed both by Filipino citizens
ACCUSED MADE IN AN OPEN COURT and a foreigner temporarily residing in the
⮚ Confession of guilt must be made before a court. It Philippines.
must be judicial confession made in court. Extra- ⮚ MISPRISION OF TREASON can only be committed
judicial confession will not give rise to conviction in by a Filipino citizen who owes permanent allegiance
case of the crime of treason. to the Philippine government. It cannot be committed
Q: What if there is war which the Philippines is involved? X by a foreigner residing in the Philippines.
was among those who committed treason against the Q: What if A, B and C, conspired and agreed to commit
government. Now X in committing treason killed a public treason against the Philippine Government. After their
officer of the government of the Philippines, in furtherance conspiracy and agreement, A went to X. A told his friend X
of his act of treason. Will such act amounting to murder give that he was in conspiracy with B and C to commit treason
rise to a separate and distinct crime? Will you charge him for against the Philippine Government. After A told him such
two crimes based on treason and murder? conspiracy with X, A left. X, despite knowledge of the
A: There is only one crime committed by him conspiracy to commit treason among A, B, and C, did not
and the crime committed is treason. Common disclose such information to the proper authorities. What
crimes such as Murder, physical injuries, homicide, crime/crimes is/are committed by A, B, C, and X?
arson, if they are committed in furtherance to, in A: A, B, and C are liable for conspiracy to
connection with or incidentally to treason shall be commit treason. There is a meeting of two or more
absorbed in the crime of treason because they are persons come to an agreement to commit the crime of
atrocities for war and therefore, they are considered as treason and decide to commit it.There is proposal to
absorbed in the crime of treason. It cannot even be commit treason when a person has decided to commit
complex, they are considered absorbed in the crime of the crime of treason and proposes its execution to some
treason. other person or persons. The moment that other person
ARTICLE 115 – CONSPIRACY AND PROPOSAL TO whom the proposal was given, raise to the commission
COMMIT TREASON of crime, we no longer have proposal, but we have
Conspiracy to commit treason. In the problem, A, B, and
Conspiracy to commit treason – meeting of two or more C, conspired, agreed to commit the crime of treason
persons who come to an agreement to commit treason and against the Philippine government, therefore they are
decide to commit it all liable for conspiracy to commit treason.
Proposal to commit treason – a person has decided to Q: X, who had knowledge of the conspiracy to commit
commit treason and proposes its execution to other person treason among A, B, and C, however, despite that knowledge,
or persons. he did not disclose it to the proper authorities. What is the
⮚ The moment that other person whom the proposal was liability of X?
given, raise to the commission of crime, we no longer A: X is liable for misprision of treason – is
have proposal, but we have Conspiracy to commit committed by any person who owes permanent
treason. allegiance to the Philippine Government who fails to
⮚ Separate and distinct from treason disclose of knowledge to commit treason as soon as

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possible to the proper authorities. In the problem, C, ⮚ So even if he is in possession of the same, but
despite having knowledge of the conspiracy to commit he does not divulge it to any representative of
treason among A, B, and C did not divulge it, did not a foreign nation, the crime will not arise.
disclose it to the proper authorities, therefore, X is liable
for misprision of treason. ■ Espionage can be committed in BOTH times of peace
and in times of war.
ARTICLE 117 – ESPIONAGE

ARTICLE 118 –INCITING TO WAR OR GIVING
TWO WAYS OF COMMITTING ESPIONAGE:
MOTIVES FOR REPRISALS
I. By entering, without authority therefor, a
ELEMENTS:
warship, fort, or naval or military
establishment or reservation to obtain any 1. That the offender performs unlawful or unauthorized
information, plans, photographs or other data acts by the Philippine government.
of a confidential nature, relative to the defense 2. That the said act provokes or gives occasion for a war
of the Philippines involving or liable to involve the Philippines or
⮚ The offender can be any person. He can be a exposes Filipino citizens to reprisals on their persons
Filipino citizen or a foreigner, or he can be a and property while they are in a foreign country.
public officer or employee or a private 3. He is not legally authorized to do so.
individual.
Inciting to war connotes that there is yet no war. It is
✰ When will the crime of espionage arise?
committed in times of peace.
⮚ Under the first mode, the crime of espionage
will arise moment the offender enters the Case of CAPTAIN MENDOZA
warship, fort or naval or military Hostage drama in Luneta. There were Hong Kong
establishment or reservation, without citizens who boarded the bus and here comes Captain
authority if his intention is to obtain any Mendoza who was no longer a member of the military,
information, plans, photographs or other data he entered the bus, with different weapons and
of a confidential nature, relative to the defense grenades and even killed some Hong Kong citizens.
of the Philippines. Captain Mendoza performed unlawful and
⮚ It is not necessary that for the crime to arise unauthorized acts which exposed overseas Filipino
that he is successful in obtaining the data. It is workers in Hong Kong and China to reprisals on their
not necessary that he indeed obtained the data. persons or property. In fact, there was news at that time
The mere act of entering without authority is that Hong Kong or China would be engaging in war with
sufficient if his intention is to obtain the data the Philippines. Hence, one of the crimes that may be
of confidential manner relative to the defense held against Captain Mendoza is inciting to war or
of the Philippines. The law presumes that the giving motives for reprisals.
moment he enters without authority, his
purpose is to obtain confidential information. Q: Some fishermen had this rally in front of the Chinese
He may, however, rebut this presumption. embassy, they were protesting against what the Chinese are
II. By disclosing to the representative of a foreign doing to the Filipino fishermen because they were not
nation the contents of the articles, data or allowed to fish in the PH territory, so they were protesting,
information referred to in paragraph No. 1 of what if in their protest, they burned the effigy of the
art. 117, which he had in his possession by President of China and they burned the flag of China and this
reason of the public office he holds. angered China, so the Chinese government became hostile to
the Filipino citizens living in China, what crime is committed
⮚ This mode of committing espionage can only
by these protesters?
be committed by a public officer who has been
trusted, by reason of his public position, of A: These Filipino citizens who protested against China
articles, data of confidential nature relative to can be charged of Inciting to war and giving
the defense of the Philippines. motives to reprisals, because by reason of their
⮚ The crime of espionage will arise the moment unauthorized acts, this exposed the Filipino citizens to
the offender divulges or discloses the data and reprisals.
information to a representative of a foreign
ARTICLE 119 – VIOLATION OF NEUTRALITY
nation.

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ELEMENTS: The competent authority or the President issued a

declaration of proclamation saying that there should be no
1. The crime is committed when there is a war but the
correspondence to the enemy state. But X missed his penpal,
Philippines is not involved in the said war and;
and so, he wrote in a small piece of paper, "I love you, I miss
2. The competent authority issued a regulation for the
you, muamua!" Is X liable of the crime of correspondence
purpose of enforcing neutrality among Filipino
with the enemy?
citizens and ;
3. The offender violates such regulation imposed. A: X is liable because there was a declaration issued
by a competent authority that correspondence with the
■ Here, there is war but the Philippines is not involved in hostile country is prohibited and if there is no
the said war. declaration, proclamation coming from the competent
authority prohibiting correspondence, the crime will
Q: There is a war between country X and country Y. Here
only arise if the said crime is carried on in ciphers or
comes Pedro, a Filipino citizen, he was siding with country
conventional signs or containing notice or information
X. Is he liable?
which might be useful to the enemy.
A: No, he is not liable of violation of neutrality
ARTICLE 121 – FLIGHT TO ENEMY'S COUNTRY
because in the problem, it did not say that the
competent authority (the President) issued a ELEMENTS:
proclamation or regulation imposing neutrality.
1. That there is a war in which the Philippines is
■ The violation will only arise if there is a proclamation or involved.
regulation imposing neutrality and a Filipino citizen 2. That the offender must be owing allegiance to the
violates such declaration or regulation issued by a Philippine Government
competent authority. Therefore, absence of such 3. That the offender attempts to flee or go to enemy's
declaration of neutrality, the crime of violation of country
neutrality does not arise. 4. That going to the enemy country is prohibited by a
competent authority
ARTICLE 120 – CORRESPONDENCE WITH
⮚ There must be a declaration or a proclamation issued by
HOSTILE COUNTRY
a competent authority, that no Filipino shall flee to the
ELEMENTS: enemy's country and the offender violates such
proclamation.
1.That it is in time of war in which the Philippines is
involved. ⮚ Mere attempt will readily rise to the crime. It is not
2. That the offender makes correspondence with an necessary that the offender has actually gone to the
enemy country or any territory occupied by enemy country.
troops. ⮚ The law says the offender owes allegiance to the
3. That the correspondence is either — Philippines therefore it can be committed by a Filipino
a.) Prohibited by the Philippine Government; or citizen or a foreigner. The law does not require that he
b.) Carried out in ciphers or conventional signs; or owes permanent allegiance to the Government.
c.) Containing notice or information which might be There are four crimes against the law of nations:
useful to the enemy
☝ Here, there is a war in which the Philippines is involved. ⮚ Piracy
■ If there is a declaration issued by a competent authority ⮚ Mutiny
that there shall be no correspondence with the enemy ⮚ Qualified Piracy
country, any kind of correspondence will make the ⮚ Qualified Mutiny
offender criminally liable, no matter how innocent the
correspondence is, but if there is no declaration that ARTICLE 122 – PIRACY
prohibits the same, the crime will only arise if the ELEMENTS:
correspondence is carried out in ciphers or conventional
signs, or if it contains notice or information that will be 1. The vessel is on the high seas or on Philippine waters.
useful to the enemy. ■ The first element is where the vessel is located.
The vessel can either be on the high seas (in
Q: The Philippines is at war with the another country. Here international waters) or on Philippine waters
comes X, a Filipino citizen who he has a pen pal who is a (this was brought about by the amendment of RA
citizen of the country which is at war with the Philippines. 7659). Before the amendment of RA 7659, Piracy

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under Article 122 can only be committed when The offenders are
the vessel is on the high seas. But because of this necessarily inside the vessel,
The offenders are strangers
amendment brought about by RA 7659, Piracy they are either members of
to the vessel
now under Article 122 can be committed when the complement or
the vessel is on Philippine waters. passengers of the vessel
2. The offenders are not members of the complement or
There is no intent to gain
passengers of the vessel.
There is intent to gain because the essence of the
■ The second element provides for the offenders.
because it is similar to crime is to go against the
The offenders must NOT be members of the
robbery lawful authority of the
complement or passengers of the vessel.
commander of the ship.
Therefore, the offenders must be STRANGERS to
the vessel. They must be coming from the
outside, not from the inside.
3. The offenders either: Q: The vessel is on the sea going to Mindoro. So while the
a. The offenders either attack or seize the vessel; ship is on its way to Mindoro, suddenly there comes a big
or storm. The commander or the captain of the ship said that
b. The offenders either seize in whole or in part they should first move towards the shore and let the storm
the cargo, the equipment, or the personal comes calm in order to ensure the safety of the passengers of
belongings of the passengers or members of the vessel. The passengers of the vessel and members of the
the complement. complement didn’t want the decision of the said captain of
■ Based on these elements, you will notice that piracy is the ship and so they seize the captain of the ship and manned
akin to robbery. It is in effect robbery. It is just called the vessel until they reach Mindoro. What crime, if any, is
piracy because the object of the thing is either the vessel committed by these members of the complement and
or the cargo or equipment of the said vessel. There is passengers of the vessel?
also the use of force or intimidation. There is also the A: They are liable of MUTINY. The vessel is on
use of violence against persons. There is also intent to Philippine waters. The offenders are members of the
gain. So it is akin, similar to robbery. complement and they go against the lawful authority of
the captain of the ship. Therefore they are liable of
mutiny.
Q: While a vessel is on Philippine waters, here comes a
ARTICLE 122 –MUTINY second vessel. Four men from the second vessel boarded the
first vessel and at gunpoint, took the cargo and equipment of
ELEMENTS:
the said vessel. Placed them in the second vessel and off they
1. The vessel is either on the high seas or on Philippine went. What crime is committed by these four men?
waters
A: They are liable of PIRACY UNDER ARTICLE
2. The offenders are members of the complement or
122. The vessel is on Philippine waters, the offenders
passengers of the vessel
are not members of the complement or passengers of
3. The offenders raise a commotion or disturbance on
the ship. They seize the cargo and equipment of the
the board the ship against the lawful command of the
vessel. Therefore, it is piracy under Article 122.
captain or the commander of the ship.
■ In mutiny, there is no taking because in mutiny there is Q: The vessel is on Philippine waters. While the vessel is on
no intent to gain. Mutiny is the rising of commotion, a Philippine waters, the members of the complement and
resistance against the lawful command, against the passengers of the said vessel in conspiracy with one another
lawful authority of the commander or captain of the took the cargo and equipment of the said vessel, and then
ship. they boarded a second vessel and off they went. What crime
■ Since in mutiny, there is no intent to gain, mutiny is akin is committed by the members of the complement and
to sedition. The rising of commotion, an uprising, an act passengers of the said vessel?
of dissent against lawful authority.
A: The members of the complement and
PIRACY vs. MUTINY passengers of the vessel committed ACTS OF
PIRACY because they seize in whole or in part the
PIRACY MUTINY
cargo or equipment of the vessel but NOT PIRACY
UNDER ARTICLE 122 because in Article 122, it is a
requisite that the offenders must be strangers to the

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vessel. Here, the offenders are members of the or the passengers of the vessel. They seize in whole or in
complement and passengers of the vessel. So the crime part the cargo and equipment of the said vessel.
committed is PIRACY BUT UNDER PD 532.
Q: While the vessel is on the high seas, members of the
ANTI-PIRACY AND ANTI-ROBBERY LAW OF 1974 complement or passengers of the vessel in conspiracy with
(PD 532) one another took away the cargo and equipment of the
vessel. What crime is committed?
Under PD 532, piracy is committed by attacking or seizing
the vessel or seizing in whole or in part the cargo, equipment ■ It is not piracy under Article 122 because here,
or personal belongings of the members of the complement the offenders are members of the complement
or passengers of the vessel IRRESPECTIVE of the value or passengers of the vessel. In Article 122, it is
thereof, committed by means of force and violence and required that the offenders must be strangers
committed by any person whether he may a member of the to the vessel. It cannot be piracy under PD 532
complement or passenger of the vessel or strangers to the because the vessel must be on Philippine
vessel BUT the vessel is on Philippine waters. Therefore, for waters. In our problem, the vessel is on the
PIRACY UNDER PD 532 to arise, it necessary that the vessel high seas. So, what crime is committed?
is on Philippine waters.If the vessel is on the high seas,
A: Again, piracy is akin to robbery. Since Piracy under
immediately rule out PD 532.
Article 122 and Piracy under PD 532 do not apply, the
HOW COULD YOU KNOW IF IT IS PIRACY UNDER crime committed is ROBBERY IN AN UNINHABITED
PD 532 OR PIRACY UNDER ARTICLE 122 OF RPC? PLACE.
⮚ If the vessel is on Philippine waters, your choice is either Q: The vessel was sailing towards Cebu, when suddenly a
Piracy under PD 532 or Piracy Article 122. motor boat went into the vessel, from the motor boat there
✰ Where lies the difference? were three men X, Y and Z, who were armed with armalites,
⮚ Since Article 122 of RPC is the main law, we they fired at the vessel, so the Captain was forced to stop the
have to reconcile it with PD 532. Or PD 532 vessel, and X, Y, Z boarded the vessel and at gunpoint they
must be reconciled with Article 122. Piracy ordered the members of the crew, as well as the passengers
under PD 532, the offenders can be any to place their pieces of jewelry and cash inside the bags
person. He can be a stranger. He can be provided by them, afraid since armalites are pointed at them
members of the complement. they obeyed as instructed, thereafter X, Y and Z left the
✰ Therefore, where does PD 532 apply? vessel with the loots, what crime/s have been committed by
X,Y and Z?
⮚ It will apply when the offenders are
members of the complement or A: X, Y and Z are liable of piracy under Art. 122, It
passengers of the vessel and the vessel is is not qualified piracy because even if they boarded
on the Philippine waters. the vessel, they did not seize the vessel itself, they only
seized part of the personal belongings of the passengers
Q: The vessel is on Philippine waters, suddenly men from
and members of the complement, hence the crime
the outside committed acts of piracy. What crime is
committed is only piracy. The vessel is on PH waters,
committed?
the offenders are outsiders and they seized in part the
A: Piracy under Article 122 cargo, equipment and personal belongings of the
passengers and members of the complement.
Q: The vessel is on Philippine waters. Acts of piracy were
committed by the members of the complement or Q: Let’s add facts to the previous problem, let us say that
passengers of the vessel. What crime is committed? while X, Y and Z were ordering passengers and members of
A: Piracy under PD 532 the complement to place their cash and pieces of jewelry
inside the bags that they have provided, W, who was then
Q: What if the vessel is on the high seas? While the vessel is wearing a very precious valuable necklace tried to hide it
on the high seas, there comes a second vessel. Four men because such necklace costs millions, he tried to hide it by
from the second vessel boarded the first vessel and at means of his jacket, but it is too late X, Y and Z already saw
gunpoint took the cargo and equipment of the first vessel. such necklace and told W to remove it and hand it to them,
What crime is committed by these four men? but W refused, so X, Y and Z encircled W and ganged up on
A: Piracy under Article 122. The vessel is on the high him, they hit him several times with the bat of their
seas. The offenders are not members of the complement armalites, when he was already bleeding they forcibly took

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his necklace and together with the other loots, they left. not bring about a separate and distinct
What crime/s are committed by X, Y and Z? crime or a separate and distinct charge
of murder, homicide, physical injuries
A: From Piracy, it is now QUALIFIED PIRACY
or rape. These crimes are absorbed
because the act of piracy is now accompanied by
because they are circumstances which
infliction of physical injuries on one of the
will qualify the penalty to death.
passengers, by the name of W. Since physical injuries
■ These circumstances are separate and distinct from
accompanied the commission of piracy it is now
each other. It is not necessary that all of them must be
qualified piracy.
present. The presence of one will qualify piracy. Notice
the conjunction OR. These are qualifying circumstances
which are prejudicial to the accused therefore they must
Q: what if the vessel is sailing to Masbate, 5 members of the
be strictly construed.
crew and 5 members of the passengers connived with one
another to take part of the cargo and part of the equipment Q: What if the vessel is on Philippine waters, and there
of the said vessel, hence when the vessel reached the sea comes a second vessel? Four men from the second vessel
shores of Masbate, they already enforced their plan, they boarded the first vessel and at gunpoint, they asked the
took part of the cargo and equipment, however they were passengers to give to them all their valuables. One woman
arrested, what crimes have been committed by them? didn’t want to give her wedding ring because it was so
precious to her and so one of the men forcibly took the
A: They are not liable under Art. 122 because the second
wedding ring from the finger such that the finger was
element of piracy is absent – that the offenders must not
severed from it. What crime is committed?
be members of the complement and passengers of the
vessel, based on the facts of the case, they are 5 A: QUALIFIED PIRACY because piracy was
passengers and 5 members of the complement, accompanied by physical injuries.
therefore Art. 122 will not be applicable. The crime
Q: What if in the same problem, the woman didn’t want to
committed is piracy under PD 532, wherein piracy
give the ring so one of the men slapped the woman on the
can be committed by any person, provided that the
face three times and the face of the woman became reddish?
vessel is within Philippine waters.
She suffered slight physical injuries. What about the fact that
the injury suffered was only slight?
ARTICLE 123 – QUALIFIED PIRACY A: It will not make a difference although the injury
suffered was only slight. In the third circumstance
✰ What are the circumstances which will qualify piracy? which will qualify piracy, the word “physical injuries” is
⮚ Under Article 122, the following circumstances will used in its generic sense. Therefore, whatever be the
qualify piracy: kind of physical injuries, whether serious or slight for as
1. Whenever the offender have seized a vessel by long as it was accompanied by piracy, it will be
boarding or firing upon the same; or considered as qualified piracy.
⮚ It is necessary that the vessel itself must
be seized by boarding or firing upon the Q: What if in the same problem, the woman didn’t want to
same. Notwithstanding this act of give the ring and one of the men touched the private parts of
boarding or firing, if only the cargo, the said woman and after touching the private parts of the
equipment, or personal belongings said woman with lust, he forcibly took the ring. What crime
inside the vessel were seized, it is not is committed by the said men?
qualified piracy but only a simply piracy A: All of them will be liable for piracy. However, the
because the law specifies that it is the man who touched the private part of the woman will be
vessel that must be seized to qualify liable for two crimes: piracy and acts of lasciviousness.
piracy. Acts of lasciviousness is not mentioned in Article 123.
2. Whenever the offenders have aband0ned their Therefore, its presence will not qualify piracy. It will
victims without means of saving themselves; bring about a separate and distinct charge of acts of
or lasciviousness.
⮚ There is intent to kill.
3. Whenever the crime is accompanied by ⮚ So, only these four crimes (murder, homicide,
murder, homicide, physical injuries, or rape. physical injuries and rape) will qualify piracy. If
other crime is committed and accompanied by
⮚ Whenever these four crimes
piracy and is not among these four crimes
accompanied the act of piracy, it will

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mentioned in Article 123, it will bring about a A: The charge is wrong.

separate and distinct charge.
Insofar as X and Y are concerned, as in the previous
QUALIFIED MUTINY problem, they are liable for simple piracy.
What are the circumstances which will qualify With respect to W, he cannot be held liable for qualified
mutiny? piracy. Only the first element is present. He is an
insider, not a stranger to the vessel, he also has no intent
⮚ In Article 123, there is no specific mention of to attack or seize the vessel or to take the cargo or
qualified mutiny, however according to Reyes and equipment or personal belongings of the passengers or
other legal luminaries, of the three circumstances members of the complement, his intention was to kill an
stated in Article 123, paragraphs 2 and 3 are enemy, to settle a grudge and therefore he cannot be
considered as circumstances which will qualify held liable for qualified piracy.
mutiny. That is:
1. whenever the offenders have abandoned Q: In the same problem, X and Y were convicted of Piracy
their victims without means of saving and then W was acquitted because the crime charge is
themselves; or qualified piracy and he cannot be held to be liable of such
2. whenever the crime is accompanied with crime and he cannot also be held liable for murder – a crime
murder, homicide, physical injuries, or different to what was charged. The prosecution filed a
rape motion for reconsideration saying that they should all be
⮚ According to Reyes and other legal held liable for qualified piracy because of the third qualifying
luminaries, only these two are considered circumstance and the act of piracy was accompanied with
qualified in mutiny because in mutiny, the murder committed by W against B and since murder was
offenders are necessarily, ordinarily committed by reason or on the occasion of the said piracy,
inside the vessel because they are therefore they should all be liable for qualified piracy. Is the
members of the complement or contention correct?
passengers of the vessel. A: The contention is wrong. This is not a special
Q: The vessel was on Philippine waters sailing toward complex crime and therefore it is necessary that the said
Mindoro. A water boat went near the vessel. Two armed men murder, homicide, physical injuries, or rape must be
fired at the vessel and thereafter climbed the same. At committed by the actual perpetrators of piracy. These
gunpoint, they took some of the cargoes and personal are not crimes by themselves but circumstances which
belongings of the passengers and members of the vessel and will qualify the penalty. Whenever any of these four
off, they left. What crime had been committed by these two circumstances is present, they are absorbed because
armed men? they are qualifying circumstances. They are not separate
and distinct crime which will bring about a special
A: Piracy. First, the vessel is on Philippine waters. complex crime.
Second, they are not members of the vessel neither are
they the passengers. Third, they seized whole or in part ANTI-HIJACKING LAW (R.A. No. 6235 otherwise
the cargo and personal belongings of the passengers known as An Act Prohibiting Certain Acts inimical
inside the vessel. All the elements of piracy under Article to Civil Aviation)
122 are present. Under RA 6235, there are four prohibited acts.
It is not qualified piracy because even if there was 1. By compelling the pilot of an aircraft of Philippine
boarding and firing, it is not the vessel that was seized registry to change its course or destination OR by
but only the personal belongings of the passengers and seizing or usurping control thereof while it is in
cargoes inside the vessel. flight
Q: In the same problem, these two men, X and Y, entered
the same vessel and at gunpoint, they were able to take the 2. By compelling an aircraft of foreign registry to land
personal belongings of the members of the complement and in Philippine territory OR by seizing or usurping
the passengers of the vessel, another passenger inside the control thereof while the same is in Philippine
vessel, W, took the commotion as an opportunity to settle the territory
grudge against a fellow passenger, B. While the people were HOW COULD YOU DISTINGUISH THE FIRST ACT
afraid of X and Y, W went to the cabin of B and there he FROM THE SECOND ACT?
repeatedly stabbed to death B. All were arrested and charged
with Qualified Piracy. Is the charge correct?

8|
⮚ If the aircraft is of Philippine registry, the seizure or Philippines materials or substances which are
usurpation to amount in violation of RA 6235, explosive, flammable, corrosive or poisonous in a
requires that the aircraft must be in flight. An manner not in accordance with the rules and
aircraft is in flight the moment all its external doors regulations of the Air Transportation Office
had been closed, following embarkation until any of
HOW WOULD YOU DISTINGUISH THE 3RD FROM
it external doors had been opened for purposes of
THE 4TH ACT?
disembarkation.
⮚ On the other hand, if the aircraft is of foreign ⮚ If the aircraft is a PASSENGER AIRCRAFT, the
registry, the seizure or usurpation did not need mere act of carrying or loading explosive,
while it is in flight. For as long as the aircraft of flammable, corrosive or poisonous substances will
foreign registry is within the Philippine territory, immediately constitute a violation of RA 6235.
seizure or usurpation thereof will bring about ⮚ If however the aircraft is a CARGO AIRCRAFT, the
violation of RA 6235 even if all its doors are loading of these poisonous substances, flammable
opened; even if it is not in flight. substances, is allowed because it is a cargo aircraft.
⮚ Insofar as these two prohibited acts are concerned, The crime will only arise if such act of loading is not
what are the circumstances which will qualify the in accordance with the rules and regulations of the
penalty? Air Transportation Office.
⮚ Under RA 6235, the following HUMAN SECURITY ACT OF 2007
circumstances will qualify the first two
acts: (R.A. No. 9372)
a. By firing upon the pilot or the Q: What if there is a bus and the bus is parked at Luneta Park
member of the crew or passenger of and it was full of children. And here comes X, X had different
the aircraft; or kinds of explosive all over his body. And at gunpoint, entered
b. By exploding or attempting to the said bus and told the children to keep quiet. Thereafter,
explode by means of a bomb or there is a cartolina on the glass window of the said bus.
explosive for purposes of destroying Written on the cartolina were his demands to the
the aircraft; or government. His demands were first, that his brother, a
c. Whenever the crime is accompanied member of NPA and who is being incarcerated by the
by murder, homicide, serious military be released and his second demand, was that funds
physical injuries, or rape be transferred to his account. So these were the demands
made by X against the government. Because of this, the
⮚ NOTE: In case of piracy, the law uses the parents of the children arrived, the media arrived, all the
word “physical injuries” in its generic cabinet secretaries arrived. Only the president did not arrive.
sense. Whatever be the kind of physical So everybody was there. They were afraid that the children
injury that will accompany piracy, the might die so there was chaos in the entire Philippines. It took
crime committed is qualified piracy. the members of the military and police 12 hours to subdue
But in case of hijacking under RA X. So after 12 hours, they were able to arrest X. What crime,
6235, the law is specific; it must be if any, may be filed against X?
serious physical injuries. Therefore, if
the physical injuries that would A: X will be charged of the crime of terrorism
accompany the act of usurpation and under RA 9372, the Human Security Act of 2007.
seizure of the aircraft would only be less Under Section 3 of Ra 9372, terrorism is committed
serious physical injuries or slight physical when the offender commits any of the following acts
injuries, the penalty is not qualified. The punishable under the RPC:
penalty is qualified because from the a. Piracy
penalty of 12 to 20 years, it would become b. Rebellion
15 years to death. c. Coup d’Etat
3. By carrying or loading on board a PASSENGER d. Murder
AIRCRAFT operating as a public utility in the e. Kidnapping and Serious Illegal
Philippines materials or substances which are Detention
explosive, flammable, corrosive or poisonous f. Crimes involving Destruction
4. By shipping, carrying or loading on board a CARGO
AIRCRAFT operating as a public utility in the

9|
If the offender commits any of these acts punishable under Since he is acquitted of terrorism under RA 9372, can he still
the RPC or any of the following acts punishable under special be prosecuted for his predicate crime of kidnapping and
penal laws: illegal detention because he detained the children for more
than 12 hours? Can he still be prosecuted for Illegal and
a. Article 122 (Piracy in General and Mutiny in the
Unlawful Possession of Firearms, Ammunitions or
High Seas or in the Philippine Waters);
Explosives because he was full of firearms and ammunitions
b. Article 134 (Rebellion or Insurrection);
and explosives?
c. Article 134-a (Coup d’Etat), including acts
committed by private persons; A: No more.
d. Article 248 (Murder);
Because of Section 49 of RA 9372. Under Section
e. Article 267 (Kidnapping and Serious Illegal
49 of RA 9372, whenever a person has been charged of
Detention);
terrorism, or any act punishable under RA 9372, based
f. Article 324 (Crimes Involving Destruction),
on the valid complaint or information, sufficient
or under information and substance to bring about and
thereafter he is acquitted or the case is dismissed, he can
a) Presidential Decree No. 1613 (The Law on Arson);
no longer be subsequently prosecuted for any other
b) Republic Act No. 6969 (Toxic Substances and
felony or offense necessarily included in the crime
Hazardous and Nuclear Waste Control Act of
charged. The crime of kidnapping and serious illegal
1990);
detention is necessarily included in terrorism because it
c) Republic Act No. 5207, (Atomic Energy
is one of the predicate crimes. Likewise, violation of PD
Regulatory and Liability Act of 1968);
1866, as amended Illegal and Unlawful Possession of
d) Republic Act No. 6235 (Anti-Hijacking Law);
Firearms is also necessarily included in terrorism
e) Presidential Decree No. 532 (Anti-piracy and Anti-
because it is one of the predicated crimes in terrorism.
highway Robbery Law of 1974); and,
Or any of these predicated crimes, he can no longer be
f) Presidential Decree No. 1866, as amended (Decree
charged because they are necessarily included in
Codifying the Laws on Illegal and Unlawful
terrorism. This is known as the ABSORPTION
Possession, Manufacture, Dealing in, Acquisition
PRINCIPLE in terrorism.
or Disposition of Firearms, Ammunitions or
Explosives) Q: But what if in the same problem, while X was waiting for
his demands to be given by the government, he saw a girl and
If the offender commits any of these crimes under
with lewd design, he touched the private parts of the seven-
the RPC and any of the crimes under special penal
year old girl. Therefore he committed a violation of RA 7610
laws, thereby sowing and creating a condition
the Anti-Child Abuse Law. He was acquitted of terrorism.
widespread and extraordinary fear and panic
Can the state prosecute him for violation of RA 7610?
among the populace in order to coerce the
government to give in to an unlawful demand, he is A: Yes, because it is not among the predicate
liable of terrorism and the penalty is 40 years crimes. It is not a crime necessarily included in the
imprisonment without the benefit of parole under crime of terrorism.
the Indeterminate Sentence Law. So it is the
maximum penalty of 40 years. He has to serve it
totally. Even if he has already served the minimum,
he cannot be given the benefit of parole under the
Indeterminate Sentence Law. So it is necessary that
he must commit any of these predicate crimes and
after committing these predicate crimes, where lies
the difference? Because his act that sowed and
created fear and panic among the populace coupled
with an unlawful demand against the government.
Q: So let us say that X was charged with terrorism based on
a valid complaint or information a case of terrorism was filed
against him before the RTC. However, after trial on the
merits, the judge acquitted him. According to the judge, the
prosecution failed to prove the guilt of the accused beyond
reasonable doubt therefore acquittal for reasonable doubt.

10 |
TITLE TWO ⮚ There is detention when the offended party is

placed in incarceration, when the offended
CRIMES AGAINST THE FUNDAMENTAL LAWS OF
party is placed behind bars or when the
THE STATE (Articles 124 – 133)
offended party is restrained of his person or
The acts under TITLE TWO are made criminal because liberty.
they both appease the Bill of Rights. The rights stated under ⮚ In order to amount arbitrary detention there
the Constitution and the first of these is under ARTICLE must be an act of restraint on the person
124, 125, and 126 – Arbitrary Detention. or liberty of the offended party. Absent
BAR: THREE ACTS PUNISHED AS ARBITRARY that intent, absent the actual restraint on the
DETENTION: person or liberty of the offended party – It can
be any other crime BUT NOT
1. Arbitrary Detention by detaining a person without ARBITRARY DETENTION. Therefore,
legal ground under Article 124 Supreme Court said that intent to detain must
2. Arbitrary Detention by failing to deliver the detained be manifest, it must be evident. Absent that, it
person to the proper judicial authorities within 12, 18 can be any other crime but not arbitrary
or 36 hours under Article 125 detention.
3. Arbitrary Detention by delaying the release of
prisoners despite the judicial or executive order to do 3. That the detention is without legal ground.
so under Article 126
Detention is without legal grounds under Article
ARTICLE 124 – ARBITRARY DETENTION BY 124:
DETAINING A PERSON WITHOUT LEGAL
GROUND (1) When the said offended party was
arrested without a warrant of arrest.
ELEMENTS: (2) When the said offended party was
1. That the offender is a public officer or employee. arrested and his arrest and detention does
not fall under any of the circumstances of
⮚ The offender is a public officer or employee.
a valid warrantless arrest.
But not all public officers or employees can
(3) When he is not suffering from violent
commit arbitrary detention. The public
insanity or any other ailment which
officer of employee can commit arbitrary
requires compulsory confinement.
detention are only those who have been
vested with authority to effect arrest Valid grounds for detention:
and detain a person or at least to cause
(1) If the person was received and detained by
the detention of a person. Even if he is a
virtue of a warrant of arrest.
public officer and he detains another, but he is
(2) If a person was arrested and detained
not vested with authority to effect arrest or
under any of the circumstances for a valid
detain another, although a public officer, he
warrantless arrest
was acting in hid private capacity, the crime
(3) If a person was suffering violent insanity
committed is either Article 267 – Illegal
or any illness which requires compulsory
Detention or Article 268 – Slight illegal
confinement.
detention but it is not Arbitrary detention.
Public officers who have been vested with Q: So if a person, driving his vehicle entered a one way street
authority to effects arrest and detain a person and in violation of the LTO rules and regulation, was stopped
are POLICE OFFICERS. On the other hand, by police officer, his license was taken, gave him a ticket, and
public officers vested with authority to cause was brought to the nearest PNP station and was placed
the detention of a person are MEMBERS OF behind bars. He was detained. That was 8 o’clock in the
CONGRESS. They can order the detention of a morning then the arresting officer left. And on the afternoon,
person who has been cited of contempt for the police officer returned to the police station. Upon his
failing to accurate their proof, or we have arrival, he immediately released the incarcerated person
JUDGES they can order the summary whom he detained for entering a one way street. Is the said
detention of persons cited in contempt of police officer liable for arbitrary detention under Article 124?
court.
A: YES, he is liable of ARBITRARY DETENTION.
He is a public officer vested with authority to effect
2. That he detains a person.

11 |
arrest and detain a person. If he detained the person, complainant will already disappear, they will no longer
the detention was without legal ground. It is without follow up and because of that all these cases did not proceed
legal ground because entering a one way street and to court, but this time the police officers chance upon X, it
violating the traffic rules and regulation is not a ground was 9’oclock and still on the street, perhaps he would be
for incarceration. It is not a ground for a person to be looking for another victim, so they arrested X and brought
placed behind bars. If a person committed a violation of him inside the car and thereafter they brought him to the
traffic rules and regulation like entering a one way street police station, and he was placed behind bars, the following
or beating the red light, he should only be given a ticket. morning however, X was found dead with 5 gunshot wounds
There should not even be a confiscation of license. After on his head, the police officers who arrested him were
that, he should be allowed to leave but that is not a charged with arbitrary detention, are they liable under
ground for him to be placed under detention. Since the Art.124?
officer detained the person without any legal ground HE
A: No. Under Art. 124, the first element is that the
IS LIABLE FOR ARBITRARY DETENTION.
offender is a public officer or employee, the second element
Q: What if X is suspected to be a snatcher and many that they arrest and detain another, the second element in
complaints was filed against him. One time, when the police this case is absent. There is no manifest intent to detain X,
officers were conducting a patrol they saw X who was no manifest intent to keep him in incarceration, there is no
perhaps waiting for a ride. When the police officers saw X manifest intent to put restraint to his person or liberty. The
they immediately arrested X and brought him to the nearest manifest intent is to KILL HIM, therefore the crime
police station. They told X that he is to be investigated for he committed is not arbitrary detention under Art. 124 because
is said to be a cellphone snatcher. So he was brought to the the second element is immediately absent.
investigation room however, the investigation officer was
not around so the arresting officer told him that he needs to
be investigated and that he can leave but he must make sure ARTICLE 125 – ARBITRARY DETENTION BY
to come back for purposes of investigation otherwise if he FAILING TO DELIVER THE DETAINED PERSON
does not come back the next time they see him they will kill TO THE PROPER JUDICIAL AUTHORITIES
him. So because of that, X would get out of the precinct but WITHIN 12, 18 OR 36 HOURS
would immediately return. Are the police officers liable for
ELEMENTS:
arbitrary detention?
1. The offender here is a public officer or employees
A: NO, the police officers are not liable for
vested with authority to effect arrest and detain a
arbitrary detention. There is no intent to restrain or
person.
detain the person or liberty of X, the offended party. In
2. That offender has detained a person for some legal
order to amount to arbitrary detention it is necessary
ground
that the intent of the public officer to restrain the person
or liberty of the offended party must be manifest and it ⮚ The second element requires that the offender
must be evident. In this case however, it is not. arrests and detains a person for some legal
ground.
✰ Even if there is a threat on the part of the police
officer there is however no intent to detain X. What Legal grounds referred to under Article 125?
are the crimes if any are the police officer liable for?
The legal ground being referred to in Article 125 is
⮚ They committed GRAVE THREATS
not the fact that the said arrest was made by virtue
because they threatened to kill X if he would
of a warrant of arrest because if the offended party
not come back. It is the grave threats that made
was arrested by the public officer by virtue of a valid
X come back in the police station.
warrant of arrest he does not have the obligation to
Grave Threats by threatening another with the infliction deliver him to the proper judicial authorities.
upon his person, honor, or property, or that of his family, any
Valid instances in arresting a person – these refer
wrong amounting to a crime and demanding or imposing
to circumstances of valid warrantless arrests under
any other condition even though not unlawful.
Section 5 Rule 112 of the Rules of Court. It requires
Q: The police officers are patrolling the area, then they that a peace officer or a private individual may even
chance upon X, who is a well-known snatcher, previously without a warrant arrest a person under the
there were already complaints against X for snatching following circumstances:
wallets, bags and cellphones, but none of them were filed a.) That in his presence the person to be
before the courts, because after filing the complaint, the arrested has committed, is actually

12 |
committing, or is attempting to commit a c) 36 hours, for crimes punishable by afflictive or

crime. This is otherwise known as capital penalties, or their equivalent
INFLAGRANTE DELICTO ARREST
Q: What if a person has been arrested In flagrante delicto in
b.) When a crime has in fact just been
possession of an unlicensed firearm. Possession of
committed, and the police officer has
unlicensed firearm is punished by a special penal law (P.D.
probable cause to believe based on personal
1866 as amended). Is the arresting officer required to deliver
knowledge of facts and circumstances that
the accused to the proper judicial authorities? Does Article
the person to be arrested is the one who
125 apply even to violation of special penal laws?
committed the crime. This is otherwise
known as HOT PURSUIT ARREST. A: Yes, because the law says “or their
c.) When the person to be arrested is a prisoner equivalent”. 12 hours, for crimes punishable by light
who has escaped from a penal establishment penalties, or their equivalent. That means all their
or a place where he is serving final sentence equivalent refers to their equivalent even in cases of
or temporarily detained while his case is violation of special penal laws. Therefore, even if the
pending, or has escaped while being crime committed or the crime for which the offender is
transferred from one penal institution to being arrested is based on violation of special penal
another. laws, the arresting police officer has the obligation to
deliver the person arrested to the proper judicial
3. That the offender failed to deliver the person arrested authorities in consonance with Article 125 of the
to the proper judicial authorities within 12, 18 or 36 Revised Penal Code.
hours.
The third element requires that that the Q: The police officers were patrolling the area and they
offender fails to deliver the person arrested to chance upon X and Y, having a drinking spree in a sari-sari
the proper judicial authorities within 12, 18 or store, and the police officers told them they they better go
36 hours. home already because it is raining, after that they proceeded
and then they heard a commotion and when they looked
Delivery does not mean that you really have to deliver the back, they saw X and Y, no longer drinking, but they are
physical body of the person arrested to the court. It means already fighting, so the police officers hurriedly went back,
constructive delivery or legal delivery, meaning, the filing of but it was already too late because they already saw X
the appropriate case before the proper court. That is stabbing Y with a fan knife, they brought Y to the hospital,
delivery to proper judicial authorities - filing of the case but he is already dead, so they investigated X and brought
before the proper court. him to the police station, finger prints and matches taken,
The proper judicial authorities refers to courts of justices or and placed behind bars and a case of homicide is being
judges of the courts that has the power to order the prepared to be filed against X, but they did not file it because
incarceration or detention of a person or his temporary at that time it was 7 oclock Saturday evening, the following
restraint upon posting of appropriate complaint. The morning it is Sunday – a non working day, then Monday is
FISCAL does not belong to the proper judicial authority declared as a regular holiday and Tuesday there was a heavy
because he belongs to the executive branch. The Fiscal is storm, and it was signal no. 3 so no offices according to
under the Department of Justice and not under the Supreme malacanang, so Wednesday the storm already calmed down
Court. The head of the Fiscal is Secretary De Lima and the and the offices already opened, and so the police officers
President and not Chief Justice Sereno. That’s why a Fiscal immediately brought X for inquest, after the inquest the
is not within the meaning of a judicial authority. Second, public prosecutor filed a case before the proper court,
fiscal may recommend the bail but he does not have the however, here comes the defects, they filed against the police
power to fix the bail and allow the accused to go on officers a counter-charged, they filed against the police
temporary liberty. Only the judges are allowed to fix the bail officers a charge for arbitrary detention under Art. 125, the
and order the temporary liberty of the accused until upon the counsel of X said that these police officers failed to file a case
posting of the said bail (not mentioned in 2017 discussion). within the 36 hour requirement by law, are the said police
officers liable under Art. 125?
The law says that a public officer must deliver the person
arrested to proper judicial authority within: A: NO, the police officers are not liable for
arbitrary detention. The first element is present,
a) 12 hours, for crimes punishable by light penalties, they are public officers, the second element is also
or their equivalent present because they arrested and detained him for
b) 18 hours, for crimes punishable by correctional some legal ground, they caught him inflagrante delicto
penalties, or their equivalent

13 |
killing Y, but the third element is absent they delivered the prisoner. This is an example of executive order
him to the proper judicial authorities WITHIN THE for the release the prisoner.
PERIOD REQUIRED BY LAW, within 36 hours. The
Q: What if X has been charged of two crimes - Illegal sale of
Secretary of the Department of Justice has made a legal
dangerous drugs and illegal possession of dangerous drugs?
opinion that the said 12, 18 and 36 hours refers to
So, two crimes were filed against him. The illegal possession
WORKING HOURS. These refer to the time when the
of dangerous drugs was filed before the RTC Branch 6 on the
courts are open in order to receive the complaints to be
other hand; the illegal sale was filed before RTC Branch 87.
filed before them. This does not include the crime
Two different courts were filed with. In the illegal possession
wherein the courts are closed and they did not receive
of dangerous drugs which was filed in RTC Branch 6, no
the complaint or information to be filed against the
witnesses were ever presented and so the judge immediately
accused, therefore the Saturday, Sunday, Monday and
declared the dismissal of the case and he ordered that X
Tuesday in this case are not considered as working
should already be released from jail. However, the case for
hours, so when they filed the case on Wednesday, it is
illegal sale of dangerous drugs under RTC Branch 87 is still
still within the 36 hours requirement by law.
ongoing. The jail warden receives the order coming from the
ARTICLE 126 – ARBITRARY DETENTION BY judge RTC Branch 6 that X should be released. The jail
DELAYING THE RELEASE OF PRISONERS warden did not comply. Is the jail warden liable for arbitrary
DESPITE THE JUDICIAL OR EXECUTIVE ORDER detention under Article 126 - Arbitrary Detention by
TO DO SO delaying the release of prisoners despite the judicial or
executive order to do so?
ELEMENTS:
A: NO, the jail warden is not liable for arbitrary
1. The offender is a public officer or employee
detention under Article 126 because there is still
2. That there is a judicial or executive order for the
another pending case against the said prisoner before
release of the prisoner or detention prisoner, or that
another court. Therefore, it is incumbent upon him not
there is a proceeding upon a petition for the liberation
to compel with the judge of Branch 6 since there is
of such person.
another case in Branch 87 which is still ongoing. What
3. That the offender without good/valid reason delays:
the law punishes is delay without valid reason for the
a. The service of the notice of such order to the
release of the prisoner.
prisoner; or
b. The performance of such judicial or Q: The police officers were patrolling the area one Friday
executive order for the release of the evening and saw X in the act of snatching the cellphone of
prisoner; or the victim. They chased X and was able to arrest X. They
c. The proceeding upon a petition for the returned the cellphone. Thereafter, X was placed behind
release of such person. bars. The following day, the office of the public prosecutor
was closed. The police officers were not able to file the
NOTE: What is punishable is the delay without valid reason,
complaint. Sunday, it was closed so was on Monday, a
the delay of the release of the prisoner despite the judicial or
national holiday. They only filed the case on Tuesday, 8
executive order to do so.
o’clock. After the inquest proceedings, the fiscal filed the
⮚ Example of judicial order for the release of a case but it was way beyond the maximum hours provided for
prisoner let’s say that a person has been charged in under Article 125. Are the police officers liable under Article
court and the public prosecutor failed to present 125?
any evidence four consecutive times and no A: No. This is because the “12, 18, and 36 hours” refers
witnesses has ever been presented since the to working hours – when the office of the public
beginning. The judge will dismiss the case and prosecutor and the courts are open to receive the
order the release of the accused from jail. This is an complaint or information to be filed against the accused.
example of a judicial order for the release of a Whenever the office or the courts are closed, the period
prisoner. Or let’s say the judge acquitted the does not run.
accused then he will order the release of the said
accused from jail. Q: The woman was arrested by the police. She was begging
⮚ How about an example of an executive order for a alms with her young son. She was later placed behind bars.
release of a prisoner? A person was arrested and She asked the crime she committed. The police officers did
placed behind bars and proceeding was filed before not answer. There was no investigation, no mug shots were
the fiscal’s office. The fiscal ordered the release of taken, no finger prints. After three hours, she was thereafter
released. By the assistance of a PAO counsel, she filed a case

14 |
for arbitrary detention under Article 124 against the however the police officers in possession or detaining X did
arresting police officer. Is he liable? not obey, are they liable of arbitrary detention?
A: Yes. He is a public officer vested with authority to A: Yes they are liable of Arbitrary detention under
effect arrest against another. He detained a person Article 126, they are public officers vested with authority to
because there was obvious intent to detain her. If the effect an arrest, there is an executive order coming from the
intent was to file a case, they could have investigated public prosecutor ordering the release of X because he found
her. Here, there was no such thing. She was just placed no probable cause against X, yet the said police officers
behind bars. There was also no valid ground for the unduly delay the release of such prisoner without legal
detention because the police officer did not inform her grounds, hence they are liable of arbitrary detention under
of the crime she committed, for this the detention is Art. 126.
without valid ground. He is liable.
ARTICLE 127 – EXPULSION
Q: Adding facts to the problem, the woman was placed
ELEMENTS:
behind bars. The police said that it was unlawful to beg and
therefore she was detained. There was no investigation. After 1. Offender is a public officer or employee
an hour, she was released of the prison cell, brought to the 2. The public officer or employee acts either:
office of the arresting police officer and there had carnal a.) By expelling a person from the Philippines
knowledge with her. The woman filed a case for rape through b.) By compelling a person to change his residence
arbitrary detention because arbitrary detention was 3. Offender is not authorized to do so by law
necessary to commit rape. Is the charge correct? ⮚ It is necessary that the police officer doing the
A: No. There was no arbitrary detention. The second expulsion or compulsion to change residence, must
element is absent – there was no manifest intent to be WITHOUT AUTHORITY AUTHORIZED BY
detain. The obvious intent was to rape the said woman. LAW. If he is authorized by law then he does not
Therefore the arbitrary detention was merely incidental commit the crime.
and as such absorbed in the commission of the crime of ⮚ What the law prohibits is that if this public officer
rape. Hence, the appropriate charge is rape. or employee expels him from the Philippines or
compels him to change his residence without lawful
Q: X was charged with two crimes – illegal sale of dangerous authority to do so because there are persons who
drugs which is a non-bailable offense raffled to RTC Branch have been authorized by law to deport a person
83 and illegal possession of dangerous drugs, a bailable from the Philippines or to compel a person to
offense and raffled to RTC Branch 84. Both ensued into trial. change his residence.
In illegal possession, fiscal failed to present witnesses so the ⮚ For example, judge convicted X and penalty
judge provisionally dismissed the case and ordered the imposed is destierro, so X is prohibited to enter a
release of X. The jail warden was in possession of the order certain place as indicated in the judgment, that
but did not release X. Is he liable under Article 126? place happened to be where he is residing,
A: No. What the law punishes is the act of failing to therefore he was forced to leave the place and
release a prisoner despite the judicial order to do so change his place of residence, the judge is not liable
without any valid or justifiable ground. The jail warden because he is authorized by law, he has all the rights
had a valid reason for not releasing X. Although RTC to compel X to leave his residence.
84 dismissed the case and ordered the release of X, X ⮚ For example, the President has the power to deport
was facing another case which is the non-bailable or expel a person from the Philippines. Another
offense of illegal sale of dangerous drugs. Therefore example is a foreigner who is known to be a persona
there was a valid reason to keep him and therefore the non grata; the President may order his deportation
jail warden is not liable. to his home.
⮚ The courts on the other hand, have the power to
Q: X was arrested by the police officers, allegedly he was
compel a person to change his place of residence.
caught in flagrante delicto for committing a crime, the case Let’s say the offender is a concubine and the
was filed before the office of PAO, during in quest the public penalty to be imposed to a concubine is destierro.
prosecutor makes some questioning, after that the public Therefore, the concubine is prohibited from
prosecutor resolved the case and said it found NO entering a particular place based on the judgment
PROBABLE CAUSE against X, therefore case was dismissed of the court. Now, the prohibited place from which
and in said resolution the public prosecutor issued an order she is prohibited from entering is the place where
for the release of X, the person arrested and detained, she lives. She cannot enter the said place therefore;

15 |
the court is empowered to compel her to change her ■ The second element requires that entering
place of residence because she cannot enter the upon the dwelling of another which is not
place wherein her house is situated. authorized by a judicial order. The judicial
order refers to a search warrant
Q: X, a concubine, was sentenced to suffer the penalty for
destierro for being convicted of concubinage by a judge. She 3. He either:
was prohibited from entering an area which is within her
a. Enters the dwelling of another against the will
residence and therefore she was compelled to change her
of the latter; or
residence. Is the judge liable for expulsion?
b. Searching for papers or other effects found
A: No. Although the first and second elements are
therein without the consent of the owner; or
present, the third is absent. The judge had the authority
to compel a person to change his or her address. c. After having surreptitiously entered the
dwelling, being discovered and asked to leave,
VIOLATION OF DOMICILE (ARTICLE 128, 129, 130)
he refuses to leave.
⮚ a public officer or employee entered into a dwelling of
Different modes of violation of domicile:
another which is not armed with a search warrant
(These three modes are separate and distinct from each
⮚ different prohibited acts constituting violation of other – do not look for all the three modes in a problem,
domicile: violation of one of them will bring about violation of
I. By entering any dwelling against the will of the domicile.)
owner thereof; or 1. By entering any dwelling against the will of the
II. By searching papers or other effects found owner thereof; or
therein without the previous consent of such
⮚ There must a prohibition, an opposition from
owner; or
entering. It can either be an implied or expressed
III. By refusing to leave the premises, after having opposition from entering.
surreptitiously entered.
Examples:
ARTICLE 128 – VIOLATION OF DOMICILE
Implied opposition – the door is closed,
ELEMENTS: although it is not locked. It can be said that the
owner is saying that “No one can enter my
1. The offender is a public officer or employee
house”
⮚ The offender in the violation of domicile is a Expressed prohibition – when the owner is
public officer or employee acting under color inside the house and the officer knocks upon the
of authority. door and upon seeing the officer, the owner
⮚ A public officer or employee is said to be acting closes the door. If there are sayings – “Do not
under color of authority if he has been vested enter”, “No entry”
with the authority to implement a search ⮚ It does not mean entering without the consent. An
warrant, but when he entered in the said entry without the consent is not an entry against
dwelling, he is not armed with a judicial order the will.
or search warrant. Therefore, he was acting ⮚ When you say entry against the will, there must be
under color of authority. an opposition or a prohibition from entering the
⮚ Even if he is a public officer or employee, but dwelling.
he did not act under color of authority, is liable 2. By searching papers or other effects found
only, not for violation of domicile, but is either therein without the previous consent of the
liable for qualified trespass to dwelling or owner; or
trespass to property because the public officer
or employee is acting under his private ⮚ The consent of the owner matters. Even if the
capacity. public officer or employee is allowed inside or to
enter his dwelling, the fact that he is allowed inside
2. He was not authorized by a judicial order to enter does not mean that he is allowed to conduct the
the dwelling and/or make a search therein for search.
papers or other effects

16 |
⮚ He must ask first for the previous consent of the even without a search warrant. Since there is no
owner before proceeding with the search. Without prohibition or opposition from entering, violation of
the previous consent of the owner to conduct the domicile cannot be committed under the first act. Under
search, any search would be a violation of domicile. the second act, it cannot be committed because he did
not conduct the search. The third act also is not
3. By refusing to leave the premises, after having committed because the entering of the house is not done
surreptitiously entered the dwelling surreptitiously.
⮚ It is his refusal to leave the premises that will bring Q: What if in the same problem, the door of the house was
about the violation of domicile, NOT the open, a public officer with the intent to conduct a search
surreptitiously entering. But it is required that warrant entered the house, when he was in the sala, the
entering must be done surreptitiously. owner of the house saw him and told him to leave. He did
Surreptitious entering – means entering the not leave; he just stayed there and sat on the sofa. Is he liable
dwelling secretly or candidly. Therefore, it is for violation of domicile?
important that he must refuse to leave after being A: He is not liable for violation of domicile.
discovered and asked to leave in order to amount to Under the first act, is entry against the will? – NO, the
violation of domicile. door was open. Therefore, there was no opposition or
prohibition from entering. Under the second act, he did
⮚ Mere surreptitious entering will not bring about
not conduct a search. Under the third act, is the entering
violation of domicile.
done surreptitiously? – NO, because the door of the
Q: Two police officers and a barangay chairman, at about 12 house was open; therefore, he did not violate any of the
midnight forcibly opened the locked door of the house of W following acts amounting to violation of domicile.
and barged inside the house. They began searching. W, who ✰ But he did not leave the house, although the owner
was fast asleep, awakened and saw these three men. He of the house asked him to leave. Is he liable? Yes.
asked what their business was but they ignored him and He is liable for unjust vexation (nangiinis lang
continued with the search. W asked if they have a search siya). Although he did not leave the house, he
warrant. They could not produce any. They later found an cannot be liable for violation of domicile because
airgun which they took. What crime was committed? his act does not constitute the acts prohibited by
A: They are liable for violation of Domicile Article 128.
under Article 128 with the qualifying Q: Police officers X and Y are assigned to conduct
circumstances of nighttime and any evidence as
surveillance in the house of W because based on reports he
constituting the evidence of the crime was not
is engaged in drug pushing, they conducted at night time,
returned immediately to the owner thereof.
and while conducting surveillance they saw that the gate was
They are liable first, they are all public officers, second,
opened, however when they reached the door, it was closed,
they are not armed with a judicial order, third, the entry
but when they held the door knob it was not locked , so they
was done against the will of the owner thereof because
opened the door and went inside, they were about to conduct
the door was closed. They also conducted the search
the search, however the owner saw them and told them to
without the consent of W, the owner. The entry was
leave and they left. Are they liable for violation of domicile
done surreptitiously and they refused to leave when
under Art. 128?
they were ordered to do so. Therefore they are liable for
violation of domicile. Also, the act was done at nighttime A: first element they are public officers, second element they
and the airgun was not part of the evidence and yet, they are not armed with a search warrant, third element they
took the same without returning to W. These entered the dwelling of W against the will of W, although the
circumstances will qualify the imposable penalty. gate was opened the door was closed, although it was
unlocked, but because it was closed there is already an
Q: The door of the house was open. A police officer without
implied opposition or prohibition to enter, so the moment
being armed with a search warrant, entered the door of the
police officers X and Y entered the closed door, without a
house and went up to the sala. The owner of the house saw
search warrant intending to conduct a search, they become
him and asked him to leave, and he left. Is he liable for
liable of violation of domicile under Art. 128 under the first
violation of domicile?
act. The entry was done against the will of the owner.
A: He is not liable for violation of domicile. When
Q: What if in the same problem, the said police officers X
the door of the house is open, there is no prohibition,
and Y saw the gate open, they reached the door and it was
there is no opposition from entering anybody may enter
also open, so they entered the house, and upon entering the

17 |
house they went upstairs, they were about to conduct a the sala intending to conduct the search. Before he could
search but the owner saw them and asked them to leave. And conduct the search, the owner of the house saw him, and told
so they left to avoid any commotion, are they liable for him to leave and he left. Is he liable for violation of domicile?
violation of domicile?
A: Yes. He is laible for violation of domicile. Even
A: No. First element they are public officers, second if he left the said place upon being told to do it, he is
element they are not armed with search warrant, third already liable because his entry was against the will of
element, was it done against the will of the owner? NO. There the owner. The door was closed although it was not
was NO IMPLIED or EXPRESSED OPPOSITION or locked. Therefore, there was an implied opposition, an
PROHIBITION to enter because both the gate and the door implied prohibition from entering. When he entered
was open, anybody can enter (first act not violated). Second without a search warrant intending to conduct a search
act also not violated because they were just about to conduct is already a violation of domicile.
a search, third act, yes it was done surreptitiously , but when
Q: What if the police officer knocked on the door of the
they were discovered by the owner they left, therefore they
house of X. X opened the door, upon seeing the public
did not commit a violation of domicile.
officers, X allowed them to enter. The police officer told X
Q: What if X was watching the television, and there were that they were looking for a stolen car stereo in the
knocks on the door, so he opened the door and there were neighborhood; we are going to conduct a search in your
police officers, out of respect they told him to enter his house house. X said, "No, you cannot conduct a search inside my
and to sit, but the police officers said they are there to search house.” The police officers agreed and left the house. Are
his house, so X was shocked, the police officers said that they they liable for violation of domicile?
got a report about a missing bicycle at about 5pm, and the
A: They are not liable. It is not entry against the will.
person who took the bicycle went inside X’s house and so X
They did not conduct a search. The entry was not done
asked if they have a search warrant, but the police officers
surreptitiously. It does not fall in any of the acts,
said they failed to get a search warrant, so X said then
therefore, they are not liable for violation of domicile.
without such they cannot conduct a search, but the police
officers did not listen and they pushed him and proceeded in Q: In the same problem, when they told the owner that they
conducting the search, upon opening a room, they entered were conducting a search for the stolen car stereo, the owner
and immediately saw the stolen bicycle, so they called the of the house said, “No, you cannot conduct a search. There is
owner and the owner identified it to be as the stolen bicycle, nothing stolen inside my house.” but the police officers
so X was charged with theft. Can the said bicycle be used as proceeded with the search.
an evidence against him? He filed a counter-charge against
A: This time, they are liable for violation of
the police officers for violation of domicile. Are the police
domicile because they made a search without the
officers liable? Is the bicycle admissible as evidence in the
previous consent of the owner – under the second act of
crime of theft?
Art. 128
A: YES. First element of violation of domicile, they are
Q: What if in the same problem, the owner of the house told
public officers, second element they are not armed with a
the police officers, “No you cannot conduct a search, there is
search warrant, third element – is the entry done against the
nothing stolen inside my house.” The police officers obliged,
will of the owner? NO, they were allowed to enter, it was the
they were going to leave the house, obeying the order of the
X who permitted them to enter and sit. But the second act
owner. However, on their way out, before they could go out,
was violated, although they were permitted to enter police
they saw near the door, a table and on top of it, there were
officers were not allowed to conduct a search, when X
drug paraphernalia, contraband. And so, they seized and
protested against the search, STILL the police officers
confiscated the contraband and then thereafter they leave
proceeded in conducting the search, therefore they
the house. Are they liable for violation of domicile? Are the
committed the second act, they searched papers or other
evidences confiscated admissible against the owner?
effects found therein WITHOUT THE CONSENT OF THE
OWNER, so there is VIOLATION OF DOMICILE. A: They are not liable of violation of domicile.
When they were told not to conduct the search, they did
The bicycle found inside his house CANNOT BE USED as
not conduct the search and they were about to leave,
evidence against X because it is a product of an illegal search
therefore, not liable for violation of domicile. But they
conducted by the police officers.
confiscated the drug paraphernalia that they saw. Yes,
Q: The door of the house was closed, but it was not locked. the confiscated drug paraphernalia were admissible
A police officer without a search warrant opened the door, against the owner because they were contraband. They
realizing it was not locked, entered the house and went up to are illegal per se. And the police officers saw them

18 |
without conducting the search, they saw them and directed to a peace officer, commanding him to search
inadvertently. Even without conducting the search, the for personal property described therein and to bring to court
police officers would see contraband, narcotics, in their the particular things to be seized.
presence, in their plain view, they are mandated by law
Before a search warrant may be issued, the
to seize and confiscate the same under the plain view
following are the requisites to a valid search
doctrine. So in this case, these drug paraphernalia
warrant:
where under the plain view and therefore under the
obligation to seize and confiscate them and these are 1.) It is required that it is for one specific offense.
admissible as evidence against the owner of the house.
2.) There must be probable cause
Q: What if a police officer was conducting a surveillance of
3.) The said probable cause was determined by the issuing
X, a well-known drug pusher, so he was always within the
judge personally through searching questions and
vicinity of the house of X. One time, it was the birthday of X,
answers in writing, under oath or affirmation as the
the gate of the house was open, and the door of the house
testimony given by applicant of the said search warrant
was opened. The police officer disguised himself as one of
or any witnesses he may produce.
the guests and he entered the house together with the flow of
the guests. His intention was to conduct a search. He was 4.) The applicant of the search warrant and his witnesses
already about to conduct the search when the owner of the must testify only as to facts personally known to them
house recognized him. The owner of the house came up to
5.) The said search warrant must specifically state the place
him. “I know you, you are a police officer. Get out of my
to be searched and the thing to be seized.
house right now” and he left. Is he liable for violation of
domicile? ⮚ If any of these requisites is wanting, then the said
A: No, he is not liable for violation of domicile. search warrant is illegally procured. It is procured
The entry was done surreptitiously, secretly, candidly, without just cause. A search conducted by virtue of a
he was in disguise. It was not against the will of the search warrant illegally procured without just cause is
owner because the gates and the door were open. He did akin to a search without a search warrant.
not conduct the search because the owner saw him Q: What if the police officer was armed with a search
before he could do so. The entry was done warrant, he procured the search warrant illegally without
surreptitiously. He was discovered and ordered to leave, just cause. The police had an enemy, B, he then proceeded to
and he left. Therefore, he is not liable for violation of a judge to issue a search warrant testifying under oath, the
domicile he is positive under his surveillance that B was in possession
of an unlicensed firearm inside his house. The judge believed
✰ However, upon being discovered and ordered to
the police and issued a search warrant against B. The police
leave and stayed in the house.
officer is now armed with a search warrant, and went to the
⮚ Here, he is liable for violation of domicile. house of B and showed it to B. B, upon reading the search
warrant, knew it was maliciously procured, it was procured
■ Under Articles 129 and 130, there is still violation of
without just cause. Should B allow the police officer to
domicile despite the fact that the public officer or
conduct the search?
employee is armed with a search warrant.
A: Yes. Even if the said search warrant was procured
ARTICLE 129 – SEARCH WARRANTS
without just cause, the police officer must be allowed to
MALICIOUSLY OBTAINED AND ABUSE IN THE
enter and conduct the search, because of the so-called,
SERVICE OF THOSE LEGALLY OBTAINED
REGULARITY OF PERFORMANCE OF DUTY on the
COMMITTED THROUGH: part of the judge in issuing the said search warrant. He
is armed with a search warrant issued by the judge and
I. By procuring a search warrant without just therefore, he must allow him to enter his house and to
cause conduct his search.
⮚ When a public officer or employee conducts a ✰ What now would be the remedy of the owner of the
search and the search warrant was an illegally house?
procured search warrant. It was procured without The owner of the house has the following remedies:
just cause.
1.) He can file a motion to quash the said
SEARCH WARRANT – is an order in writing, issued in warrant
the name of the People of the Philippines, signed by a judge

19 |
2.) He can file a motion to suppress the authority in the said search warrant. Therefore, they are
evidence that have been confiscated inside liable of violation of domicile under Article 129.
the house
Q: What if the said search warrant says that they could
3.) In addition to these motions, he can file a conduct the search, anytime of the day. They conducted the
case of violation of domicile against the search at night time.
said public officer who conducted the
A: They are liable of violation of domicile under
search. Violation of domicile under Art.
Article 129 because they exceeded the authority in the
129 because he procured the said search
said search warrant.
warrant without just cause.
■ A search warrant may only be conducted at day
■ So in other words, the said police officers must
time. It may only be implemented at day time.
be allowed to enter and allowed to conduct the
EXCEPTION: When there is a specific order in the
search and the owner of the house shall have
search warrant stating that it can be conducted at
the abovementioned remedies thereafter.
any time of the day or night. Absence of such order
II. By exceeding his authority or by using in the said search warrant, a search warrant can
unnecessary severity in executing a search only be implemented at day time.
warrant legally procured ■ According to the Rules of Court, peace officers are
allowed to break open the door or window of a
⮚ A search warrant is valid only for a period of 10 house if at the time of the service of the search
days from the date of its issuance appearing on warrant, they are not allowed entry. But if the said
the search warrant. officers, upon service of the search warrant were
The public officer is said to have exceeded his allowed to enter and despite such fact, they still
authority in the search warrant when despite the caused damage upon the property and hurt
discrepancy or the variance between the facts alleged in the members of the family, they are liable under Article
search warrant and the actual facts on the place to be 129 for employing excessive severity.
searched, the peace officer still proceeded with the search. Q: What if a search warrant was issued against X, the place
The Supreme Court said that a search warrant is always to be search is located at 123 Valentino St. They police went
specifically worded because the officers serving the search there. The house was owned not by X, but by Y. So they look
warrant are not allowed to exercise discretion. They must for the house of X, the house of X was 321 Valentino St. They
follow what is stated in the search warrant – the things to be presented a search warrant to X. X said, “you cannot conduct
seized, the place to be searched, the time of the search. There a search inside my house. The address in the search warrant
must be no deviation. is 123 Valentino St. and my address is 321 Valentine St.
The public officer is said to have employed excessive Nevertheless, the officers conducted the search and they
severity in the implementation of the search found the illegal items inside the house. Are the police
warrant when in the conduct of search, they deliberately officers liable of violation of domicile? Are the confiscated
caused damage on the property, they deliberately caused items admissible evidence against the owner?
harm or injury to any person in the conduct of the said A: The officers are liable for the violation of domicile.
search. When they conducted the said search, on a house that
EXCEPTION: Under the Rules of Court, the police officers has a different address from that said search warrant,
are allowed to break door or window if at the time they will they exceeded their authority in the said search warrant.
conduct the search, they are not allowed entry. The search warrant is so worded, expressly, as to the
thing or place to be searched. The police officer cannot
In real life, the police officers have this document, Affidavit exercise discretion. They have to follow what is stated in
of Orderly Search which they will later ask the owner of the the search warrant. The moment they did not follow
place searched to sign in order to testify that the search was what is stated in the search warrant, then they exceeded
done in an orderly manner. the authority. In that case, when there is variance
■ A search warrant is only valid for ten days. If a search between what is stated in the search warrant and the
warrant was dated Dec. 1. A police officer received it on actual facts of the case to be searched, the have to go
Dec 3. The search was conducted Dec. 13. The said back to the judge that issued the said search warrant
search warrant is already invalid. When they conducted and they have to ask or move for the amendment of the
the said search on Dec. 13, they already exceeded the said search warrant.

20 |
Q: What if the third punishable act under Art. 129 the said police officers.
amounting to the violation of domicile, when the public
officer or employee exercised excessive severity in the Q: What if police officer X is envious of his neighbor,
implementation of the said search warrant? What if a search a new neighbor who is only new to the place but after
warrant is issued against X, the police officers went to the 6 months is already renovating the place, very rich.
house of X, upon reaching the house of X, they showed the Police officer X was envious, he personally believes
warrant to X and he allowed them to enter. The search that his neighbor is engaged in an ILLEGAL ACTIVITY
warrant said that they could search for dangerous drugs, and so he went to the judge and said that he and his
particularly, shabu. In searching for shabu, they turned men conducted a surveillance and were positive that
upside down and deliberately destroyed each and every his neighbor by the name of Y is engaged in arm
furniture and appliance inside the house of X. When the wife smuggling, he did not conduct any surveillance and yet
of X saw this, she told the police officers to stop, but she was he testified before the judge to apply for a search
slapped twice. She then suffered less serious physical warrant, he testified that he was positive that there
injuries. In deliberately destroying the furniture and were unlicensed firearms, 10 armalites and 10 caliber
appliances of X, the public officers committed malicious 45 pistols, the judge believed him and gave the
mischief. In slapping the wife, they committed less serious necessary search warrant, and police officer X and his
physical injuries. What crime/crimes would you file against men proceeded to the house of his neighbor and
the police officers? presented the search warrant to Y, despite the protest
of Y they proceeded, In order that no evidence will be
A: You have to file 3 cases: planted in his house, Y told one of his media friends,
1. Violation of domicile – because they exercised the police officers found nothing, but Y was so
excessive severity in the implementation of the said embarrassed so he wanted to file a case, what case can
search warrant. They need not destroy the he file?
property. They need not slap the wife. All of these A: He can file violation of domicile under Art.
are excess of the search warrant. Therefore they 129. The search warrant was procured WITHOUT
should be filed in violation of Art. 129, violation of JUST CAUSE, it is the 6th element of a valid search
domicile, for exercising excessive severity. warrant which is absent, because the said applicant
2. Malicious mischief – for destroying the furniture and his witnesses must only testify as to FACTS
and appliances personally known to them, but in this case police
officer X and his men did not testify based on facts
3. Less serious physical injuries – for slapping the personally known to them, they did not really
wife conducted a surveillance, so they lied under oath.
Therefore they are also liable under Art. 183 for
✰ Are you going to file all 3 cases or is it absorbed and
PERJURY. (so in this case without lying under oath
must be file within the court?
they will not obtain the search warrant, so the perjury
⮚ Violation of domicile cannot absorb malicious is a necessary means to commit violation of domicile
mischief or less serious physical injuries. in this case, but these two crimes CANNOT BE
COMPLEXED because under Art. 129 the penalty for
⮚ Although in reality, these two are merely the violation of domicile is in addition to any liability for
manifestations of the excess in the any other crimes committed by the said police officer,
implementation of the said search warrant, they so two SEPARATE and DISTINCT charges shall be
cannot be absorbed, they cannot be complex. filed against the police officers – one for violation of
Under Art. 129, the law expressly prohibits such domicile under Art. 129 and one for violation of Art.
absorption and such complexity of crimes. 183 or perjury).
⮚ Under Article 129, the liability for violation of
domicile shall be in addition to the liability
attaching to the offender for commission of any Q: What if the police officers were armed with a search
other crime. Therefore, if aside from violation of warrant issued by the courts against X (People v. X) for
domicile, Another crime is committed by the possession of illegal firearms, the police officers are hereby
police officers, they had to be charged with all commanded to search the house of X and to seize and
these cases. Art. 129 prohibits the complexing of confiscate 5 caliber pistols found in the said house and to
a crime. It also prohibits the absorption of this bring it immediately to Court. Signed by the judge. The
crime, therefore all 3 cases must be filed against police officers went to the house of X at 11pm because based

21 |
on their surveillance, X arrives late at night 10Pm would be Q: A search warrant was issued against X and the police
the earliest and so to ensure that X was inside the house officers went to the house of X. They showed the search
when they conduct the search, so they serve the search warrant to X and they were allowed inside to conduct the
warrant at 11’oclock, so they served the search warrant to X search. In conducting the search, the search was witnessed
and they indeed found 5 caliber pistols as stated in the search by 2 barangay tanods who came with them, who arrived with
warrant, so are the police officers liable for violation of them in the house of X. in the conduct of the search, they told
domicile, are the said pistols admissible as evidence? the owner of the house, X, that his wife and his two children
to remain in the sala while they conduct the search inside the
A: the police officers are liable of violation of bedroom of X. In conducting the search in the bedroom of X,
domicile under Art. 129. Because they exceeded the the search was witnessed by 2 barangay tanods and they
authority in the search warrant, if there is no express found 2 plastic sachets of shabu underneath the pillow inside
statement in the search warrant that it can be conducted at the bedroom of X. Are the police officers liable of violation of
ANY TIME OF THE DAY OR NIGHT, then it can only be domicile under Article 130? Are the evidence seized
served at DAY TIME. In this case, they served it at 11 in the admissible against the owner?
evening therefore they EXCEEDED THE AUTHORITY in
the search warrant , they violated the second act under Art. A: The police officers are liable of violation of domicile
129 hence they are liable. under Article 130.
■ Article 130 provides for a hierarchy of witnesses

If based on their surveillance X only arrives late at night, who must be present in the conduct of the search.
STILL they should not have proceeded with the search, The law says it must witnessed by the owner of the
instead they should go back to the courts and file a motion to house, it is only in the absence of the owner of the
AMEND the said search warrant, then the Court will now house that it must be witnessed by any member of
amend it and state that the search can already be conducted his family. It is only in the absence of the owner of
anytime of the day or night. (but without that they cannot the house or any member of his family that there
serve the search warrant at night). must be 2 witnesses residing from the same
locality.
If in the conduct of the search, the police officers employed
In the problem, the owner of the house was there, the
force and inflicted physical injuries to the owner or any
members of his family were there but, they were not
member of his family, therefore the police officers will be
allowed to witness the said search. Therefore, the said
liable under Art, 129, they cannot employ any force except
search was conducted in violation of Article 130 and any
when they are not allowed to enter despite showing that they
evidence confiscated will be inadmissible against the
have a valid search warrant, it is only then that the rules of
owner of the house for being fruits of poisonous tree
court allow them to employ force, but if they are allowed to
under the exclusionary rule in Political Law or Remedial
enter they cannot employ force.
Law.
ARTICLE 130 – SEARCHING DOMICILE WITHOUT Galvante v. Casimiro
WITNESSES
The Supreme Court says that there is no such crime as
Committed by conducting a search in the absence of illegal search. So, what is prohibited only the searching
the owner of the house, or any member of his of the dwelling under Article 129. But, in case of search
family, or two witnesses residing in the same under vehicle or any other places, there is no such thing
locality as illegal search. The remedy is to file an action for
ELEMENTS: damages, a civil action for damages.
1. Offender is a public officer or employee ARTICLE 131 – PROHIBITION, INTERRUPTION

2. He is armed with a search warrant legally procured AND DISSOLUTION OF PEACEFUL MEETINGS
3. He searches the domicile, papers, or other belongings ELEMENTS:
of any person
4. The owner or any member of his family or two 1. The offender is a public officer or employee
witnesses residing in the same locality are not present 2. The offender committed any of the following acts:
a. By prohibiting or by interrupting, dissolving,
HIERARCHY: without legal ground, the holding of a peaceful
1. Owner meeting, or by dissolving the same. (any
2. Any member of his family peaceful meeting)
3. Two witnesses residing in the same locality b. By hindering any person from joining any

22 |
lawful association or from attending any of its went out of the church. What crime if any is committed by
meetings. X?
c. By prohibiting or hindering any person from A: X is liable for interruption of religious
addressing, either alone or together with worship under Article 132. What about the fact that
others, any petition to the authorities for the he pointed a gun at the head of the priest? Would it
correction of abuses or redress of grievances. constitute a separate and distinct crime of grave
threats? It will not. The fact that threats were employed
⮚ For the crime to arise, it is necessary that the meeting in the commission of the crime would only mean the
that was prevented, interrupted or dissolved must be a penalty will be imposed in its maximum period. It
peaceful meeting and it must be for any lawful purpose. would be considered an aggravating circumstance in
If the meeting is not a peaceful meeting or if the meeting committing the crime of interruption of religious
is not for lawful purpose, a public officer or employee worship. BUT, IT WILL NOT BRING ABOUT A
has all the rights to prevent, interrupt or dissolve the SEPARATE AND DISTINCT CHARGE FOR GRAVE
said meeting. THREATS OR EVEN UNDER LIGHT THREATS.
⮚ This is in the exercise of the freedom of speech, freedom ARTICLE 133 – OFFENDING THE RELIGIOUS
of expression and freedom of assembly. However, these FEELINGS
3 freedoms are not absolute. The Supreme Court has
enjoined the power of the State to regulate these ELEMENTS:
meetings through permits. 1. Committed by a public officer or employee or a
⮚ Before any of these peaceful meetings for a lawful private individual.
purpose may be held in a public place, there must be a ⮚ The first element provides for the offender.
permit coming from the local authority of the place. The The offender may be a public officer or
permit is only to regulate the said meeting and not to employee or a private individual. This is the
prohibit it. Regulate as to the time, place and to the date, only crime under Title Two where the offender
so that the public would not be in inconvenience. can be a private individual. From Article 124 to
Article 132 under Title Two, the offender can
ARTICLE 132 – INTERRUPTION OF RELIGIOUS ONLY be a public officer or employee. The
WORSHIP only exception is Article 133, offending the
ELEMENTS: religious feelings wherein the offender can
either be a public officer or employee or a
1. This is committed by an offender who is again a public private individual. The reason is, whoever may
officer or employee. be the offender, a public officer or employee or
2. Then there is a religious ceremony or manifestations a private individual, there will be the same
of any religion that is about to take place or are going offense made on the feelings of the faithful.
on. 2. That the acts must be notoriously offensive to the
3. That the offender prevents or disturbs the said feelings of the faithful.
religious worship or religious ceremony. ⮚ The second element requires that the offender
QUALIFYING CIRCUMSTANCE: performs acts notoriously offensive to the
feelings of the faithful. Acts notoriously
⮚ If the offender makes use of violence or threats in offensive to the feelings of the faithful are
committing the crime, such use of violence or threats those acts directed against their religious
would not constitute a separate and distinct charge. dogma, ritual, faith of the religion, or mocks,
Rather it is considered as an aggravating or qualifying ridicule, or scoffs of the said dogma, ritual,
circumstance which would mean an imposition of a faith or he attempts to damage the object of
higher penalty veneration of a certain religion. The law says
Q: So what if there is a barrio fiesta and the priest is about “notoriously offensive”, according to Reyes, it
to celebrate the mass. Here comes X and he went to the means that it is offensive to all kinds of
priest and pointed the gun at the priest. Then the priest was religion. If the same thing would be done to
about to celebrate the mass. At first the priest did not mind any religion they will also be offended.
him. But X intentionally pointed the gun to the head of the ⮚ Acts directed against a religion in connection
priest and said, “I will kill you if you will celebrate the mass!” with its:
So the priest did not celebrate the mass and all the faithful a. Practice,

23 |
b. Ritual, A: First element is present since X is a private individual

c. Dogma and third element, it was done during a religious
ceremony. The second is absent. The act of calling
Or acts causing damage to the object of
Father Y as the modern Padre Damaso is not an attack
veneration.
on the practice, ritual, or dogma against the Catholic
3. The said offender performs acts: religion. Neither was there damage on the object of
(1) in a place devoted to religious worship, or veneration of Catholic religion.
(2) during the celebration of any religious ceremony.
Q: There was a procession for the feast day of the patron
⮚ The third element requires that the said acts saint of a municipality. The images of the saints were
notoriously offensive to the feelings of the paraded and followed by devotees. At the end, some of them
faithful can be committed only (1) in a place were praying the rosary and singing the religious hymn.
devoted to religious worship, or (2) during the When they were in front of the house of W, a non-believer,
celebration of any religious ceremony. The law W increased the volume of his stereo to the loudest such that
uses the word “or” therefore, if the act is done one cannot hear the prayers anymore. Is W liable?
in a place devoted to religious worship, it is not
necessary that there be a religious ceremony A: Yes. First element, he is a private individual. Third
ongoing. Because it can either be with or element, it was a religious ceremony. The second
without a religious ceremony for as long as the element, however, is absent. The act of W cannot be said
place is devoted for religious worship. to be an act of ridicule, mock on the practice of the ritual
or dogma of the religion. Neither was there an attempt
Q: So what if X (A private individual) entered a catholic to cause damage on the object of veneration. It is merely
church after that the tabernacle was opened and he took out an act of annoying those who are participating in the
the chalice and inside the chalice was the host which was said procession. The crime committed is not offending
being received by Catholics during communion. He poured religious feelings. It was only an unjust vexation
the host in the floor then he destroyed them, spit on them according to the Supreme Court.
and stepped on them. Is he liable under Article 133?
A: YES. The act he performed is notoriously
offensive to the feelings of the Catholics. If the
same act is done to the object of veneration of the
Buddhists or if the same act is done to the object of
veneration of the Muslims, they will also be offended.
Therefore, it is notoriously offensive to the feelings of
the faithful because even if it is applied to other religions
they would be offended too. And it was done in a place
devoted to religious worship because it is done inside
the church even if no religious ceremony is ongoing.
Q: What if inside the PICC there was this art exhibit ongoing
and one artist, this was a controversy before right? There was
this picture of Jesus Christ and on the picture of Jesus Christ
he put a representation of a penis on his face. Is the said
artist liable under Article 133 offending the religious
feelings?
A: NO. He cannot be liable for offending
religious feelings under Article 133. Because the
PICC is not a place devoted for religious worship and the
art exhibit is not a celebration of a religious ceremony.
Therefore, since the last element is not present even if it
offends religious feelings, he cannot be held liable under
Article 133 for the absence of the 3rd element.
Q: X, in a religious ceremony, called Father Y, the modern
Padre Damaso. Is X liable for offending religious feelings?

24 |
TITLE THREE
CRIMES AGAINST PUBLIC ORDER ARTICLE 134-A – COUP D’ETAT
(Articles 134 – 160) ELEMENTS:
ARTICLE 134 - REBELLION OR INSURRECTION 1. That the offender is a person or persons belonging to
the military or police or holding any public office or
ELEMENTS:
employment;
1. That there must be (a) public uprising, and (b) taking
2. That it is committed by means of a swift attack
up arms against the Government
accompanied by violence, intimidation, threat,
2. That the purpose of the uprising or movement is strategy or stealth;
either –
3. That the attack is directed against:
a. to remove from the allegiance to said
a. duly constituted authorities of the Republic
Government or its laws:
of the Philippines,
1. the territory of the Philippines or any part
b. or any military camp or installation,
thereof; or
c. communication networks,
2. any body of land, naval or other armed
forces; or d. public utilities, or
b. to deprive the Chief Executive or Congress, e. other facilities needed for the exercise and
wholly or partially, of any their powers or continued possession of power;
prerogatives.
4. That the purpose of the attack is to seize or diminish
■ The essence or the gravamen of REBELLION is the state power.
armed public uprising against the Philippine
⮚ Committed by any person or persons belonging to the
Government coupled with the taking up of arms.
military or police or holding any public office or
⮚ In case of Rebellion, it can be committed by any employment, with or without civilian support, carried
person, or with a participation of the public. out singly or simultaneously anywhere in the
Philippines for the purpose of seizing or diminishing
THE LEADERS – Any person who
state power.
(a) promotes
■ The essence of COUP D’ETAT is a swift attack
(b) maintains or
directed against the duly constituted authorities, with or
(c) heads a rebellion or insurrection
without civilians.
THE PARTICIPANTS – Any person who
REBELLION COUP D’ETAT
(a) participates
Essence – an armed public Essence – swift attack
(b) executes the commands of others in rebellion or
Uprising against the against the duly constituted
insurrection
Government authorities
Q: There is a rebellion ongoing. X was a participant. He was
Crime of the Masses, it It can be committed with or
arrested. He was frisked and bodily searched and a loose
involves a multitude of without the participation of
firearm was found in his possession. X was charged with two
people. The Supreme Court the public because it says,
crimes—Rebellion and Illegal Possession of Firearms under
said that it is akin to a civil with or without civilian
RA 10591. Are the charges correct?
war. Public participation is support, provided it has
A: NO. The charges are wrong. Under Sec. 29, second par. of essential. been committed by any
RA 10591, the law provides that if the use of a loose firearm member of the military, the
is in furtherance of, incident to or in connection with police or those holding
Rebellion, Insurrection, or Attempted Coup d’etat, said use public office or
of said loose firearm shall simply be absorbed by these employment.
crimes. Therefore, said use of loose firearm by X who is
participating in a rebellion is simply absorbed. It is not even Purpose – Overthrow the Purpose – only to
an aggravating circumstance. Government of the diminish state power, to
Philippines and replace it destabilize the government,

25 |
with the Government of the not entirely to overthrow the said offender.
Rebels the government.
⮚ The Supreme Court said that before these common
Can only be committed by Can be committed not only crimes may be absorbed by Rebellion or coup
means of force and violence by means of force and d’etat, there must be evidence showing in what
violence but also by means manner the commission of these common crimes
of intimidation, threat, would be promoted or foster the ideals of the rebels.
strategy or stealth
NOTE:
Violation of the Articles of War cannot be absorbed by
THE LEADERS - Any person who Rebellion because both crimes cannot be heard by the same
civilian court. The crimes which can be absorbed by rebellion
(a) leads
or coup d’etat are only those which are under the jurisdiction
(b) directs or
of the same court where the case of rebellion or coup d’etat
(c) command others to undertake a coup d’etat
has been filed. Here, the violation of Articles of War is
THE PARTICIPANTS – Any member of the outside the jurisdiction of an RTC or any civillian court. It
Government who can only be heard exclusively by a military court (Gonzales
v. Abaya).
(a) participates
(b) executes the commands of others in undertaking a
coup d’etat
Q: There was this rebellion going on in the country. X was
Any person who is not in the Government service among the participants and he burned several houses in a
who: certain barangay and in one house five members of the
family died. X was arrested and charged with Rebellion,
1. Participates
Multiple murder, and Arson. Are the charges correct?
2. Supports
3. Finances A: The charges are wrong. X shall only be charged
4. abets or of Rebellion because the commission of arson and
5. aids in the undertaking of a coup d’etat murder are absorbed since the same were committed in
furtherance of rebellion. In participating therein, he had
THEORY OF ABSORPTION IN REBELLION AND
to commit these crimes.
COUP ’DETAT
Enrile v. Judge Amin
✰ What if common crimes are committed in the course
of Rebellion? Senator Juan Ponce Enrile was charged with the Following
crimes:
Theory of Absorption - Common crimes which are
committed in the course of the commission of rebellion 1. charged with Rebellion
and coup d’etat are considered absorbed if the commission 2. charged with Multiple Murder
of these common crimes was done in furtherance of,
incident to, or in connection with rebellion and coup 3. Multiple frustrated murder
d’etat. They will not constitute a separate and distinct 4. Violation of PD 1829 – obstruction of Justice
charge. But before the theory of absorption will lie, it is because he harbored or concealed then Colonel
necessary that there must be evidence showing in what Gregorio Honasan.
manner the commission of these common crimes had
advanced the ideals of the rebels. Absent that, the The Supreme Court said only one charge and it should be
commission of these common crimes cannot be absorbed rebellion. The violation of PD 1829, the multiple murder and
with rebellion and coup d’etat. multiple frustrated murder are absorbed in Rebellion under
the theory of absorption in Rebellion. The Supreme Court
⮚ Whenever in the course of committing rebellion, further said that although violation of PD 1829 is a violation
murder, homicide, arson, physical injuries, other of a special penal law, still if it is committed in furtherance
common crimes are committed, and these common of Rebellion, such violation of special penal law can still be
crimes are in furtherance to, incident to, in absorbed in the crime of Rebellion.
connection with Rebellion is considered as
absorbed in the crime of Rebellion. Therefore, only Q: There was a rebellion ongoing—a public uprising to
one charge of Rebellion should be charged against overthrow the government. Among the participants in this

26 |
public uprising done in Metro Manila was X. While they were killing of the said police officer. Absent of that evidence,
in the height of the public uprising, X saw Y passing by. X it would be a charge of murder and not rebellion.
ran towards Y and thereafter stabbed Y. Prior to this public
Rebellion is a continuing crime. Therefore, these NPA
uprising, X and his men went to Y asking that he join the
who rebelled against the Government, to overthrow the
public uprising, but Y refused. Y was pro-administration.
Government, that one time uprising is sufficient, they
The police officers who saw the act of killing chased X, and
are already considered as rebels because it is a
as X was running away, Z, another participant in the
continuing offense.
rebellion, signaled X to follow him. So X followed Z, and Z
concealed X. Six months after, the police officers were able Q: Police Officer X was on his way to the police station.
to locate their whereabouts, and they were arrested. X was He was dressed in his uniform, it was 5:00 and it was
charged with rebellion and homicide, whereas Z was charged getting a little dark. Police Officer X didn’t notice Y, a
with rebellion and with Obstruction of Justice or Violation member of the NPA allegedly, in a store drinking coffee.
of PD 1829 because he harboured and concealed X. Are the Y immediately saw Police Officer X so he followed him
charges correct? and before Police Officer X was able to enter the police
station, Y repeatedly stabbed him. X cried for help. The
other police officers in the said station came out and saw
A: Insofar as X is concerned, the charges are wrong. Y and arrested him. Y was charged with the crime of
X should only be charged with Rebellion. X’s act of Murder qualified by Treachery for having killed Police
killing Y was done incident to or in connection with the Officer X. In his counter-affidavit, Y said he should not
public uprising or rebellion because Y did not want to join be charged with Murder but with Rebellion. According
them in overthrowing the government. Hence, the act of to him, first, he is a member of the NPA. Second, since
killing was in connection with the purpose of the public the NPA had staged a public uprising once, rebellion
uprising. It is simply absorbed by the crime of Rebellion. being a continuing offense, the said public uprising
should still be considered. Third, he killed the said
Insofar as Z is concerned, the charges are also
police officer in order to promote the ideals of the NPA.
wrong. He should only be charged with one crime,
Are his arguments meritorious?
and that is the charge of Rebellion, because Z’s act of
harbouring or concealing X was made in furtherance of the A: All of his arguments have no merit. The
crime of Rebellion. Therefore, even if it is a special penal law, case is still in its initial stage. For the said act of
if the commission of a crime punished by a special penal law killing to be absorbed by rebellion, there must be
was done incident to or in connection with the crime of have been evidence presented in court to show in
Rebellion, it is also absorbed by the crime of Rebellion under what manner the said killing has fostered and
the theory of absorption. promoted the ideals of the NPA. Since it is still in
its initial stage, no such evidence has been
submitted yet. Mere self serving statements coming
Q: What if a police officer was on his way to the office, from Y that he is a member of the NPA and that he
suddenly here comes a member of the NPA, he saw the police killed the police officer to promote the ideals of the
officer and shot him. What crime is committed? is it NPA does not suffice absent any further evidence
Rebellion or murder? that will prove his allegations. So at the moment, he
must be charged with Murder.
■ Rebellion can only be absorbed common crime
such as murder, if the commission of the crimes Q: The alleged member of the NPA was charged with
was done in furtherance of Rebellion. Therefore, it Murder. The case is now on trial. Based on the
is necessary that there must be evidence shown in testimony of Y and his witnesses, it was proven that he
what way the said killing has promoted, fostered was a member of the NPA and that he killed Police
the idea of the Rebels. Absent any connection with
Officer X to foster the ideals of the rebels. What should
the commission of the common crime and the
furtherance of rebellion, the appropriate charge is
be done?
only murder, homicide, arson or physical injuries
as the case may be. A: The public prosecutor should withdraw the
case for Murder and file a new case for
A: In the case, the proper charged would be
Rebellion in order to conform with the
murder. There was no evidence showing in what way
the said NPA has promoted the ideas of the Rebels in evidence. Instead of dismissing the case, the
Court should allow this.

27 |
Conspirac Proposal Inciting to

Gonzales v. Abaya y commit
Senator Trillanes and company were charged with 2 crimes, Rebellion Art. 136 Art. 136 Art. 138
coup d’etat in the RTC of Makati and the violation of articles
of war, particularly acts of unbecoming of an officer and a Coup Art. 136 Art. 136 X
gentleman filed before the military court. While the case was d’etat
pending in the RTC of Makati, the lawyer filed a petition, a
motion, saying that the violation of the articles of war should Sedition Art. 141 X Art. 142
be absorbed by the case filed before the RTC of Makati. Can
Coup d’etat absorb the violations of article of war?
ARTICLE 138 – INCITING TO REBELLION OR
The Supreme Court ruled in the NEGATIVE. According to
INSURRECTION
the Supreme Court, for the theory of absorption to apply, it
is necessary that both cases must be heard or may be heard ELEMENTS:
before the same civilian court. In this case, the coup d’etat
1. It is committed by any person who does not take up
must be heard in a civilian court, RTC of Makati, whereas the
arms or is not in open hostility with the Government
violations of the articles of war can be heard only before a
military court. Therefore, one cannot absorb the other. 2. he incites others to uprise for any of the purposes of
Second reasoning given by the Supreme Court, for the theory rebellion (incite others to the execution of any of the
to absorption to apply, it is necessary that both crimes are acts of rebellion)
punished by the same penal statute. Third reasoning,
3. by means of speeches, proclamations, writings,
violation of the articles of war is sui generis. It is a kind of its
emblems, banners or other representations tending
own. Nothing compares to it. Therefore, it cannot be
to the same end.
absorbed by any other crime.
■ There is NO SUCH CRIME AS INCITING TO COUP
ARTICLE 136 – CONSPIRACY AND PROPOSAL TO
D’ETAT.
COMMIT COUP D’ETAT, REBELLION OR
INSURRECTION ARTICLE 139 – SEDITION
⮚ There is CONSPIRACY TO COMMIT ELEMENTS:

REBELLION when two or more persons come into 1. That the offender rise (1) publicly, and (2)
an agreement concerning the commission of rebellion tumultuously;
(to rise publicly and take arms against the
Government to any of the purposes of rebellion) and 2. That they employ force, intimidation or other means
decide to commit it. outside of legal methods;
⮚ There is PROPOSAL TO COMMIT 3. That the offenders employ any of those means to
REBELLION when a person who decides to commit attain any of the following objectives:
rebellion proposes its execution to another person it a. To prevent the promulgation or execution of
is necessary that the other person would not agree, if any law or the holding of any popular election
that person agree, then it is already conspiracy to
commit rebellion b. To prevent the National Government, or any
provincial or municipal government, or any
⮚ Conspiracy is a bilateral act which involves two or public officer thereof from freely exercising its
more persons, whereas proposal is a unilateral act or his functions, or prevents the execution of
only one person decides to commit the crime and he any administrative order;
proposes its execution to another person.
c. To inflict any act of hate or revenge upon the
■ There is a conspiracy to commit coup d’etat the same person or property of any public officer or
way of committing it. Also the proposal to commit coup employee;
d’etat.
d. To commit, for any political or social end, any
Which crimes punish mere act of hate or revenge against private persons
conspiracy/proposal? or any social class; and
e. To despoil, for any political or social end, any

28 |
person, municipality or province or the to go against what the

National Government of all its property or any government wants to
part thereof enforce, implement, or they
go against a certain public
⮚ There is a public uprising again but no taking up of
officer or employee
arms but it is done tumultuously by means of force,
intimidation or any other means outside the legal
methods.
ARTICLE 141 – CONSPIRACY TO COMMIT
Sedition, just like Rebellion, requires that there must be a SEDITION
public uprising. Unlike rebellion however, wherein the
■ There is a crime of conspiracy to commit sedition
public uprising is coupled with a taking up of arms, in
but not proposal to commit sedition. A proposal
sedition, the law does not require that there must be a taking
to commit sedition is not a punishable act
up of arms. It suffices that the said public uprising is done
under the RPC.
outside of legal methods, employing violence, threats,
intimidation, or any other unlawful means. ARTICLE 142 – INCITING TO SEDITION
■ Based on the objects of sedition, the purposes of ELEMENTS:

sedition can either be political in nature or social in
1. The offender is not a participant (does not take
nature.
direct part) in the crime of sedition
⮚ The purpose of sedition is not to overthrow the 2. He incites others to uprise for any of the purposes
government but to go against what the government of sedition
wants to implement. To go against a new law, an
administrative order or public officer or employee. 3. By means of speeches, proclamations, writings,
emblems, cartoon, banners, or other
⮚ It is a disturbance, a commotion against the lawful representation tending to the same end.
command of the authority.
■ Inciting to Rebellion or Inciting to Sedition can
⮚ The rallies that you see everyday, the rallies against only be committed by a person who is not a
a new law to be implemented, they are considered participant in the Rebellion or the Sedition,
as ordinary protest or rallies, but the moment they because if he is a participant in the Rebellion or
are carried outside of legal methods, by means of Sedition, the appropriate charge is Rebellion or
force and violence, they will become to be a Sedition as the case may be. Not merely inciting to
seditious act. Rebellion or Sedition.
Sedition is like any other rally, it only becomes seditious Inciting to Sedition is committed not only by inciting
because there is the public uprising, done tumultuously, others for any of the purposes of sedition. Different acts
by means of force, violation or any other means outside of inciting to sedition:
of the legal method.
I. Inciting others to the accomplishment of any
REBELLION SEDITION of the acts which constitute sedition by means
of speeches, proclamations, writings,
Both have a public uprising, a participation of a multitude
emblems, etc.
of people.
II. Uttering seditious words or speeches which
Public uprising must be Public uprising is not
tend to disturb the public peace
coupled with taking up of required to be coupled with
arms taking up of arms. It III. Writing, publishing or circulating scurrilous
suffices that it is carried out libels against the Government, or any of the
by unlawful or illegal duly constituted authorities thereof, which
methods. tend to disturb the public peace.
Objective – Political in Objective – can either be USE OF UNLICENSED FIREARM (PD 1866 as
nature, to overthrow the Political or social in nature. amended by RA 8294, as amended further by
Government and to replace it The offenders have no
RA 10591)
with the Government of the intention to replace the
Rebels government but they intend

29 |
RA 10591: SECTION 28 – If the violation of this act is in 1. There is a there is a projected or actual meeting of the
furtherance of , or incident to, or in connection with the Congress or constitutional committees or provincial
crime of rebellion or insurrection or attempted coup d’état, board or city or municipal council or board; and
such violation shall be absorbed as an element of the crime 2. The offender, by means of force or fraud, prevents
of Rebellion or Insurrection, or Attempted Coup d’état. such meeting
⮚ The offender here is any person: he may be a
Q: There was a public uprising carried out by means of
private individual, public officer or employee
violence or intimidation. The participants therein were
against the enforcement of a new law. Among them was X. ⮚ It is necessary that the offender prevents the
He was arrested and when he was frisked, a loose firearm meeting of the Congress or any of its committees,
was found in his possession. So X was charged with two or constitutional committees or any provincial city
crimes – Sedition and Illegal Possession of Loose Firearms. or municipal board.
X contended that the use of the loose firearm should be Q: So what if there is a meeting of the Sangguniang
absorbed. Is the contention correct? Panlungsod. It was being presided by the Vice Mayor as the
A: No. Under Section 28 or RA 10591, if the offender presiding officer of the city council. During the session of the
used a loose firearm incident to, in furtherance of, or in SangguniangPanlungsod, here comes the mayor together
connection with Rebellion or Insurrection, or with some police officers. They entered the session of and
Attempted Coup d’etat, the use of said firearm shall be disturbed and prevented the said meeting by force. What
absorbed by said crimes. Sedition had already been crime, if any, was committed?
deleted as among the crimes that will absorb the use of A: It is the violation of Article 143 – ACTS TENDING
a loose firearm. Therefore if a person is found in TO PREVENT THE MEETING OF CONGRESS AND
possession of a loose firearm during a seditious rally, SIMILAR BODIES.
you can apply either the first paragraph or third
paragraph of Section 28. ARTICLE 144 – DISTURBANCE OF PROCEEDINGS
First paragraph: If the use of said firearm is inherent ELEMENTS:

in sedition, it will be a special aggravating circumstance. 1. There is a meeting of Congress or of any of its
Third paragraph: If the use is not inherent, it will committees or subcommittees, constitutional
constitute a separate and distinct crime. commissions or committees or divisions thereof, or of
any provincial board or city or municipal council or
In the problem, the use of loose firearm is not inherent board
in the crime of sedition and therefore, there should be 2. The offender either:
two charges – Sedition and Illegal Possession of Loose - disturbs any of such proceedings; or
Firearms. - he behaves while in the presence of such
Q: What if X is a participant in Rebellion? While he was proceedings in such a manner as to interrupt
participating, he was arrested and frisked. A loose firearm the proceedings or impair the respect due it.
was found in his possession. He was charged with two cases ⮚ So here, it is necessary that the offender, who was
– Rebellion and Illegal Possession of Loose Firearm. Are the present in the meeting, either he disturbs the said
charges correct? proceeding, or while being there, he performed an
act which impair the respect due to them or which
A: The charges are wrong. The loose firearm shall
interrupted the said proceeding
be absorbed by rebellion because the use of loose
firearm is always in furtherance of, incident to, or in Q: The FREEDOM OF INFORMATION BILL was on the
connection with rebellion because rebellion is committee level. It was votation time. On the right side of the
committed through public uprising with taking up of said place or meeting, there were some observers or people
arms and such use shall always be considered as an who were coming from the media. On the left side, there
element of rebellion. The appropriate charge shall only were ordinary people who do not agree on the freedom of
be Rebellion. information bill. It was time to vote for the passage of
Freedom of Information bill, the members of the committee
ARTICLE 143 – ACTS TENDING TO PREVENT THE
were voting when suddenly some members of the media
MEETING OF THE ASSEMBLY AND SIMILAR
immediately pulled out a placard and shouted: “YES TO
BODIES
FREEDOM TO INFORMATION BILL!” Are they liable of
ELEMENTS: any crime?

30 |
A: YES. They are liable of disturbance of 2. The offender arrests or searches the member of
proceedings under Article 14 because while in the Congress
presence of the said meeting, they behaved in such a 3. At the time of the arrest, the member of
manner as to interrupt the proceedings, or impair the Congress, the Congress must be in its regular or
respect due it. special session.
4. The said member of Congress has committed a
Q: The Divorce Bill was now on its third reading. Members
crime which is not higher than Prision Mayor.
of Congress were voting on the said bill. While Congressman
Nograles was explaining his yes vote, about 20 people in the Senator Lacson before was charged with double murder— in
building who were against the divorce bill all shouted in the Dacer-Corbito murder case. Had the said case not been
chorus that the Divorce Bill is against the Constitution and dismissed by the Court of Appeals, the police officers can
the law. There was a commotion inside, so the Sergeant of serve the warrant of arrest against him at anytime because
Arms of the House of Representatives went to them and the penalty for murder is reclusion perpetua to death. Even
brought them to the holding area. Immediately, the House if the officers arrested him, they will not be liable under Art.
Speaker cited these 20 people in contempt of Congress. 145 because there will be no disturbance on Senator Lacson’s
Aside from that, can they be charged criminally? Of what functions because the crime charged carries a penalty higher
crime? than prision mayor.
A: They can be charged of Disturbance of Proceedings Q: Congressman X was charged with the crime of Frustrated
under Art. 144. There is a meeting of Congress, in fact it Murder. A warrant of arrest was issued to him by the court
is a votation. Yet, while in the presence of such body, finding probable cause. The police officers armed with the
they behaved in such a manner that interrupted the said warrant of arrest went to the House of Representatives and
proceedings or impaired the respect due it. Therefore, right after Congressman X delivered his privilege speech, the
aside from being cited in contempt of Congress, they can warrant of arrest was served on him. He was arrested and
be held liable for violation of Art. 144. bought to the police station. He was only allowed to leave
after posting bail. Are the police officers who arrested him
liable for Violation of Parliamentary Immunity?
ARTICLE 145 – VIOLATION OF PARLIAMENTARY
A: NO. They are not liable. The crime charged is
IMMUNITY
Frustrated Murder. The penalty for Murder is Reclusion
Punishes violation of parliamentary immunity Perpetua; one degree lower is Reclusion Temporal.
Therefore, since the penalty for the crime charged
TWO ACTS PUNISHED IN VIOLATION OF
against him is higher than Prision Mayor, the said
PARLIAMENTARY IMMUNITY:
warrant of arrest can be enforced and served against
I. Penalty: Prision Mayor – committed by any person him without violating the law.
who by means of force, intimidation, fraud or threat, or
Q: What if a Congressman is charged with the crime of libel
any other means and by said means, he tried to prevent
before the RTC. The RTC issued a warrant of arrest against
any member of the Congress either from attending any
the Congressman. The police officers armed with a warrant
meeting of the Congress or its committees or
of arrest went inside the walls of Congress and they arrested
subcommittees, constitutional commissions or
the said Congressman. Are the police officers liable under
committees or divisions thereof , from expressing his
this Article?
opinions or casting his vote
⮚ can be committed by anyone (private individual, A: YES, they are liable for violation of
public officer or employee) parliamentary immunity under the second.
II. Penalty: Prision Correccional – can only be Because at the time the Congress is in its regular session
committed by a public officer or employee who shall, and they arrested the said Congressman, Libel under
while the Congress is in regular or special session, arrest Article 355 is punishable only by Prision Correcional in
or search any member thereof, except in case such its minimum and medium period, therefore it is below
member has committed a crime punishable under this Prision Mayor, hence, the Congressman cannot be
Code by a penalty higher than prision mayor. arrested while the Congress is in its regular or special
ELEMENTS: session.
1. Offender should be only a public officer or Q: What if Congressman A is charged with the crime of
employee and not any individual because any attempted homicide. The fiscal found probable cause, the
individual cannot make a search or arrest a case was filed in court. The court agrees with the fiscal and a
member of the Congress. warrant of arrest was issued against Congressman A. The

31 |
warrant of arrest was issued by the judge on December 24, of them. The owner of the restaurant tried to pacify them
the police officers had possession of the said warrant of because the other customers were getting afraid. But they
arrest on December 25, on Christmas Day. While refused to be pacified. The said owner then called the police.
Congressman was inside his house, the police officers The police arrived and arrested them. They were charged
arrived and arrested the said Congressman for having been with the crime of Alarms and Scandals. Later, a Warrant of
charged of the crime of Attempted Homicide. The penalty for Arrest was issued against the said congressmen. Are the
Attempted Homicide is Prision Correcional because under police officers who arrested them liable for Violation of
Article 249, the penalty for Homicide is Reclusion Temporal Parliamentary Immunity?
and the attempted is two degrees lower, one degree is Prision
A: YES. Alarms and Scandals is only a light felony.
Mayor, two degrees lower is Prision Correcional, therefore,
The penalty is only Arresto Menor. Such act of
the penalty to be imposed in this Attempted Homicide is
enforcing the Warrant of Arrest is a disturbance in
Prision Correcional. So the police officers armed with a
the performance of their functions. Thus, the police
warrant of arrest went inside the house of the Congressman
officers are liable under Art. 145, second act.
and arrested him on Christmas Day, December 25, are the
police officers liable for violating parliamentary immunity
under Article 145?
A: YES, they are liable for violation of
ARTICLE 146 – ILLEGAL ASSEMBLY
Parliamentary Immunity. Because during
Christmas break or during Holy week break or any other TWO KINDS OF ILLEGAL ASSEMBLY:
kind of break, Congress is still in its regular session.
I. Any meeting attended by armed persons for the purpose
Because as stated in Political Law, in Constitution, when
of committing any of the crimes punishable under the
does Congress start? 4th Monday of July, that is when
RPC.
the President states his SONA. When does Congress
ends? 30 days before the start of Congress. Therefore, ELEMENTS:
during Christmas break or during Holy week break or
1. That there be a meeting, a gathering or group of
any other break, the Congress is still in its regular
persons, whether in fixed place or moving
session. Any arrest of a member of Congress during this
2. The meeting is attended by armed persons; and
time, if the said member of Congress has not committed
3. The purpose of the meeting is to commit any of
a crime where a penalty is higher than Prision Mayor,
the crimes punishable under the Code
shall be punished as violation parliamentary immunity
under Article 145. ⮚ In this case of illegal assembly, it is only necessary
that there be a meeting, the meeting must be
Q: Congressman X was charged with the crime of Frustrated attended by armed persons, under the first mode.
Murder. A warrant of arrest was issued to him by the court In here, when it says “armed persons”, it is not
finding probable cause. The police officers armed with the required that all those persons present in the
warrant of arrest went to the House of Representatives and meeting must be with arms. It suffices that one, two
right after Congressman X delivered his privilege speech, the or more, or some of them would be with arms
warrant of arrest was served on him. He was arrested and during the meeting.
bought to the police station. He was only allowed to leave ⮚ When we say “arms,” it does not only mean
after posting bail. Are the police officers who arrested him firearms, it refers to any things, knives, stones,
liable for Violation of Parliamentary Immunity? anything which can cause violence or injury to
A: NO. They are not liable. The crime charged is another person.
Frustrated Murder. The penalty for Murder is Reclusion ⮚ It is necessary however, that the purpose of the
Perpetua; one degree lower is Reclusion Temporal. meeting is unlawful – that is to commit any of the
Therefore, since the penalty for the crime charged crimes punishable under the RPC.
against him is higher than Prision Mayor, the said II. Any meeting in which the audience, whether armed or
warrant of arrest can be enforced and served against not, is incited to the commission of the crime of treason,
him without violating the law. rebellion or insurrection, sedition or assault upon a
person in authority or his agents
Q: Three congressmen— X, Y, Z, after session, decided to
have some drinks. They dropped by this exclusive ELEMENTS:
restaurant. It was a Friday night, so many people were also
1. There is a meeting, a gathering or group of
there. When they became drunk, they became very noisy and
persons, whether in a fixed place or moving
had arguments. There was a commotion between the three

32 |
2. The audience, whether armed or not, is incited to Second, they are liable for Illegal Assembly of
the commission of the crime of treason, the second kind. The meeting was attended by these
rebellion, or insurrection, sedition or direct ten soldiers who are all incited to commit sedition. Even
assault. if they are unarmed during the meeting, since they were
⮚ The said gathering of men or men, may or may not incited to commit sedition, they are liable.
be armed. It is not required that they be armed. The
Q: X, Y and Z are former military generals. They invited 20
crime will arise when the audience were incited to
soldiers. They wanted to commit robbery so as former
commit treason, rebellion, or insurrection, sedition
military generals, they planned to use their former men.
or assault upon a person in authority or his agents)
Upon arrival of the said military soldiers, they conducted a
⮚ Under the second mode of committing illegal meeting wherein X, Y and Z proposed the idea of committing
assembly, again there is a meeting, and there is no robbery for all of them to have money. All of the men agreed.
requisite that those in attendance must be armed, However, after the said agreement, they were arrested. Are
therefore, they may or may not be with arms. But it they liable for Illegal Assembly or any other crime?
is required for the crime to arise that the audience
must be incited to commit treason, rebellion, or
insurrection, sedition or assault upon a person in A: NO. They are not liable of Illegal Assembly under
authority or his agents. Otherwise, the crime will the first act. They are not armed. They are also not liable
not arise. of Illegal Assembly under the second act because although
In case of illegal assembly, the organizers or leader of the they were incited to commit a crime, it was the crime of
meeting will be criminally liable, as well as the persons Robbery, and not Treason, Rebellion, Sedition, Insurrection
merely present in the said meeting. or Direct Assault.
⮚ Under Article 146, first paragraph, last They are also not liable of any crime. They were merely
sentence – it is provided that persons who are conspiring to commit the crime of Robbery. Conspiracy is
merely present at the meeting shall be punished by not a crime by itself but only a means to commit a crime. It
Arresto Mayor, unless they are armed, the penalty is only a preparatory act. It is not punishable.
shall be Prision Correcional, therefore, whether you Q: Let’s add facts. Let’s say X, Y and Z proposed to the
are armed or not, you can be held criminally liable for twenty men the commission of robbery. They all agreed.
illegal assembly, it will only differ in the penalty. They decided to take time to plan how they will commit it.
o If you are armed - Prision Correcional Thereafter, W arrived with a big bag, and at the signal of X,
o Not armed - Arresto Mayor (lower) Y and Z, W gave each of the twenty men guns. Armed with
Q: The two heads of a telecommunication company, X and firearms, X, Y and Z told them about the command and the
Y, met with ten former military men. X and Y proposed to twenty men were confident that they will surely be successful
the soldiers to go out on the streets to uprise for the purpose in robbing now that they have firearms. They were arrested.
of preventing a new law imposing taxes on text messages. Are they liable of Illegal Assembly?
These ten former soldiers agreed. X and Y promised that A: YES. There was a gathering between X, Y, Z, the
they will provide them and others with firearms. Suddenly twenty men, and W. The 20 soldiers were armed. Their
the police arrived then arrested them. What case or cases purpose was to commit a crime punished under the
may be filed against X and Y and ten former military men? RPC. Therefore, they committed the crime of Illegal
A: First, Conspiracy to commit sedition. There is Assembly.
conspiracy because X and Y proposed to the military Even though the crime they agreed to commit is only the
men to uprise publicly to prevent a new law and these crime of robbery, or any other crime under the RPC, if
soldiers agreed. When they agreed, there is conspiracy. the said meeting was attended by armed men, it will
now be punished as an illegal assembly. While
✰ Why not inciting to sedition? Because the
conspiracy is a mere preparatory act, if the said act of
agreement was done in secrecy, not publicly
conspiracy in the meeting or gathering was attended by
through proclamation, speeches, writings so it
armed men, it will now be considered as an illegal
cannot be inciting to sedition.
assembly.
The difference between proposal and inciting:
In proposal, it is done in secrecy. Inciting is
done publicly through emblems, speeches, etc.

33 |
rebellion, and they are punished by such acts. There is

no such crime as conspiracy to commit robbery. So here,
ARTICLE 147 – ILLEGAL ASSOCIATIONS
conspiracy is a mere preparatory act which is not yet
TWO KINDS: punishable by law. For them to be punished, it is
necessary that they must at least perform an overt act
I. Associations totally or partially organized for the
directly connected to bank robbery. So here, they just
purpose of committing any of the crimes punishable
merely conspired to commit robbery without the
under the Code.
performance of any overt act directly connected to
II. Associations totally or partially organized for some
robbery. Hence, they are not criminally liable. What
purpose contrary to public morals.
they did is only a preparatory act not directly connected
to robbery.
⮚ In case of illegal associations, it is necessary that there
be a formation of a group, not merely a meeting and in Q: Why not illegal assembly?
the said association, not only the members of the A: Because in the problem, it is not mentioned that the
association should be penalized, but also the founders, persons were armed. Also, the crime of bank robbery is
directors and president of the said association or not among the crimes mentioned in the second act.
organization should be held criminally liable.
⮚ “PUBLIC MORALS” means anything that will go against Q: Why not illegal association?
public interest. A: Because what they did was only a mere meeting, it
ILLEGAL ASSEMBLY ILLEGAL ASSOCIATION was not an organization or association.
PURPOSE – of the Therefore, they are not liable of any crime.

PURPOSE – will always
association may be for Q: In the same problem, A, B, and C gathered 20 men – 10
be a violation under the
purpose of committing crimes were armed and the other 10 were not armed. Again, they
RPC. Even under the
violating the RPC or even in conspired and agreed to commit simultaneous bank robbery
second mode – inciting to
violation of special penal all over Metro Manila. After their agreement, here comes the
commit treason, rebellion,
laws, provided that it is in police officers who arrested them. Of what crime or crimes
or insurrection, sedition or
violation of special penal law, may the police officer file against them?
assault upon a person in
it must be against public
authority or his agents A: They should be charged of illegal assembly
morals
under the first act. They have the gathering of men
Necessary that there is an Not necessary that there be an and their purpose is to commit a crime punishable
actual meeting or assembly actual meeting under the RPC which is robbery and it is attended by
armed persons, even if only 10 were with arms, still it is
Act of forming or organizing
Meeting and the considered as illegal assembly. Because the law does not
and membership in the
attendance at such meeting require a number as to the persons who should be
association are the acts
are the acts punished armed. So, all of them should be held criminally liable.
punished
A, B and C, as leaders or organizers of the said meeting,
are liable for illegal assembly. Those persons who are
Q: So what if A, B and C gathered 20 persons and proposed armed, the penalty is higher than those who are not
to them the idea of committing simultaneous bank robbery armed.
all over Metro Manila, so they will commit robbery in 4
Prision Correcional – if they are armed
banks simultaneously. So these 20 men agreed to the said
commission of bank robbery, and after they have come to the Arresto Mayor – if they are not armed
agreement, here comes the police, the police got a tip from
Q: What if A, B and C gathered 1000 men and women. Their
an informer, the police arrived and they were all arrested.
intention was to incite the people to uprise against the
What crime or crimes if any should they be charged of?
government to overthrow the present administration. These
A: They could not be charged of any crime. There 1000 men and women arrived in the said designated place.
is no such thing as conspiracy to commit robbery. These 1000 men and women were arranging the chairs when
Because in robbery, robbery is only a mode of suddenly here comes the police officers who got a tip about
committing the crime, it is not a crime by itself, unlike the said meeting. The police officers immediately arrested A,
in case of treason, rebellion, there is such a crime of B and C and the 1000 men and women. What crime or
conspiracy to commit treason, conspiracy to commit

34 |
crimes if any may these 1000 men and women be charged 2. To deprive the Chief Executive or Congress,
of? wholly or partially, of any of their powers or
prerogatives.
A: They have not committed any crime. It cannot
be under the first act of illegal assembly because the said PURPOSES OF SEDITION:
1000 men and women were not armed. It cannot be
1. To PREVENT the promulgation or
under the second act of illegal assembly, because for one
execution of any law or the holding of any
to be liable under this act, note that even if not all of
popular election;
them need not to be armed, it is required that the
2. To PREVENT the National Government, or
audience must be incited to commit treason, rebellion,
any provincial or municipal government or
or insurrection, sedition or assault upon a person in
any public officer thereof from freely
authority or his agents. Here the intention of A, B and C
exercising its or his functions, or PREVENT
is to incite them to commit rebellion, BUT there was no
the execution of any administrative order;
statement in the problem that they were indeed incited
3. To INFLICT any act of hate or revenge upon
to commit rebellion. In fact, they were just arranging the
the person or property of any public officer
chairs, the meeting was only about to begin. Therefore,
or employee;
they have not yet committed any crime.
4. To COMMIT, for any political or social end,
Q: What if the jueteng lords of Southern Tagalog gathered, any act of hate or revenge against private
they gathered in Batangas. So their purpose was to define persons or any social class;
ways and means to propagate jueteng considering that the 5. To DESPOIL, for any political or social end,
government would not want to legalize jueteng, their any person, municipality, province, or the
decision was define ways and means to propagate jueteng by National Government of all its property or
using minors, those 15 years of age or below as kubrador in any part thereof
the case of jueteng, so that was the purpose of their meeting.
NOTE: The law says that there is no public uprising,
In the said meeting, they elected their would-be president,
therefore whenever there is actual commission of rebellion
vice president, treasurer, etc. So they formed an
or sedition, direct assault can never be committed because
organization, an association and they said that at the end of
the element of direct assault in whatever form is that there
the month, they would meet and define ways and means to
be no public uprising, on the other hand, a necessary
propagate jueteng. The police officers arrived and they were
element in the crime of sedition or rebellion is there be
all arrested. But they are not with arms, it is not mentioned
public uprising. Whatever may be the kind of Direct Assault,
that any of them were with arms.
there must be no public uprising. If the offender wanted to
A: The crime committed is illegal association overthrow the government and by means of force or
under Article 147. It is an association totally and intimidation, he performed acts that did not include a public
partially organized for some purpose contrary to public uprising, the crime committed will be Direct Assault of the
morals. Jueteng is in violation of PD 1602, illegal first kind. He employed force or intimidation for the
gambling as amended and it is against public morals attainment of any of the objectives of Rebellion and Sedition
because it has not yet been legalized by law. absent public uprising. If the offender makes an attempt and
employs force on a person of authority, it need not be serious
ARTICLE 148 – DIRECT ASSAULT
in nature. The mere act of pushing a person in authority in
TWO FORMS: the performance of his duties is already Qualified Direct
Assault, because under Art. 148, the act of laying hands upon
I. Without public uprising, by employing FORCE or
a person in authority will already qualify the crime. But if it
INTIMIDATION for the attainment of any of the
is intimidation or resistance, whether it is a person in
purposes enumerated defining the crimes of rebellion
authority or an agent of a person in authority, it must be
and sedition.
serious in nature.
⮚ The intention of the offender is to commit any of
the purposes of rebellion or sedition. ELEMENTS:
PURPOSES OF REBELLION: 1. The offender employs force or intimidation
1. To remove from the allegiance to the 2. AIM of the offender is to attain any of the purposes of
Government or its laws: the crime of rebellion or any of the objects of the
(a) the territory of the Philippines or any crime of sedition
part thereof; or 3. There is no public uprising
(b) any body of land, naval, or other
armed forces; or

35 |
II. Without public uprising, by ATTACKING, by 4. Lawyers while engaged in their

EMPLOYING FORCE, or by SERIOUSLY professional duties or while in the act of
INTIMIDATING or SERIOUSLY RESISTING any their professional duties
person in authority or any of his agents, while in the
Agent of a person in authority (Art 152(2))
performance of official duties, or on the occasion of such
performance. ⮚ A person who, by direct provision of law,
⮚ Most popular form of direct assault by election or by appointment by
ELEMENTS: competent authority, is charged with the
1. The offender maintenance of public order and the
a. Makes an attack, protection and security of life and
b. Employs force, property (e.g. police officer, councilors).
c. Makes a serious intimidation, or Likewise, it is stated that any person who
d. Makes a serious resistance comes to the aid of a person in authority is
⮚ If the offended party is a person in deemed an agent of person in authority.
authority, the attack or the employment 3. The third element provides that at the time of the
of force need not be serious because under assault, the person in authority is engaged in the
Article 148, the mere act of laying of hands performance of his official duties or the attack was
in the person in authority is already on occasion of such performance of official duty.
qualified direct assault. Therefore, the ⮚ Direct assault can be committed whether the
mere act of pushing a person in authority public officer or employee.
is already qualified direct assault because ⮚ Direct assault can be committed whether the
the offender already laid hands upon a public officer or agent of a person in authority
person in authority. Hence, it need not be is in the engaged in the performance of his
serious. However, if the offended party official duties or on occasion of such
is a mere agent of a person in performance.
authority, it is necessary that the ⮚ If a person in authority or his agent is engaged
employment of force must be serious. The in the performance of his official duty at the
reason is that in order to show defiance of time of the assault, regardless of the motive of
law against a mere agent of person in the offender, direct assault will always arise.
authority, it is necessary that the attack or Whether there is a personal vendetta, whether
force employed must be serious in nature. it is a public reason or whatever reason, there
⮚ If what has been done is intimidation or is always direct assault. There is defiance of
resistance, to amount to direct assault, it authority because the person in authority or
must always be serious whether the his agent is actually engaged in the
offended party is a person in authority or performance of official duty
a mere agent of a person in authority.
2. The second element requires that the assault is At the time of the assault, when the person in authority is not
against a person in authority or an agent of a person in the performance of his duties, you have to know the
in authority motive. “On occasion of such performance of official duties”
Persons in authority (Art 152) means that the reason behind the assault is the past
performance of the person in authority.
1. Any person directly vested with
jurisdiction, whether as an individual or The law requires that the offender knows that the one he is
as a member of some court or assaulting is a person in authority or an agent thereof,
government-owned and controlled because the essence of direct assault is lack of respect to
corporation, board or commission lawful authority—defiance. This does not mean that the
2. A barangay captain and a barangay offender must know Art. 152 by heart as to who the persons
chairman of authority are. It suffices that the one he is attacking is
3. Teachers, professors, or persons charged performing a duty. The law presumes that he knows that he
with the supervision of public or duly victim is a person in authority or an agent thereof because he
recognized private schools, colleges or was attacked in the performance of his duty.
institutions

36 |
Whenever in the commission of direct assault, a felony COMPLEX CRIME OF DIRECT ASSAULT:
resulted, you always have to complex direct assault with the
resulting felony because it is the reason behind the resulting ⮚ Whenever the crime of direct assault is committed,
felony. (Direct Assault with Murder, Frustrated Murder, and there is a resulting felony (e.g. death, physical
Serious Physical Injuries, etc.) There is no need to complex injuries), you always complex it.
Direct Assault with the resulting felony if the resulting felony ⮚ Under Article 48, you should always complex it
is only a light felony such as slight physical injuries. Light because from a single act, two or more grave or less
felonies are considered absorbed in Direct Assault. grave felonies had resulted. Under Article 48, Book I,
⮚ The phrase “on occasion of such performance” you have to complex it. So it could be:
means that the said assault was by reason of o Direct assault with Murder
the past performance of official duty. So “on o Direct assault with Homicide
occasion” means it is by reason of the past o Direct assault with Serious Physical Injuries
performance of official duty. o Direct assault with Less Serious Physical
4. The fourth element provides that the offender Injuries
knows him to be a person in authority or an agent ☝ But if the resulting felony is only SLIGHT
of a person in authority. So it is that the offender PHYSICAL INJURIES, you cannot complex it. It is
knows him to be a person in authority because prohibited under Article 48 because:
otherwise, he cannot be said that he defied the law, 1. It is only a light felony. Under Article 48,
he defied the authority. In the first place, he didn’t you can only complex two or more grave or less
know that the person he is attacking is a person in grave felonies but not a light felony.
authority or an agent of a person in authority. 2. Slight physical injury or light felony is
5. The fifth element requires that there be no public already absorbed in direct assault
uprising. because whenever you assault somebody,
definitely, somehow, any injury would happen
QUALIFIED DIRECT ASSAULT to him. That is why it is already absorbed in
There are three circumstances which will qualify direct direct assault.
assault: Q: What if the city mayor attended the flag ceremony. It was
1. When the assault is committed by means of a a mandate. So there was this flag ceremony attended by the
weapon; city mayor. After the flag ceremony, the mayor went to the
⮚ WEAPON - firearms, knives or any other platform and was making an announcement to the city hall
items which will inflict injury. employees. Suddenly here comes X. X went near the mayor
and shot the mayor on the head. The mayor died. What crime
2. When the offender is a public officer or employee; is committed by X?
⮚ So when a public officer or employee attacks A: QUALIFIED DIRECT ASSAULT WITH
a person in authority, it is always qualified MURDER. The city mayor was engaged in the
direct assault. performance of his official duty at the time of the assault
therefore it is direct assault. Because the city mayor was
3. When the offender lays hands upon a person in engaged in the performance of his official duty
authority regardless of the motive of X, even if it is by mayor’s past
⮚ Will only lie if the laying of hands is upon a performance of official duty or by reason of personal
person in authority. vendetta, regardless of the motive of X, the offender,
since the mayor is engaged in the performance of his
Any of these three circumstances will qualify direct assault. official duty, it is direct assault.
NOTE: The first two qualifying circumstance affects both a Now, the mayor died. Therefore there is a resulting
person in authority or agent of a person in authority. felony of murder because obviously there was treachery;
However, the third qualifying circumstance (laying hands therefore, it is direct assault with murder.
upon a person in authority) will only lie if the offended party
is a person in authority. Mere laying of hands to an agent of Now, the offender made use of a weapon, he made use
person in authority is not qualified. It will only qualify if the of a pistol gun, a firearm which is a qualifying
laying of hands is upon a person in authority. circumstance, therefore, the crime committed is
QUALIFIED DIRECT ASSAULT WITH MURDER.

37 |
(EXAM TIP: the corresponding explanation must be wounds, he survived because of medical intervention. What
complete—what is the qualifying circumstance, what is are the crimes committed by X?
direct assault, what is a complex crime)
Q: What if the city mayor has just attended a Sunday mass.
A: The crime he committed is Qualified Direct
He and his wife and children were getting out of the church
Assault with Frustrated Murder. X attacked the
when suddenly here comes X. X, onboard the motorcycle
Mayor, a person in authority, while in the performance
went straight to the city mayor and fired at the head of the
of his duty. Regardless of X’s motive behind the attack,
city mayor. The city mayor died. It was found that X was a
X is immediately liable of direct assault. X made use of
former employee of the city hall, who was dismissed by the
a knife in stabbing the mayor. Therefore, the crime
city mayor because he engaged in an anomalous transaction.
committed by him is Qualified Direct Assault. A felony
What crime is committed by X?
resulted. Obviously, there was an intent to kill. The
A: QUALIFIED DIRECT ASSAULT WITH mayor’s wounds were fatal but he survived. Therefore
MURDER. The city mayor was not engaged in the the resulting felony is Frustrated Murder qualified by
performance of his official duty. Since the city mayor treachery. Obviously it was planned by X as he brought
was not engaged in the performance of his official duty, a knife in order to kill the Mayor. Therefore, the crime
he is a person in authority; you have to know the reason, he committed is Qualified Direct Assault with
the motive of the offender. The offender was a city hall Frustrated Murder.
employee who was dismissed by the city mayor,
therefore the motive was by reason of the past
performance of the said person in authority. So it is by Q: What if the judge has just rendered judgment. After
reason of the past performance of his official duty, the rendering the judgment, after finding the accused guilty
attack, the firing was done on occasion of such beyond reasonable doubt, the accused got mad. He jumped
performance of official duty therefore the crime on the judge and he boxed the judge several times. The court
committed is direct assault. The mayor died. Obviously interpreter, the person nearest to the judge, came to the aid
there was treachery therefore it is direct assault with of the judge. This angered the accused. The accused got mad
murder. The offender made use of a firearm, which is a at the court interpreter and he boxed the court interpreter as
qualifying circumstance in direct assault therefore it is well. Thereafter the security guards arrived and took away
QUALIFIED DIRECT ASSAULT WITH MURDER. the said accused. The judge suffered serious physical injuries
whereas the court interpreter suffered slight physical
Q: What if in the same problem, here comes X, the mayor
injuries. What crime or crimes is/are committed by the
was coming out of the church, X shot the city mayor. Now X
accused, first against the judge, and second against the court
happened to be a former gardener who was dismissed from
interpreter?
the service of the household because he performed a
wrongful act while gardening. Therefore his reason was a A: As against the judge, the accused is liable of
personal vendetta. What crime is committed by X? the crime of QUALIFIED DIRECT ASSAULT
WITH SERIOUS PHYSICAL INJURIES. The
A: X committed a crime of MURDER. Obviously,
judge is a person in authority under Article 152. He was
there was treachery on the part of X.
engaged in the performance of his official duty at the
It is not direct assault because the mayor was not time of the assault therefore the crime committed is
engaged in the performance of his official duty and the direct assault. It has a resulting felony, serious physical
reason behind the assault was personal vendetta. injuries; therefore it should be direct assault with
Therefore it cannot be said that the attack was on serious physical injuries. The accused in boxing the
occasion of such performance of official duty. judge, laid hands upon a person in authority therefore it
is QUALIFIED DIRECT ASSAULT WITH SERIOUS
Q: The mayor was inside his office doing his job, signing
PHYSICAL INJURIES.
documents. Here comes X wanting medical assistance.
Although the Secretary gave him money already, he still As against the court interpreter, the accused is
insisted on talking to the Mayor. The Secretary then led X to liable of the crime of DIRECT ASSAULT. At the
the Mayor’s office and his medical certificate was given to the time the court interpreter came to the aid of a person in
Mayor. While the Mayor was reading the medical certificate, authority, who was the victim of direct assault. Note
X stood up from his seat, and without any warning, stabbed under Article 152, any person who comes to the aid of a
the mayor repeatedly. X was arrested and the mayor was person in authority is deemed an agent of a person in
brought to the hospital. Although the mayor sustained fatal authority therefore, when the court interpreter came to
the aid of the said judge, who was a person in authority,

38 |
he became an agent of a person in authority. And under ARTICLE 149 – INDIRECT ASSAULT
Article 148, any attack on an agent of a person in
authority is direct assault. Therefore the crime ⮚ Indirect assault can be committed only when a direct
committed is direct assault. The said interpreter assault is also committed
suffered slight physical injury. You cannot complex it ELEMENTS:
because it is only a light felony. Therefore it is only 1. An AGENT of a person in authority is the victim of
direct assault not complex. The said accused laid hands any of the forms of direct assault defined in Article
upon the court interpreter, would you qualify it? No, 148.
because he is mere agent of person in authority. 2. A person comes to the aid of such agent
Therefore the crime committed is only direct assault. 3. Offender makes use of force or intimidation upon
such person coming to the aid of the agent.
Q: The traffic was heavy. Many people were stuck in the said
traffic. Police Officer X, the traffic enforcer, was using his Q: What if a police officer was manning the traffic and it was
cellphone instead of manning the traffic. The people got a heavy traffic so the vehicles were stuck. What if one of the
mad. Y, one of the persons caught in the traffic, could no owners of the vehicles got mad at the police officer and he
longer control himself, so he alighted from his vehicle, went went straight to the police officer, who at the time has no
directly to the traffic enforcer and without any warning, pistol, and boxed the police officer. While he was boxing a
boxed him. The police officer tried to use his pistol but Y got police officer, a pedestrian saw the incident. The pedestrian
it and threw it away. Y was in the act of boxing the police came to the aid of the police officer. This angered the owner
officer when the barangay chairman came rushing and held of the vehicle so he, too, boxed the said pedestrian. The said
the arms of Y in order to prevent him from attacking police pedestrian suffered slight physical injuries while the police
officer X further. However, Y turned his arm on the officer suffered less serious physical injuries. What crime or
chairman and boxed him too. Police officer X suffered crimes is/are committed by the said owner of the vehicle
serious physical injuries. The barangay chairman suffered against:
slight physical injuries. What crimes were committed by Y? a. The police officer
b. The pedestrian?
A: Insofar as the police officer is concerned, the A: a. AS AGAINST THE POLICE OFFICER,
crime that Y committed is the complex crime of DIRECT ASSAULT WITH LESS SERIOUS
Direct Assault with Serious Physical Injuries. Police PHYSICAL INJURIES. The said owner of the vehicle
officer X is only an agent of a person in authority. By boxed the said police officer. The police officer is an
provision of law and appointment of competent authority, he agent of a person in authority under Article 152 because
is charged with the maintenance of public order and the he was charged with the maintenance of public order.
security of life and property. At the time of the assault, he The police officer is in the actual performance of his
was in the performance of his functions. Therefore, the crime official duty at the time of the assault therefore the
committed is Direct Assault. Even if Y laid hands on him, crime committed is direct assault. There is also a
since he is a mere agent, it will not qualify the crime. It resulting felony which is less serious physical injuries, a
resulted to serious physical injuries, therefore, the crime less grave felony; therefore we have to complex it, direct
committed is the complex crime of Direct Assault with assault with less serious physical injuries. The offender
Serious Physical Injuries. laid hands upon the police officer, however, laying of
hands will not qualify because he is a mere agent of
person in authority; therefore the crime committed
against the police officer is direct assault with less
Insofar as the barangay chairman is concerned, the
serious physical injuries.
crime that Y committed is Qualified Direct Assault.
He is a person in authority. Hence, when he was attacked by (NOTE: an MMDA officer is also an agent of a person in
Y, Y was attacking a person in authority. The crime authority because he is charged with the maintenance of
committed is Direct Assault. The slight physical injuries is public order and the protection and security of life and
simply absorbed. Y may not know that he is the barangay property)
chairman as he did not introduce himself to Y. However, the
fact that he was performing his function of trying to maintain b. AS AGAINST THE PEDESTRIAN, INDIRECT
peace and order, he was in the performance of duty during ASSAULT under Art 149. An agent of a person in
the attack, means that the crime committed is Qualified authority was the victim of direct assault. A person came
Direct Assault. to his aid who is the pedestrian. When the pedestrian
came to the aid of this agent of person in authority, he
did not become an agent of a person in authority under

39 |
Art 152 because under Art 152, a person would only ARTICLE 150 – DISOBEDIENCE TO SUMMONS
become an agent of a person in authority if he came to ISSUED BY THE NATIONAL ASSEMBLY, ITS
the aid of a person in authority. Here, the pedestrian COMMITTEES OR SUBCOMMITTTES, BY THE
merely came to the aid of an agent of a person in CONSTITUTIONAL COMMISSIONS, ITS
authority who is the police officer. Therefore, when the COMMITTEES, SUBCOMITTEES OR DIVISIONS
pedestrian came to the aid of the police officer, he did
ACTS PUNISHED:
not become also an agent of a person in authority; as
such, the crime committed is INDIRECT ASSAULT. I. By refusing, without legal excuse, to obey summons
When the pedestrian came to the aid of the police issued by the Congress or any of its extensions or any of
officer, force and intimidation were employed against its standing committees or subcommittees, by the
him so the crime committed by the owner of the vehicle Constitutional Commissions, its committees,
against the pedestrian is indirect assault. subcommittees or any other body which has the power
to issue summons.
✰ Are you going to complex it to the crime of
⮚ Under the first act, for the crime to arise, it is
slight physical injuries?
necessary that the offender’s refusal to obey the
⮚ No, because it is absorbed and it is only
summons is without any legal excuse. If there is
a light felony.
a valid reason, a legal excuse, why the offender
Under Article 149, INDIRECT ASSAULT is committed didn’t attend the said committee hearing of the
if a person in authority or an agent of a person in congress or why he failed to comply with the said
authority is the victim of direct assault. Any person summons or any of the acts under Art. 150, the
who came to his aid and that person was employed with force crime will not arise.
or intimidation by the offender. II. By refusing to be sworn or placed under affirmation
while being before such legislative or constitutional
⮚ Why is it in the given problem, when the person under body or official.
attacked is a person in authority and when someone ⮚ The public official or the person was required to
came to his aid, and that someone was also attacked, appear in the said meeting and obey the
the crime committed is direct assault against that summons, however, the moment he appeared in
someone. But when the victim of direct assault is a the said meeting, he does not want to be sworn to
mere agent of a person in authority, and someone came and he refused to be placed under affirmation
to his aid, and that someone was also attacked, the before such legislative or constitutional body,
crime is indirect assault. Art. 150 is still violated.
⮚ The reason is that the Congress amended Article III. By refusing to answer any legal inquiry or to produce
152 without correspondingly amending Article any books, papers, documents, or records in his
149. possession, when required by them to do so in the
⮚ Based on the amendment made by Congress in exercise of their functions.
Article 152, it is stated that any person who ⮚ If, however, the reason for not answering or not
comes to the aid of a person in authority is producing the books is that if he answers or
deemed an agent of person in authority. And if an produces book, he will incriminate himself in the
agent of a person in authority is attacked, such commission of the crime, then he has the right
attack is under Article 148 which is direct assault not to answer and not to produce the books.
and not indirect assault under Article 149. IV. By refusing another from attending as a witness in such
⮚ But if the victim of the said direct assault is a legislative or constitutional body.
mere agent of a person in authority, and someone ⮚ Under the fourth act punished, the said offender
who comes to his aid will not become an agent of did not fail to attend in the summons; he
a person in authority; therefore when he is also restrained another from attending as a witness.
attacked, it will only be indirect assault under He prevented another person in attending as a
Article 149. witness in such legislative or constitutional body
☝ In Statcon, when there are two provisions which are hearing.
contrary, you reconcile. So to reconcile, Article 149 or V. By inducing disobedience to a summons or refusal to be
indirect assault will only apply if the victim of direct sworn by any such body or official.
assault is a mere agent of person in authority and ⮚ NOTE that Congress where it be the House of
someone came to his aid, and that someone was also Representatives or the Senate has the power to
employed with force and intimidation. issue summons because they have the power to

40 |
investigate that is inquiry in aid of legislation. cabinet secretary with violation of Art. 150. They
Whatever be the findings in the said investigating have to go through this process.
body, it will be used in the making of a bill, a
proposal. NOTE that they don’t have the power
Q: What if there is this committee hearing, an investigation
to file a case so whatever be the product of their
about anomalous transactions entered into by a former
investigation, they will give it either to the
officials of the DENR. While the said official received the
Ombudsman or to the DOJ. It is up to the DOJ or
summons, he failed to appear because he was at St. Lukes.
to the Ombudsman to file a case because the
He was confined because he was suffering from
purpose of the Senate or the HOR is only inquiry
hypertension. Can he be held liable under Art. 150?
in aid of legislation.
A: He cannot be held liable because he has a legal
Congress, whether the Senate or the House of
excuse not to attend or to obey the summons issued by
Representatives, has the power to issue summons because
the Congress. The moment that there is a legal excuse,
under the Constitution, the legislative branch has the power
the crime will not arise BUT if his measure is without
to investigate. The investigation is not for the purpose of
any legal excuse NOTE that aside from violation of Art.
filing cases before the court because that is the job of the
150, he can also be held liable or cited for contempt by
Ombudsman and Department of Justice. The purpose of
the said committee of Congress and usually when cited
Congress in investigation is always in aid of legislation in
for contempt, he is placed in detention in the Senate
order to better the bills that they file in their body which
Blue Ribbon Committee.
thereafter become laws. With that power to investigate
comes the power to issue summons on all persons who have Q: He obeyed the summons, he appeared, he allowed
interest on the matters under investigation. himself to be sworn in however, the moment that the
Senators asked him questions, and he refused to answer the
Q: A former cabinet secretary was invited in a legislative questions. He said: I invoke my right against self-
inquiry. The inquiry was about an anomaly in the incrimination. When he was solely required to produce the
construction of certain streets, roads and highways. Based books which were confirmed to be in his possession; He
on the testimony of the secretary which he gave under oath, didn’t want to produce the said books because according to
some of the pertinent documents were in his house. He was him, the production of these books would incriminate
then ordered to produce such documents by the committee himself. Can he be held liable under Art. 150?
chair. However, he did not want to produce them because he
A: He cannot. If the answer to any of the questions or if
felt that if he were to do so, he could be charged of violation
the conduction of the same will incriminate the person
of the Anti-Graft and Corrupt Practices Act (RA 3090). So he
in the said crime; he has the right not to do so. Under
refused to produce said books. Can he be charged of violation
the Constitution, No person can be compelled to be a
of Art. 150?
witness against himself and asking him, requiring him,
ordering him to produce the books or to answer any
A: NO. He cannot be charged of violation of
questions which would incriminate himself is akin to
Art. 150. The cabinet secretary’s reason for non-
making him a witness against himself and it is
production of the said books was because if he were
unconstitutional.
to produce them, they would incriminate him to the
commission of the crime. He has all the right not to ARTICLE 151 – RESISTANCE AND DISOBEDIENCE
produce the said books and incriminate himself. TO A PERSON IN AUTHORITY OR THE AGENTS OF
SUCH PERSON
Q: What would be the remedy of Congress? They needed the
TWO ACTS:
books; otherwise the investigation will not be complete.
What should they do? I. RESISTANCE AND SERIOUS DISOBEDIENCE (PAR 1)
ELEMENTS:
A: They should file an application for a 1. The person in authority or his agent
search warrant. With the search warrant now a. is engaged in the performance of official
being obtained, police officers armed with the duty; or
search warrant may now go to the house of the b. gives a lawful order to the offender
cabinet secretary and confiscate all these pertinent 2. Offender resists or seriously disobeys such
documents that will shed light on the said person in authority or his agent
investigation. The Congressmen cannot charge the 3. That such resistance or disobedience will not
amount to

41 |
a.
direct assault (Art 148), ⮚ If there are two separate and distinct crimes,
b.
indirect assault (Art 149); or there shall be two information that will be filed
c.
disobedience to summons issued by to the court. If it is a complex crime, only one
Congress information is filed before the court.
II. SIMPLE DISOBEDIENCE (PAR 2) ⮚ If the intention is to rob, and in the occasion of
ELEMENTS: the said robbery, homicide, serious physical
1. An AGENT of a person in authority injuries, rape, intentional mutilation, arson
a. is engaged in the performance of official was committed, the crime committed under
duty; or Article 294 is robbery with homicide, robbery
b. gives a lawful order to the offender with intentional mutilation, robbery with rape,
2. The offender disobeys such order of the agent robbery with arson or robbery with serious
3. Such disobedience is not serious in nature physical injuries.
Q: What if the mayor has a project, a cleaning act operation ⮚ If the original intention was to assault the city
in order to prevent dengue. So they were cleaning up the mayor and thereafter he committed robbery,
canals. While the mayor was cleaning up the canals together there will be two acts. Because his intention
with other city hall employees, here comes Mang Pedro who was to assault and thereafter he committed the
had taken beer and was a little tipsy. So the went there and second act of taking away the personal
was shouting and making noise, disturbing the people who property of the city mayor.
were busy cleaning up the canals. And so the police officer ⮚ In case of DIRECT ASSAULT WITH MURDER
cleaning told Mang Pedro to go home because he was or HOMICIDE, it is considered a complex
disturbing the cleaning up operation. Mang Pedro, instead crime under Article 48 because based on the
of going home, merely sat nearby the canal being cleaned by single act performed, two or more grave or less
the people. What crime, if any, did Mang Pedro commit? grave offense was committed. Because with the
single act of boxing, the offender committed
A: Mang Pedro committed SIMPLE
direct assault and serious/less serious physical
DISOBEDIENCE UNDER ARTICLE 151 par 2.
injuries.
Article 151, second paragraph, simple disobedience is
committed when an agent of a person in authority is ARTICLE 152 – PERSONS IN AUTHORITHY AND
engaged in the performance of official duty or gives a AGENTS OF PERSONS IN AUTHORITY
lawful order to the offender, that the offender disobeys
Q: Who are persons in authority?
and such disobedience is not of serious nature. In the
problem, it was the police officer, an agent of a person A: The following are the persons in authority:
in authority, who gave the order to Mang Pedro and
1. Municipal Mayors
Mang Pedro disobeyed him but such disobedience was
2. Division Superintendent of schools
not serious in nature because he merely sat nearby the
3. Public and private school teachers
canal; therefore there was no showing that such
4. Teacher-nurse
disobedience is serious in nature so the crime
5. President of the sanitary division
committed is simple disobedience.
6. Provincial Fiscal
Q: Is there direct assault with robbery? Let’s say that the city 7. Judges
mayor was assaulted and thereafter he took the watch of the 8. Lawyers in actual performance of duties
mayor. 9. Sangguniang Bayan member
10. Barangay Chairman
A: No, there is no such crime. The crime committed
is not direct assault with robbery. It is already robbery Q: Who is an agent of a person in authority?
with any resulting felony, if there is one.
A: Those who are in charged with:
⮚ What if the original motive was to assault the city
▪ The maintenance of public order; and
mayor?
▪ The protection and security of life and property
⮚ If the original motive is to assault the city
mayor and not to commit robbery, but the ARTICLE 153 – TUMULTS AND OTHER
offender took the watch, there will be two DISTURBANCES
crimes because the offender already ACTS PUNISHED:
performed two acts.

42 |
I. Causing any serious disturbances in a public place, said to be tumultuous in nature therefore there must
office or establishment; be at least four persons who are armed or provided
⮚ For the said disturbance to be considered as a with means of violence for it to be considered as
violation of Art 153; it is necessary that the said tumultuous.
offender deliberately intended to disturb the said
DIFFERENCE BETWEEN ARTICLES 153, 131, & 132
meeting or public place. It was a planned
intentional act. Article 153 – tumults and other disturbances of public
II. Interrupting or disturbing performances, functions or order
gatherings, or peaceful meetings, if the act is not
Article 131 – prohibition, interruption and dissolution of
included in Arts. 131 and 132;
peaceful meetings
⮚ There is a qualification – that the interruption or
disturbance of public gatherings, functions, and Article 132 – interrupting of religious worship
peaceful meetings must not fall as a violation
⮚ Articles 131 and 132 can only be committed by a
under Art 131 (Prohibition, interruption, or
Public Officer. It cannot be committed by a private
dissolution of peaceful meetings) or Art 132
individual whereas under Art 153, it can be
(Interruption of religious worship).
committed both by a Public Officer and a private
III. Making any outcry tending to incite rebellion or sedition
individual.
in any meeting, association, or public place.
✰ What if the offender is a public officer and he disturbs a
IV. Displaying placards or emblems which provoke a
peaceful meeting. How would you distinguish if it is a
disturbance of public order in such place;
violation of Art 153 or a violation of Art 131 or 132?
⮚ First, PARTICIPATION: in Art 131 or 132, the
⮚ The third and fourth acts, whether this making of an
public officer must not be a participant in the
outcry or the displaying of placards or emblems, it is
meeting that he disturbed or interrupted. He must
necessary that such act of displaying placards or
be an outsider, a stranger in the said meeting.
emblems must be an unconscious outburst of emotion.
On the other hand, in Art 153, the said Public
It must not be intentionally calculated to incite people
Officer must be a participant, one in attendance in
to rebel or to commit sedition because otherwise, the
the said meeting.
crime would be inciting to rebellion or inciting to
sedition. ⮚ Second, PURPOSE: in Art 131, the
V. Burying with pomp the body of a person who has been mere intention of the public officer is
legally executed. to prevent a person from freely
exercising his freedom of speech and
⮚ When you say legally executed; it means that the
expression whereas in Art 153, the
said person has committed a heinous crime. The
intention of the offender is to disturb
penalty prescribed by law is death and so he was
public peace and tranquility.
killed by means of lethal injection but at present
because of Republic Act No. 9346, we have no Q: What if since RH Bill was enacted into law, there was a
more death penalty. Death Penalty is prohibited huge rally at the EDSA Shrine which was initiated by the
to be imposed. members of the CBCP. They were against this law and they
⮚ But in burying with pomp the body of the person encouraged the people to file a case before the Supreme
who has been legally executed; the said person Court questioning the constitutionality of the said law. At
must be legally executed because the said person first, the head of the CBCP spoke then after him another
has committed a heinous crime yet when he was person, a private individual spoke, the head of the
buried he was buried with such extravagance as organization spoke and he kept on attacking and attacking
if as he is a hero, as if as the government has the President. He said that the President bribed the
committed a crime in legally executing him members of the Congress in order to pass this bill so he kept
therefore it causes sympathy arising on the part on attacking and attacking the President. One of the police
of the people hence, it was a disturbance of public officers, who was assigned to maintain the peace and order
order. in the place, heard the attacks against the President. This
Police Officer was indebted to the President he owed his
WHEN TUMULTUOUS:
position to the President. He went straight to the person
⮚ If any of these prohibited acts constituting violation talking against the President and told him to stop. When he
of Art 153 is committed by more than 3 persons who didn’t stop, the Police Officer fired shots in the air and the
are provided with arms or any means of violence it is people scampered away and the peaceful meeting/gathering

43 |
was dissolved/ interrupted. What crime was committed by knowledge, he published the same if the news
the Police Officer? would endanger public order or cause damage to
the interest or credit of the state.
A: The crime committed by the Police Officer is
not Art 153 but Art 131.Because the distinctions lie in There is a bill in Congress. It should be a special penal law—
this case. First, the said Public Officer, a Police Officer the Anti-Fake News bill. Many in Congress are against the
is not a participant in the said meeting. He is a stranger, said bill. In the meantime, we have Art. 154 or Unlawful Use
an outsider in the said meeting. Second, his only of Means of Publication. If any fake news that will endanger
purpose is to prevent the said person in freely exercising public order or cause damage to the interest of the State has
his freedom of speech and expression, it is his right to been published, it is necessary that for the crime to arise, the
express his anger against the President yet the said publisher must have known it is false, and despite such
person prevented him in exercising such freedom of knowledge, they published it nonetheless.
Speech and expression therefore the Police Officer is
liable under Art 131 and not under Art 153.
For him to be liable under Art 153, let’s say that he is a
II. By encouraging disobedience to the law or to the
public officer, he is a participant in the said meeting and
constituted authorities or by praising, justifying or
while participating in the said meeting, he interrupted
extolling any act punished by law, by the same means or
the said meeting in order for him to cause a disturbance
by words, utterances or speeches.
of the said meeting. The crime is Art 153.
NOTE: Anyone who encourages disobedience to the law or
Q: There was this peaceful gathering, let’s say a public
an act which is punished by law can be held liable under Art.
meeting, a peaceful meeting about the increase of fares of the
154.
MRT and the LRT. One of the participants therein, one of the
persons therein went to the platform and took the mic and
then he incite the people, induced the people to go to the III. By maliciously publishing or causing to be published
streets, uprise, rebel against the government, to overthrow any official resolution or document without proper
the government. What crime was committed? authority, or before they have been published officially.
A: The crime committed was inciting to ⮚ NOTE: that in the third act there is the word
rebellion. Malicious. The offender must maliciously
Q: What if, he was among the participants. The head of the publish or cause to be published any official
meeting, the Public Officer was discussing about the increase resolution. If the publication of the official
of fares of the MRT and LRT. This person could no longer resolution without official authority or the
control his emotions. Suddenly he stood up and he said: publication was not done maliciously, there was
“buwisit na gobyerno na ito naiinis na ako. Dapat na tayong no intent to cause damage, it was not done
mag-rebel sa gobyerno walang ginawa kundi increase ng maliciously, Art 154 is not violated. It is
taxes”. They go and rebel against the government. What necessary that the said publication must be done
crime was committed? maliciously under the third act.
A: Tumults and other disturbances of public ⮚ What the law requires is that there is on the part
order. It is just an unconscious outburst of emotions of the accused deliberate intent to publish
not an intentionally calculated to incite people to rebel maliciously. Since they are official documents
against the government. and resolutions, the publication must be with
authority. If the same is published without any
ARTICLE 154 – UNLAWFUL USE OF MEANS OF authority, and there is malice on the part of the
PUBLICATION AND UNLAWFUL UTTERANCES offender, he can be charged under Art. 154.
ACTS PUNISHED: IV. By printing, publishing, or distributing (or causing the
I. By publishing or causing to be published by means of same) books, pamphlets, periodicals, or leaflets which
printing lithography or any other means of publication, do not bear the real printer’s name or which are
as news any false news which may endanger the public classified as anonymous.
order, or cause damage to the interest or credit of the ⮚ It is necessary that any publication has contained
State. the real printer’s name. It must have been
⮚ The offender knew that the news that he will anonymous. The publisher, the printer, the
publish is a false one and despite such author, must be stated even at the bottom.

44 |
⮚ Any kind of publication which does not bear the A: Unlawful use of means of publication, under
real printer’s name or which is classified as Article 154 second act (by encouraging disobedience
anonymous may be held liable under Art. 154. to the law or the constituted authorities). When they
distributed these pamphlets or leaflets, they encourage
Q: What if the Philippine Daily Inquirer has as its headline: disobedience to the law. It is not inciting to sedition
“KC Concepcion said Piolo Pascual is gay.” So that is the because they did not encourage the people to uprise
headline of the Philippine Daily Inquirer. It was posted. KC publicly.
never categorically stated that Piolo is gay, she only
impliedly stated it but she never categorically stated it. So
the Daily Inquirer published a false news and PioloPascual
filed a case in violation of Art 154 against the Philippine Daily
Inquirer. The Philippine Daily Inquirer knew that it is a false
news yet they still published it as news.
A: Art. 154 is not violated because whether or not
ARTICLE 155 – ALARMS AND SCANDALS
Piolo is gay it will not endanger public order. It will not
cause damage to the credit or interest of the state. ACTS PUNISHED:
Q: What if the headline of the Philippine Daily Inquirer said: I. Discharging any firearm, rocket, firecracker, or other
“Tomorrow, Megamall will be bombed from a very reliable explosives within any town or public place calculated to
source.” That was the headline of the Philippine Daily cause (which produces) alarm or danger.
Inquirer. The Philippine Daily Inquirer later on learned that
Discharging of firearms may result to different
it was false nevertheless; since it was already there they still
crimes depending on the intent of the offender.
published it and distributed it. Can they be held liable under
Art 154? 1. If a firearm is discharged in a public place
intending to cause alarm and danger –
A: Yes because the said news will endanger
Violation of Article 155 or Alarms and Scandals
public order. It can cause damage to the credit or
2. If the firearm is discharged in a public place
interest of the state. Imagine Megamall will be bombed,
with the intention to kill a person even if the
no person will go to the said place, tourists will not go to
person is not hit – Attempted homicide
the said place therefore it will endanger public order
3. If the discharge of the firearm is aimed at a
and can cause damage to the interest of the state when
particular person but there is no intent to kill
the said newspaper published it despite knowing that it
– Violation of Article 254 or Discharge of
was false news. Art 154 is violated.
Firearms
Q: What if members of the CBCP, they are against the RH II. Instigating or taking an active part in any charivari or
Law. They made leaflets, pamphlets and distributed it to all other disorderly meeting offensive to another or
persons in the church, in market.. Therein is stated: Anyone prejudicial to public tranquility.
who would obey or comply with the RH Bill which is a
Charivari includes a medley of discordant voices,
Catholic will be ex-communicated. Can they be held liable of
a mock serenade of discordant noises (not music
Art 154?
but noises) made on kettles, tins, horns, etc.
A: Yes because they encouraged disobedience to designed to annoy and insult.
the law. It has been enacted into law and by
III. Disturbing the public peace while wandering about at
encouraging the people that they would be ex-
night or while engaged in any other nocturnal
communicated if you will obey it, then you can be held
amusement.
liable for unlawful use of means of publication.
IV. Causing any disturbance or scandal in public places
Q: A new law had been enacted by Congress and signed by while intoxicated or otherwise, provided Art 153 is not
the President. A non-governmental organization was against applicable
such law. The members prepared leaflets and pamphlets that
*Note: As of now, those who are guilty of committing the
encourage the people to disobey the law. The members of the
crime of Alarms and Scandals may apply for Probation (for
NGO went to public places – outside the churches, in public
imprisonment of 6 years or below). Those involving crimes
parks, markets and would distribute these leaflets to the
against national security cannot apply.
people. The members of NGO were arrested. What crime
may be filed against them? Is it inciting to sedition or Q: People were getting out of the church. X wanted to pull a
unlawful use of means of publication? prank. He threw firecrackers which exploded the people’s

45 |
comfort away. They ran for their lives. What crime was A: The crime committed is other light threats.
committed by X? NOTE that under other light threats the offender
merely poked the firearm at the victim without
A: X can be held liable under the Art. 155. discharging or firing the firearm. If the firearm has been
Although his intention was only to pull a prank, to discharged, 3 crimes may be committed depending on
pull a joke, still, it was a disturbance. It caused the intent. It can be alarms and scandals, illegal
alarms and scandals in the said public place. discharge of firearms or attempted homicide or murder
as the case may be.
Q: You have a neighbor, it was his birthday. They rented a
Q: In a public park, there were so many people. Here comes videoke and kept on singing along till 12mn. The guests
X. X went in the middle of the park and fired shots in the air. already left, the birthday celebrant was the only one left, it’s
The people were so afraid they scampered away. What crime already 1:30am and he’s still singing at the top of his voice
is committed? with the use of the mic. His neighbors cannot sleep because
of his ugly voice. Everyone in the neighborhood could hear
A: Alarms and Scandals under Art 155. His act can
him and cannot sleep. Can he be held liable under Art 155
cause damage to public peace and tranquility.
alarms and scandals?
Q: What if in the same problem, in a public park, there were
A: Yes. He can be held liable under alarms and scandals
so many people and here comes X. X saw his enemy Y. He
because his only intention that night is to cause a
took out his firearm, aiming his firearm at Y without any
disturbance of public peace and order.
intent to kill because he knew Y would not be killed and he
discharged the firearm. What crime is committed? Q: Let’s say a person was intoxicated. He was drunk. He was
on his way home. He was singing at the top of his voice. Is he
A: The crime committed is illegal discharge of
liable for alarms and scandals?
firearms under Art. 254 RPC.
A: No because it is normal to sing at the top of his voice.
Q: What if in the same public place, X saw his enemy Y. He
pulled out his firearm with intent to kill, he aimed his Q: What if he saw this lead pipe (tubo) and upon seeing this
firearm at Y, discharged the firearm but Y was not killed. lead pipe, he would bang all the gates that he would pass by.
What crime was committed? Is he liable for alarms and scandals?
A: Attempted murder or Homicide as the case A: Yes because his acts caused damage to public peace
may be. and tranquility.
▪ In case of alarms and scandals, the only intention Q: X, the offender, was playing billiards in a billiard hall. He
of the offender is to cause damage to public peace lost in the game so he became mad. He started saying bad
and tranquility that is to cause alarm and danger. words against all the persons in the hall. There was a
That is his intention. commotion. The police arrived and arrested him. What case
▪ In Illegal Discharge of Firearms under Art 1254 his may be filed against him, Article 153 or Article 155?
intention is to threaten the said person or any other
A: Article 155, the last act (by causing any
persons. He aimed the firearm and discharges the
disturbance or scandal or public places whether
firearm pointing at a particular person absent:
intoxicated or not provided Article 153 is not
intent to kill. There was no intent to kill, it is illegal
applicable). X caused a commotion or disturbance in a
discharge of firearm.
public billiard hall, a public place. Article 153 will not
But given in the same problem, he knows his apply because it was not a planned disturbance and it
enemy, pointed the firearm at his enemy but with was not serious in nature. X did not go there in order to
intent to kill. He discharged the firearm but his deliberately cause a disturbance. Likewise, the
enemy was not killed. It is attempted homicide or disturbance causes is not serious in nature and
murder as the case may be. Since there is an intent therefore the crime committed is the last act of Article
to kill on the part of the offender even if the victim 155.
was not killed it is still in the attempted stage.
ARTICLE 156 – DELIVERING PRISONERS FROM
Q: What if in the same problem, it was in a public place, X JAIL
went to the said place, he saw his enemy Y. He went near Y,
ELEMENTS:
took out his gun and poked the gun at Y but did not discharge
the said gun. What crime is committed?

46 |
1. That there is a person confined in a jail or penal Q: Let’s say A is a prisoner convicted by final judgment. He
establishment. is serving his sentence in Muntinlupa. B his friend visited
2. That the offender removes therefrom such persons, him. B was a rich man. He planned A’s escape on his
or assisted in the escape of such person. birthday. He did this by talking to the jail warden custodian.
✰ Who is the offender? B the friend gave the jail warden custodian P500,000.00. He
⮚ The offender is any person. He can be a private gave bribe to the jail warden custodian to allow A his friend
individual or a public officer or employee provided to escape at that night. He also went to the guard at the
that he is not the custodian of the said prisoner entrance gate of the New Bilibid Prison and gave the guard
because if the offender who helped in the escape of P100,000.00, also to allow his friend to leave at that night.
the prisoner from jail is the custodian of the said That night, A escaped and left the penal institution. He went
prisoner, the crime is under Article 223 – Infidelity to the house of another friend who harbored him and
in the custody of prisoners by connivance or concealed him despite the fact that he was an escapee from
consenting with the escape, or Article 224 – a penal institution. What are the crimes committed by A (the
Infidelity in the custody of prisoner by evasion prisoner), B (the friend), jail warden custodian, the guard of
through negligence because of the element of the penal institution, and the friend who harbored him?
breach of trust and confidence reposed on him by A: A is liable of evasion of service of sentence under Art
the government. 157. He is a prisoner convicted by final judgment
✰ Who is the prisoner being referred to in delivering therefore he is liable for evasion of service of sentence.
persons from jail? He can either be:
I. A detention prisoner is a prisoner who is Q: What if he is not serving his sentence in Muntinlupa. Let’s
behind bars but the case against him is say he is just a detention prisoner. Can he be held liable for
ongoing either because the crime he evasion of service of sentence?
committed is a non-bailable offense and A: No. Evasion of service of sentence can only be
evidence of guilt is strong or the crime he committed by a prisoner convicted by final judgment.
committed is a bailable offense but he does not
have the enough funds to put up the required ▪ In the given problem, A is convicted by final
bail. The prisoners at the provincial jail, city judgment therefore A is liable for evasion of
jail, municipal jail, they are merely detention service of sentence under Art 157.
prisoners. They are not yet convicts. They are
only accused, suspects therefore they are ▪ B the friend is liable under Art 156
presumed innocent unless and until proven Delivering prisoners from jail qualified by
that they’re guilty of the crime charged. They the giving of bribe therefore his penalty will be
are merely detention prisoners. qualified because he gave bribe money inorder to
II. A prisoner that is convicted by final help in the escape of his friend. He will not be liable
judgment is one who has been convicted by for another crime of corruption of public official
the lower court and who did not appeal his because the giving of bribe is considered clearly as
conviction within the period to perfect an a qualifying or as an aggravating circumstance in
appeal then the judgment becomes final and delivering prisoners from jail.
executory. He has to serve the sentence. Or he
has been convicted then he appealed to the ▪ The jail warden custodian who received the
higher court within the period to perfect an bribed money and allowed A’s escape is liable
appeal and the said higher court affirmed the under Art 223 infidelity in the custody of
said conviction. The conviction will now prisoners. Aside from that, he is also liable for
become final and executory so he is now a direct bribery because in case of infidelity in the
prisoner convicted by final judgment. custody of prisoners, the giving and receiving of
Generally, they are those who are serving bribe is not a qualifying or aggravating
sentence in Muntinlupa. circumstance therefore the jail warden custodian
will be liable for 2 crimes; Infidelity in the custody
PENALTY IS QUALIFIED: of prisoners and direct bribery for having received
1. If violence or intimidation has been used in the the bribed money in the amount of P500,000.00.
commission of the crime; or
2. Bribery is used in delivering prisoners from jail. ▪ The guard at the entrance gate of the penal
institution will be liable for delivering
prisoners from jail. He is not the custodian and

47 |
he helped in the escape/removal of the prisoner Insofar as the custodian is concerned, he is

from jail. Therefore, he is liable for delivering liable for Infidelity in the Custody of
prisoners from jail. The fact that he received bribed Prisoners under Art. 223 and Direct
money will not make him liable of direct bribery Bribery. He is liable for Infidelity in the Custody
because in delivering prisoners from jail, it is only of Prisoners under Art. 223 because he was
a qualifying circumstance which will only increase assigned as the custodian of X and he assisted him
the imposable penalty. in escaping the penal institution. When he
connived with X, he committed the crime of
▪ The friend who harbored and concealed him will Infidelity in the Custody of Prisoners. The said
be liable under PD 1829 that is obstruction connivance was also done by reason of the bribe
of justice. It is committed by any person who received by him, therefore he is also liable for
willfully or deliberately obstructs or impedes the Direct Bribery.
investigation or the apprehension of a criminal.
✰ Why not an accessory? Insofar as Y, the friend, is concerned, he is
o Because I did not mention in the problem the crime liable for Delivering Prisoners from Jail
committed by the prisoner. For an accessory to the under Art. 156 and two counts of Corruption
crime, it is necessary that the crime committed by of Public Officials. His friend X is a prisoner
the prisoner must be treason, parricide, murder, convicted by final judgment, and he assisted in X’s
attempt to take the life of the chief executive or is removal from the penal institution through giving
known to be habitually guilty of some other crime. bribes to both the prison guard and the custodian.
I did not mention the crime committed by the He is also liable for two counts Corruption of Public
prisoner. Therefore, his liability is under PD 1829 Officials because he was the one who gave bribes.
Obstruction of Justice. He is not liable for Bribery because the crime of
Bribery was committed by the public officers who
Q: X is a prisoner convicted by final judgment. He is serving received said bribes. Bribery cannot be committed
his sentence at the New Bilibid Prison. The penalty imposed by the person giving the bribes, but by the person
upon him was reclusion perpetua because the crime he receiving the bribe.
committed was Murder. Y, his friend, visited him. X told Y
that he wanted out, so he asked him to do all means possible Insofar as the prison guard at the front gate
in order to help him get out of the said penal institution. of the penal institution is concerned, he is
Since Y was an influential man for he was very rich, he went liable for Delivering Persons from Jal under
to the custodian of his friend X the next day. Y offered the Art. 156 qualified by Bribery. He is not the
custodian 1 million pesos in exchange of X leaving the penal custodian of X, but he assisted in his removal from
institution that night. Seeing the case full of money, the the penal institution. Therefore, he is liable for
custodian was tempted and he thereafter accepted the cash Delivering Persons from Jail, and since he is a
and he promised that he will assist the removal of X from the public officer who received bribes from Y, his
penal institution that night. Y thereafter talked to the guard penalty for Delivering Persons from Jail under Art.
at the front of the penal institution and told the guard that 156 is qualified by Bribery.
the custodian had already allowed his friend X to leave, and
if he was also to allow X to leave, he would be given 1 million Q: X is a detention prisoner. He was charged with the crime
pesos as well. Seeing the money, the said prison guard was of Murder and the said case was ongoing trial. The court
tempted. That night, X was able to successfully escape the assigned Jail Guard Y to be his custodian. Y placed
penal institution. What crime or crimes were committed by handcuffs on X and brought him to the RTC hearing his
X, Y, the custodian, and the prison guard? case. It was 8:00 am, and after bringing X to the
courtroom, the jail guard went outside and talked with
other jail guards. At 8:20, the girlfriend of X came. She
A: Insofar as X is concerned, he committed
went to X and talked to him. At exactly 8:25, before the
Evasion of Service of Sentence under Art. hearing started, both X and his girlfriend stood up and with
157. He is a prisoner convicted by final judgment. the use of a big hat given by the girlfriend to X, X was able
He left the penal institution. Therefore he is liable to cover his face and they left the courtroom and the Hall of
for Evasion of Service of Sentence under Art. 157. Justice unnoticed. At 8:30, the hearing started. When the
Since he was able to leave in connivance with the case of People vs X was called, X was not there. What crime
employees of the penal institution, his penalty will or crimes have been committed by X, the girlfriend and the
jail guard?
be qualified.

48 |
A: Insofar as X is concerned, since he is a mere detention prisoners. For evasion of sentence to arise,
detention prisoner, X did not commit any crime. the prisoner who has escaped must be a prisoner
The law still presumes him to be innocent until proven convicted by final judgment.
guilty.
Under Art 157, the said prisoner the said prisoner
Insofar as the girlfriend is concerned, she is liable must be serving which involves deprivation of
for Delivering Prisoners from Jail under Art. 156 liberty and he escapes during the service of his
because she assisted in the removal of her boyfriend from
sentence by evading the service of sentence.
the courtroom. Although the courtroom is not a penal
institution, it is deemed an extension of the penal The law says, it is a prisoner serving his sentence
institution. which involves deprivation of liberty. It is necessary
that the sentence imposed on him must involve
Insofar as the jail guard is concerned, he liable for
Infidelity in the Custody of Prisoners under Art. deprivation of liberty either it is behind bars or he
224 by Evasion or Negligence. The jail guard was has been convicted of a crime wherein the penalty
negligent because it was his duty to never lose sight of a is destierro. Even if the penalty prescribed is
prisoner the moment he removes the said prisoner from destierro, the moment he enters the place wherein
jail. His talking to his friends after placing X in court was a he is prohibited from entering in the judgment of
deliberate non-performance of his sworn duty to guard the the court, he also committed evasion of service of
prisoner. There was negligence on his part amounting to
deliberate non-performance of his sworn duty. sentence.
▪ Destierro under Art 27; Destierro is also a

penalty which involves deprivation of
ARTICLE 157 – EVASION OF SERVICE OF liberty although partial not complete
SENTENCE deprivation of liberty because the offender
or the convict is not allowed to enter a
ELEMENTS: place designated in the judgment of the
1. That the offender is a convict by final judgment. court. The moment he enters the said
2. That he is serving his sentence which consists in place, he commits evasion of service of
deprivation of liberty. sentence.
3. That he evades the service of his sentence by escaping Q: X is a prisoner convicted of a final judgment. Y is a
during the term of his sentence. frequent visitor of X. Because of his frequent visits to X, Y
has already befriended the custodian of X and as such, the
✰ Who is the offender? custodian no longer be strict with Y in bodily searching him
⮚ A prisoner convicted by final judgment. when he visits. One time, Y visited X and the custodian did
⮚ It cannot be committed by a mere detention not perform bodily search on him. Y was able to get inside
prisoner because he has no sentence to evade and smuggled two knives – one for X and one for Y. They
because he is not yet convicted. Article 157 will not pointed the knives at the throat of the custodian and because
apply to him. of this X was able to escape. What are the crimes committed
by X, Y, and the custodian?
PENALTY IS QUALIFIED if such evasion or escape takes
place: A: X, a prisoner convicted of final judgment is
liable for evasion of service of sentence under
1. By means of unlawful entry
Article 157 qualified by intimidation. He is a
2. By breaking doors, windows, gates, walls, roofs or
prisoner convicted by final judgment, his sentence
floors;
involves deprivation of liberty, and he evaded service of
3. By using picklocks, false keys, disguise, deceit,
sentence by escaping during the term of his sentence.
violence or intimidation; or
His penalty is qualified by intimidation because in order
4. Done through connivance with other convicts or
to escape, he pointed the knife at the custodian.
employees of the penal institution.
Y is liable for delivering prisoners from jail
Q: You often read in the newspapers, heard over the radios,
under Article 156 qualified by intimidation.
watch on TV, 5 prisoners escaped from the Caloocan city jail,
There is a person confined in a penal institution, X. Y
10 prisoners escaped from Palawan Provincial Jail. Did they
assisted in the escape, he removes X from the penal
commit evasion of service of sentence?
institution. Since the said removal was done by
A: No. These persons did not commit evasion of service intimidation for pointing a knife at the custodian
of sentence under art 157 because they are merely therefore the penalty is qualified.

49 |
The custodian is liable for infidelity in the A: X will be charged of violation of Article 158 or
custody of prisoner by evasion through evasion of service of sentence in times of
negligence under Article 224. The custodian was disorder.
negligent in his duty. It was his duty to frisk and bodily
In case of conviction, the penalty that will be
search any visitor. Failure to do so would amount to
imposed on him will be equivalent to 1/5 of the
deliberate non-performance of his duty, not a mere
remainder of his original sentence but in no case to
laxity.
exceed six months.
ARTICLE 158 – EVASION OF SERVICE OF
SENTENCE ON THE OCCASION OF DISORDERS,
CONFLAGRATIONS, EARTHQUAKES, OR OTHER Q: What if there was this earthquake, X was a prisoner
CALAMITIES convicted by final judgment. Everything was shaking and
because of the earthquake, X escaped the penal institution.
ELEMENTS:
He went to the house of his mother. That night while
1. That the offender is a convict by final judgment who watching the television, he saw the president
is confined in a penal institution. announced/declared that the calamity had already
2. That there is a disorder resulting from – ceased/passed away. Within 48hrs, he returned. What is the
a. Conflagration effect on his criminal liability?
b. Earthquake
A: If the said convict escaped and returned to the proper
c. Explosion
authorities within 48hrs, there shall be a credit or a
d. Similar catastrophe
deduction from his sentence. There is 1/5
e. Mutiny in which he has not participated
deduction/credit from his sentence. Under Art 98
3. That the offender evades the service of his sentence
this is special time allowance for loyalty. He was too
by leaving the penal institution where he is confined,
loyal to the government that even if he already left the
on the occasion of such disorder or during the mutiny.
penal institution he still returned; such kind of loyalty
4. That the offender fails to give himself up to the
must be rewarded.
authorities within 48 hours following the issuance of
a proclamation by the Chief Executive announcing Q: What if 48 hrs had lapsed, still he did not return. What is
the passing away of such calamity. the effect of his criminal liability?
A: There will be an additional penalty imposed
⮚ It is required under Article 158 that the prisoner is
on him which is 1/5 on the basis of the remainder of his
serving his sentence in a penal institution. In Article
sentence but note that it shall not exceed six months.
157, all the law requires is that the prisoner convicted of
final judgment must be serving a sentence which Q: There was this earthquake, everything was shaking. He
involves deprivation of liberty. Therefore, a person just hid under the table. He did not leave the penal
sentenced with Destierro can commit violation of institution. He was so loyal to the government that he did not
evasion of service of sentence under Article 157 but not even think to leave. Will he be given credit?
158 because the law requires that he must be behind
A: Yes. RA 10592: based on this amendment, if the
bars.
prisoner, in times of disaster or calamity, stayed in the
⮚ In this kind of evasion of service of sentence under Art prison, he did not leave, there is a greater deduction, he
158, the crime will arise not upon the act of leaving the is given 2/5 deduction from the term of his
penal institution but upon the convict’s failure to sentence because he is more loyal because he did not
return/to give himself to the proper authorities within leave the penal institution despite the disorder or
48 hours. That is only when the crime will arise. calamity.
Q: X was convicted of final judgment and was serving his Q: What if the prisoner is a mere detention prisoner? There
sentence in a penal institution. There was a strong was an earthquake and all the detention prisoners in the city
earthquake. He left the penal institution and stayed at his jail left. Two days after leaving, X heard that the president
mother’s home. After two days, he saw on television the announced that the earthquake had lapsed. The President
president announcing the passing away of earthquake. then announced that the prisoners must give themselves up.
Despite such knowledge, he did not return. What is the crime X followed. Within 48 hours, he returned. What is the effect
committed? on his criminal liability?
A: Article 98 in relation to Article 158 had already been
amended by RA 10592. Based on this amendment, if a

50 |
prisoner undergoing a preventive imprisonment, left conditional pardon, it means it is incumbent

the penal institution in times of calamities and returned upon him to comply to all of the strict
within 48 hours, he will have the same benefit. 1/5 conditions. The moment he violates any of the
deduction from the term of his sentence in case he is terms and conditions he commits evasion of
convicted. service of sentence because it shows that he
just accepted the conditional pardon so as to
Q: What if he did not leave? What is the effect?
free himself from taking place behind bars.
A: Likewise, by the amendment of RA 10592, such
detention prisoner shall be given a deduction of 2/5 ✰ Is violation of conditional pardon a substantive
from the term of his sentence in case he is convicted. offense or not?
⮚ It depends. If you will look at Art 159, there are
☝ This benefit of Special Allowance for loyalty will apply
2 situations.
not only to a prisoner convicted by final judgment but
also to a mere detention prisoner. They will have the ⮚ Under Art 159, if the penalty remitted by the
same deduction. 1/5 if they left and returned. 2/5 if they grant of pardon does not exceed 6yrs, the
did not leave. moment he violates any of the conditional
pardon, there is a new penalty imposed upon
☝ Remember that Article 158 will only apply to a prisoner
him that is prision correccional minimum 6
convicted by final judgment and not to a detention
months and 1 day to 2 years and 4 months. A
prisoner because only the benefit will apply to him.
new penalty is imposed on him therefore in
Insofar as evasion of service of sentence is concerned, it
this case, violation of the conditional pardon is
shall only be applied against a prisoner convicted by
a substantive offense because a new penalty is
final judgment.
imposed on him.
Q: X is merely a detention prisoner in a penal institution. ⮚ BUT on the second part of Art 159, if the
There was a calamity so he left. But despite the lapse of 48 penalty remitted is more than 6 years; no new
hours since the proclamation of the president of the passing penalty is imposed on him for having violated
away of such calamity, he failed to return. The police found the terms of the pardon. He is only required to
him two years later and arrested him. Can he be charged serve the remainder of the sentence. In this
under Article 158? case, violation of the conditional pardon is not
A: No because he is not yet a prisoner convicted by final a substantive offense because there is no new
judgment. The benefit only applies but the violation of penalty imposed for the commission of the
Article 158 will not apply. crime.
ARTICLE 159 – EVASION OF SERVICE OF

SENTENCE BY VIOLATION OF CONDITIONAL ARTICLE 160 – COMMISSION OF ANOTHER
PARDON CRIME DURING SERVICE OF PENALTY IMPOSED
ELEMENTS: FOR ANOTHER PREVIOUS OFFENSE
1. The offender was a convict ELEMENTS:

2. He was granted a conditional pardon by the Chief 1. The offender was already convicted by final judgment
Executive of one offense.
3. He violated any of the conditions of such pardon 2. He committed a new felony before beginning to serve
TWO KINDS OF PARDON: such sentence or while serving the same.
1. Absolute Pardon which totally extinguishes the ✰ Who is a quasi-recidivist?

criminal liability
⮚ A quasi-recidivist is any person who shall commit a
2. Conditional Pardon which partially extinguishes
felony after having been convicted by final
criminal liability.
judgment before serving his sentence or while
⮚ Conditional Pardon is said to only partially serving his sentence.
extinguish criminal liability because the said
pardon is subject to strict terms and
⮚ Under Article 160 it is stated that the maximum penalty
conditions. Therefore, there must be an
prescribed by law shall be imposed therefore it is a
acceptance in the part of the prisoner granted
special aggravating circumstance.
pardon. The moment he accepts the

51 |
⮚ Article 160 is a misplaced article because book 2 is

about felonies and Article 160 is a special aggravating
circumstance.

52 |
TITLE FOUR 1. That there be false or counterfeited coins

2. That the offender either made, imported or uttered
CRIMES AGAINST PUBLIC INTEREST
such coins.
(Articles 161 – 189) 3. That in case of uttering such false or counterfeited
coins, he connived with the counterfeiters or
ARTICLE 161 – COUNTERFEITING THE GREAT
importers
SEAL OF THE GOVERNMENT OF THE
PHILIPPINE ISLANDS, FORGING THE PUNISHABLE ACTS:
SIGNATURE OR STAMP OF THE CHIEF
I. Counterfeiting (imitation of false coins) is
EXECUTIVE
committed by any person who shall imitate a genuine
ACTS PUNISHED: and authentic coin making it appear that it is a true,
genuine, and authentic coin. The offender copies the
I. Forging the Great Seal of the Government of the
peculiar design of the coin and makes a spurious one out
Philippines.
of it.
II. Forging the signature of the President.
● The coins which may be the subject of
III. Forging the stamp of the President.
counterfeiting may be any coin so long as it is
authentic and genuine. It can be a coin of present
⮚ Art 161 punishes the person who forges the great seal of circulation, a vintage coin, a coin of foreign
the Philippines, signature of the chief executive and currency.
forging the stamp of the chief executive. II. Importing false coins is committed by any person
⮚ Art 161 is the crime when the person is the one who who shall bring into the Philippine ports any false and
committed the forgery, but if the offender is not the one counterfeited coins. It is not necessary for the offender
who forges the great seal, signature but he knows that to be liable that he shall circulate the false coins because
the document contain a forge stamp, signature of the there is a third act of uttering false coins.
President and despite such knowledge that it was a III. Uttering false coins is committed by any person who
forgery he makes use of the same, liability is under 162. shall circulate, give away to another, pass from one
ARTICLE 162 – USING FORGED SIGNATURE OR person to another any counterfeited or false coins.
COUNTERFEIT SEAL OR STAMP (Art 162) Q: A is in possession of a coin which was of legal tender
ELEMENTS: during the time of Marcos in 1972. It was a proven genuine
coin. He copied the said coin and made a spurious one out of
1. That the Great Seal of the Republic was counterfeited it. Is he liable under Art 163?
or the signature or stamp of the Chief Executive was
forged by another person. A: Yes he is liable for making and importing and
2. That the offender knew of the counterfeiting or uttering false coins under Article 163.
forgery. Q: What if while he was in possession of the said coin; he
3. That he used the counterfeit seal or forged signature took out a part of the metal content of the said coin. Can he
or stamp. be liable for Mutilation of coins under Art 164?
⮚ Art 162 punishes the person who, despite knowledge of A: No, he cannot because in Art 164 or mutilation of
the forged signature, stamp, or great seal of the coins, it is necessary that the coin subject of mutilation
Republic of the Philippines still he makes use of the must be of legal tender. It must be in present currency
same document. because otherwise, it cannot be said that the public has
been deceived.
Q: In an official document, the signature of the President
was forged by A then it was given to B. B knew that it was a ARTICLE 164 – MUTILATION OF COINS
forgery nevertheless he made use of the same. What crime ACTS PUNISHED:
was committed?
I. Mutilating coins of the legal currency, with the further
A: A committed a crime under 161. And B requirement that there be intent to damage or to
committed a crime under 162. defraud another.
ARTICLE 163 – MAKING AND IMPORTING AND II. Importing or uttering such mutilated coins, with the
UTTERING FALSE COINS further requirement that there must be connivance with
the mutilator or importer in case of uttering.
ELEMENTS:

53 |
Mutilation is the act of taking off a part of the metal content ⮚ Under the first act, the offender is in
by filling it or substituting it for another metal of inferior possession of the false, mutilated,
quality. The offender gathers the metal dust that he has counterfeited coin. It is another person who
taken off from the said coin. While the offender took out a counterfeited the coin. The offender is only in
part of the metal coin, he is in effect diminishing the intrinsic possession of it but in order for him to be held
value of the said coin therefore, anyone who would be given liable; he must have the knowledge that the
the said coin would be deceived of the this crime hence a coin is counterfeited or mutilated and despite
crime in violation of public interest is committed. having such knowledge; he has the intent to
utter, circulate, pass away, to give away to
● The crime would only apply if the coin mutilated is
another the said coin. Possession includes
one which is in present circulation or currency. It
actual and constructive possession.
does not apply if the coin is an old coin or coin of
II. Actually uttering such false or mutilated coin knowing
foreign currency. This is because if the coin is old
the same to be false or mutilated.
and vintage or of foreign currency, even if a part of
ELEMENTS:
metal was scrapped off, the public will not be
1. Actually uttering, and
deceived because it is not used as a medium of
2. Knowledge.
exchange.
⮚ In the second act it is the act of actually
Q: There were 3 children/adults. They were playing kara- circulating or uttering the counterfeited coin
krus. So they toss the coin, however before doing that, they despite knowledge that it is counterfeited or
would scratch the coin on the steel therefore the metal mutilated.
content of the coin is diminished. Can they be held liable
under Art 164? Q: What if A is under surveillance, reports came to the police
that he had been circulating false coins. A went to the bakery
A: No. because there was no intent to gather the metal store, he bought bread worth P 50.00. He gave the store
dust of the said coin. owner 5 P 10.00 counterfeited coins. Thereafter, after giving
the counterfeited coins, he immediately left. The police
✰ Can they be held liable of any crime?
arrived and A was gone and it was the owner of the store who
⮚ Yes. They can be held liable under PD 247
is left. The police officer asked the owner of the store to open
⮚ PD 247 punishes any person who willfully or knowingly the cash bin. There they saw the 5 P 10.00 coins which were
defaces, mutilates, tears, burns or destroys any currency counterfeited. They arrested the owner of the store. Is the
notes or coins issued by the Bangko Sentral ng Pilipinas. owner of the store liable under Art 165?
⮚ In case of violation of PD 247 it is not required that there
is intent to mutilate on the part of the offender. It is not A: No he is not liable of selling of false coins or
required that the offender has the intent to gather the mutilated coins, without connivance under
metal dust of the coin although these are required under Article 165. First, he was caught in possession.
Art 164. ✰ Was there possession?
Q: In a P 1000.00 bill, a person put his cell phone no. on it. ⮚ Yes. The counterfeited coins were found in
Is he liable under PD 247? his cash drawer. Possession does not only
mean physical or actual possession.
A: Yes he is liable under PD 247.
Possession means constructive possession
⮚ But PD 247 is akin to a dead law because no one has which means that the counterfeited or
been prosecuted by it. mutilated coins are in his control and
custody. Therefore the first element of
ARTICLE 165 – SELLING OF FALSE OR possession is present.
MUTILATED COIN, WITHOUT CONNIVANCE
✰ Was there intent to utter the counterfeited coins on
ACTS PUNISHED: the part of the said owner?
⮚ Yes. The fact that he placed it in the cash
I. Possession of coin, counterfeited or mutilated by
drawer means he can use it to buy another
another person, with intent to utter the same, knowing
thing or as a change to the people who will
that it is false or mutilated.
buy from his bakery therefore circulation
ELEMENTS:
has a way from one person to another.
1. Possession,
Therefore the second element is also
2. With intent to utter, and
present.
3. Knowledge

54 |
✰ How about the third element of knowledge on his a. Using any of such forged or falsified
part the coin was counterfeited? instruments; or
⮚ The third element is absent evidently b. Possessing with intent to use any of such
based on the facts that the store owner has forged or falsified instruments.
no knowledge that the coins are An instrument is payable to bearer when it can be
counterfeited. In fact he gave bread worth transferred by mere delivery.
P 50.00. He was also deceived. If he had
only known that the coins were e.g. Check payable to cash. Whoever is in
counterfeited, he would not have given possession of the said check can come to the bank.
bread worth P 50.00. It can be transferred by mere delivery.
Therefore, he may not be held liable On the other hand a check is payable to order where it can
because, although he is in possession, and be transferred by mere delivery when there is an
he has the intent to utter the coins; he endorsement coming from the person named or specified
does not have the knowledge that the said therein. It is an instrument payable to the order of a specific
coins were counterfeited. person or his order.
ARTICLE 166 – FORGING TREASURY OR BANK e.g. Payable to the order of Charmaine. This cannot
NOTES OR OTHER DOCUMENTS PAYABLE TO be transferred from one person to another without
BEARER; IMPORTING, AND UTTERING SUCH an order coming from Charmaine.
FALSE OR FORGED NOTES AND DOCUMENTS ARTICLE 169 – HOW FORGERY IS COMMITTED:
ACTS PUNISHED: 1.
By giving to a treasury or bank note or any instrument
I. Forging or falsification of treasury or bank notes or payable to bearer or to order mentioned therein, the
other documents payable to bearer. appearance of a true and genuine document.
II. Importation of such false or forged obligations or notes. 2. By erasing, substituting, counterfeiting, or altering by
III. Uttering of such false or forged obligations or notes in any means the figures, letters, words, or sign
connivance with the forgers or importers. contained therein.
⮚ If what has been falsified is a coin, you call it
ARTICLE 167 – COUNTERFEITING, IMPORTING,
counterfeiting.
AND UTTERING INSTRUMENTS NOT PAYABLE TO
⮚ If it is the stamp, seal or signature of the President,
BEARER
you call it forging.
ELEMENTS: ⮚ If it is treasury or bank notes, it is considered as
1. That there be an instrument payable to order or other forging.
document of credit not payable to bearer. ⮚ It is a document, you call it falsification.
2. That the offender either forged, imported or uttered FALSIFICATION (ART 170, 171, 172)
such instrument.
3. That in case of uttering, he connived with the forger ⮚ In case of FALSIFICATION, to amount to falsification,
or importer. it is necessary that the writing that is falsified must be a
document in a legal sense of the word – one which
ARTICLE 168 – ILLEGAL POSSESSION AND USE is capable of making rights and/or extinguishing an
OF FALSE TREASURY OR BANK NOTES AND obligation. Therefore, it must be complete in itself so
OTHER INSTRUMENTS OF CREDIT that it would be sufficient to convey a particular
ELEMENTS: meaning, it must be susceptible of becoming evidence of
the facts stated therein.
1. That any treasury or bank note or certificate or other
⮚ If a person is found is in possession of fake and unfilled
obligation and security payable to bearer, or any
out forms, (e.g. unfilled out forms of driver’s license,
instrument payable to order or other document of
resident certificate, etc) such person cannot be held
credit not payable to bearer is forged or falsified by
liable for falsification. Falsification of mere forms does
another person.
not amount to falsification of a public document.
2. That the offender knows that any of those
Because the said form is not yet a document in the legal
instruments is forged or falsified.
sense of the word, it is not yet complete in itself – it has
3. That he performs any of these acts –
no name, no address – an unfilled-out/up form. It is not
falsification. It is not susceptible for becoming evidence

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because there is no fact has been stated. The crime A PRIVATE DOCUMENT, one which has been executed by a
committed would be Article 176 or possession of private person, if there is no intervention of public official. A
instruments or implements which may be used for private document, however, even though executed by a
falsification but not yet falsification. private person without the intervention of a notary public or
a legally authorized person, can also become a public
Q: So what if A was found outside the building of the LTO
document. That is when the said private document is
office. He was carrying falsified unfilled-out/up forms of
submitted to the public officer and it becomes part of the
driver’s license. It was distinct, it was falsified, it was not the
public records. The moment the said private document
real driver’s license form. He was arrested by the NBI. Can
becomes part of the public records, it is now a public
he be held liable for falsification of a public document?
document and when it is issued and it is falsified, what is
A: NO. Because what he is carrying is only an unfilled- falsified is a public document and no more a private
out form. It is not yet complete in itself. It is not yet document.
capable of creating rights or extinguishing an
It is necessary to distinguish the kind of document that is
obligation. It is not yet susceptible of evidence of the
being falsified - whether it is a public, official, commercial or
facts stated thereon.
private because of the different effects.
Q: So what crime if any was committed by A?
If what has been falsified is a PUBLIC, OFFICIAL OR
A: A merely committed violation of Article 176 – that is COMMERCIAL DOCUMENT, damage or intent to cause
mere possession of instrument or implements for damage to the offended party or to any other person is not
falsification, but not yet falsification of a public an element.
document.
On the other hand, if what has been falsified is a PRIVATE
Four types of documents which may be falsified: DOCUMENT, for the crime to arise, it is necessary that there
must be damage or at least, intent to cause damage to the
1. PUBLIC DOCUMENT – a document which is issued
private offended party or to any other party.
by a notary public or competent public officer with the
solemnities required by law. If what has been falsified is a PUBLIC OR OFFICIAL
DOCUMENT, it is not necessary that there be damage or
2. OFFICIAL DOCUMENT – a document issued by a intent to cause damage. Because a public document – an
public official in the exercise of his official functions. official document - is presumed authentic and legal. It is
presumed to be “prima facie evidence” of the facts stated
3. COMMERCIAL DOCUMENT – any document therein. As such, the moment it is falsified, the crime will
defined and regulated by the Code of Commerce or immediately arise, without need that there be damage on the
any other mercantile law. part of the offended party. Because in Falsification of a
Public Document, what has been violated is the
4. PRIVATE DOCUMENT – a document, a deed or PERVERSION OF TRUTH being solemnly proclaimed by
instrument executed by a private person without the the said document. Hence DAMAGE IS NOT AN ELEMENT.
intervention of the notary public of any other person
legally authorized, by which document some
disposition or agreement is proved, evidenced or set ARTICLE 171 – FALSIFICATION BY PUBLIC
forth. OFFICER, EMPLOYEE, NOTARY PUBLIC, OR
ECCLESIASTICAL MINISTER
All official documents are public documents, but
not all public documents are considered official ELEMENTS:
documents. Before a public document may be considered 1. The offender is a public officer, employee, notary
as an official document, it is necessary that it shall be issued public, or an ecclesiastical minister.
by a public officer in the exercise of his official functions. If 2. He takes advantage of his official position.
there is a law that requires a public officer to issue the said ⮚ The offender is said to have taken advantage of
public document, then it becomes an official document. his position or office when:
a. He has the duty to make or prepare or
A private document may become public or official document
to otherwise intervene in the
if the said private document is submitted to a government
preparation of the document; or
office and the same shall be released by the custodian of the
b. He has the official custody of the
said office, it is no longer a private document but a public
document which he falsifies
document, an official document.

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3. That the said offender falsifies a document by a. He has the duty to make or prepare or to
committing any of the following modes stated otherwise intervene in the preparation of the
therein: document; or
a. By counterfeiting or imitating any b. He has the official custody of the document
handwriting, signature or rubric. which he falsifies
b. Causing it to appear that persons have
Third element: That the said offender falsifies a document
participated in any act or proceeding when
by committing any of the following modes stated therein:
they did not in fact so participate.
c. Attributing to persons who have participated ⮚ If you will look at Art. 171, it does not state the kind
in an act or proceeding statement other than of document that has been falsified, it may not be
those in fact made by them stated because it necessarily follows that the
d. Making untruthful statements in a narration of document falsified is a public or official document
facts because the offender is public officer or employee
e. Altering true dates or notary public. Therefore necessarily, the
f. Making any alteration or intercalation in a document being falsified in Art. 171 is a public
genuine document which changes its meaning official or official document.
g. Issuing in authenticated form a document
purporting to be a copy of any original DIFFERENT ACTS OF FALSIFICATION: (These acts of
document when no such original exists or falsification are also applicable in Art. 172)
including in such a copy a statement contrary I. BY COUNTERFEITING OR IMITATING ANY
to or different from that of the genuine original HANDWRITING, SIGNATURE OR RUBRIC.
h. Intercalating any instrument or note relative ✰ So what is COUNTERFEITING?
to the issuance thereof in a protocol, registry or
⮚ The offender is said to have counterfeited a
official book.
signature, handwriting or rubric if he has
4. In case the offender is an ecclesiastical minister,
imitated an official handwriting, signature
the act of falsification is committed with respect to
or rubric.
any record or document of such character that the
⮚ So there is an original handwriting or
falsification may affect the civil status of persons.
signature and the offender imitiated or
First element: The offender is a public officer, employee, copied the said original handwriting or
notary public or an ecclesiastical minister. signature.
✰ Is COUNTERFEITING the same as FEIGNING?
⮚ If the offender is an ecclesiastical minister, for him
to be liable under Article 171, it is necessary that the ⮚ Feigning a handwriting, signature or rubric
document that he falsifies must affect the civil is NOT THE SAME as counterfeiting. When
status of a person. you say FEIGNING, it means “simulating” a
handwriting, signature or rubric. That is,
⮚ If the document falsified by an ecclesiastical
making a handwriting, signature or rubric
minister will not affect the civil status of a person,
out of nothing which does not exist. It is an
he is still liable for falsification, but not under Art.
imaginable, an inexistent handwriting,
171, rather under Art. 172.
signature or rubric.
⮚ So, a priest falsified the communion certificates of
II. CAUSING IT TO APPEAR THAT PERSONS HAVE
one of the students/pupils receiving the first
PARTICIPATED IN ANY ACT OR PROCEEDING
communion, the crime committed is falsification
WHEN THEY DID NOT IN FACT SO PARTICIPATE.
under Art. 172, not under Art. 171 because a
Q: What if a notary public issued, he prepared or issued an
certificate of communion will not affect the civil
extrajudicial settlement of an estate. In the said extrajudicial
status of the said child.
settlement of an estate, it is stated that all the heirs of a
Second element: He takes advantage of his official certain decedent can already agree by themselves to
position. partition the property. So it is an extrajudicial settlement of
an estate and in it, the notary public made it appear that all
⮚ It requires that the offender takes advantage of his the 12 heirs of the decedent had participated, but in truth
official position. and in fact, two of the heirs were in another country and they
⮚ The offender is said to have taken advantage of his did not participate in the execution of this extrajudicial
position or office when: settlement of the estate. Is the notary public liable?

57 |
A: YES. The notary public is LIABLE under the 2. That he has legal obligation to disclose the truth
second act (causing it to appear that persons of the facts narrated by him
have participated in any act or proceeding when 3. The facts narrated by the offender are absolutely
they did not in fact so participate). He caused it to false
appear that A and B participated in the execution of the 4. The untruthful narration must be such as to
extrajudicial settlement of the estate, when they did not effect the integrity of the document and that the
in fact so participate. offender does so with the intent to injure or
prejudice another person
Q: A notary public issued a deed of absolute sale allegedly
⮚ It is necessary that the intention of the intention
executed by X in favor of Y selling X a property. In reality, no
of the offender must be to INJURE ANOTHER
such deal was ever executed. What crime is committed by the
PERSON.
Notary Public?
⮚ In case of making false statements in a narration
A: Falsification under the Second Act. He issued of facts, it is necessary that the offender must
in an authenticated form a document purporting to be a have the legal obligation to disclose the truth in
copy of an original deed of absolute sale when in fact no the said narration of facts. But the Supreme
such original exists. Court has ruled that if the document wherein the
If the notary public counterfeited the signature of a falsity was stated happens to be a residence
party in the said document, the notary public also certificate or a driver’s license, there is no need
becomes liable under the first paragraph – by for a law to state that only the truth must be
counterfeiting or imitating any handwriting, signature, stated therein because by the nature of these
or rubric. documents, only true statements must be stated
therein.
III. ATTRIBUTING TO PERSONS WHO HAVE ⮚ Absence of such legal obligation, then it cannot
PARTICIPATED IN AN ACT OR PROCEEDING be said that he is liable for falsification.
STATEMENT OTHER THAN THOSE IN FACT MADE
⮚ When you say legal obligation, there is a law
BY THEM
which requires him to state nothing but the truth
⮚ So under the third act, persons participated in an in the said document.
act or proceeding, they made statements therein,
however, the offender in a document may appear Q: So what if the offender, a public officer, falsified the
that these persons have made certain statements statement in his residence certificate or community tax
which were not in fact made by them. certificate. Although he stated his true name, he did not state
his address, citizenship, etc. He makes false statement of
Q: So what if in the Sangguniang Panglungsod, an ordinance facts in his residence certificate or community tax certificate,
was being passed. There was a votation, majority of the otherwise known as cedula. So he was charged with
councilors voted, two of the councilors dissented and their falsification. He contended that there is no law which
vote were NO. They just stated that they were voting in the requires him to state the truth in his residence certificate. Is
negative, but, they did not give any explanation for their his contention correct?
dissent or the vote of NO. However, in the minutes appeared
by the Sangguniang Secretary, the latter made it appear that A: His contention is wrong. According to a ruling in the
the two councilors made statements that they voted NO Supreme Court, if it is a residence certificate or
because the said ordinance is contrary to law. Is the said community tax certificate, there need not be a law which
secretary liable for falsification? requires a person to state the truth in the said residence
certificate, it is inherent in the kind of document. Since
A: YES. He is a public officer. He is the one who it is a residence certificate or cedula, it is inherent that
prepared the minutes for the SangguniangPanglungsod in this document, nothing but the truth must be stated
and he made it appear that the 2 councilors stated that – no falsity. Because it requires identification.
the said ordinance is contrary to law and in truth and
fact, they did not made those statements. So the said V. ALTERING TRUE DATES
secretary is liable for falsification. ⮚ It is necessary that what has been altered must be
a true date and in the alteration of the said true
IV. MAKING UNTRUTHFUL STATEMENTS IN A
date, the document will no longer have any effect.
NARRATION OF FACTS
VI. MAKING ANY ALTERATION OR INTERCALATION
ELEMENTS:
IN A GENUINE DOCUMENT WHICH CHANGES ITS
1. That the offender makes in a document
MEANING
untruthful statement in a narration of facts;

58 |
TWO ACTS: Intercalation – making any insertion in any

instrument or note
i. The offender makes an alteration
ii. The offender makes an intercalation in a So these acts, under ARTICLE 171, are also the very same
genuine document which changes its meaning acts punished under Art. 172.
Alteration – changes in a document ARTICLE 172 – FALSIFICATION BY PRIVATE
INDIVIDUALS AND USE OF FALSIFIED
Intercalation – there must be some insertion
DOCUMENTS
made in the said document, in a genuine
document that changed the meaning of the said THREE PUNISHABLE ACTS:
document
I. Falsification of a public, official or commercial
VII. ISSUING IN AUTHENTICATED FORM A DOCUMENT document by a private individual
PURPORTING TO BE A COPY OF ANY ORIGINAL ELEMENTS:
DOCUMENT WHEN NO SUCH ORIGINAL EXISTS OR 1. Offender is a private person or a public officer
INCLUDING IN SUCH A COPY A STATEMENT acting in his private capacity.
CONTRARY TO OR DIFFERENT FROM THAT OF THE 2. Offender commits any act of falsification under
GENUINE ORIGINAL Article 171.
3. It must be done either in a public, official, or
commercial document.
⮚ So in case of FALSIFICATION OF A PUBLIC,
OFFICIAL OR COMMERCIAL DOCUMENT
TWO ACTS PUNISHED:
by a PRIVATE INDIVIDUAL, is just the same
1. The offender issued in an authenticated form a as ARTICLE 171 – they only differ in that in
document purporting to be an authenticated Art. 171, the offender is a public officer or
copy of an original document, but no such employee.
original exists. ⮚ In ARTICLE 172, yes, the document falsified is
2. By including such copy a statement contrary to a public, official or commercial document, but,
or different from a genuine original. the offender is a private individual even if the
Q: What if a notary public issued a deed of absolute sale and offender is a private individual, since the
he said that it is an original copy of a deed of absolute sale document falsified is a public, official or
between A and B. A selling his property to B, but in truth and commercial document, DAMAGE OR INTENT
in fact, no such deed of absolute sale was executed between TO CAUSE DAMAGE IS NOT AN ELEMENT.
A and B. Is the notary public liable? II. Falsification of private document by any person
ELEMENTS:
A: YES. He is liable under the first act of falsification in 1. The document falsified is a private one.
the seventh act of the 3rd element in Art. 171. 2. There is damage or intent to cause damage
Q: What if a civil registrar issued a certificate of live birth. 3. He commits any of the act of falsification under
So here comes A. A was asking that he should be given a Article 171 except paragraph 7 (can be committed
certified copy of a certificate of live birth. In the said only by a public officer).
certificate of live birth issued by the said civil registrar, there ⮚ The document falsified is a PRIVATE
was a statement that A was an illegitimate child, but in the DOCUMENT. The offender is any person. He can
original copy of the certificate of live birth submitted to the be a private individual, he can be a private officer
office of the Office of the Civil Registrar, there was no such or employee for as long as the document falsified
statement. Is the civil registrar liable? is a private document, it necessary that there
must be damage caused to a third person or at
A: YES. He is liable under the second act of falsification least the intention of the offender is to CAUSE
in the seventh act of the 3rd element in Art. 171. Because DAMAGE.
he included in the said copy a statement contrary to or
⮚ Absence of damage or intent to cause damage,
different from that of a genuine original.
then falsification of a private document will not
VIII. INTERCALATING ANY INSTRUMENT OR NOTE arise.
RELATIVE TO THE ISSUANCE THEREOF IN A III. Use of falsified document
PROTOCOL, REGISTRY OR OFFICIAL BOOK. ⮚ A document has been falsified and the offender
uses the said document.

59 |
⮚ If the falsified document is used in a JUDICIAL incidentally his friend, for help. The clerk of court agreed and
PROCEEDING, again, DAMAGE or INTENT TO erased the received date which is April 16 and changed it to
CAUSE DAMAGE is NOT AN ELEMENT April 15. Now it appears to have been filed on time. Is the
because it is a judicial proceeding. clerk of court liable for any crime?
⮚ But if the said falsified document is used in any A: The clerk is liable of Falsification under
other transaction, this time, damage or intent to Art. 171. He is a public officer for he is an officer of
cause damage is an ELEMENT. the court. He took advantage of his public
Q: Y, the friend of X, is going to a foreign country for six position—he had access to the said document being
months. He has nowhere to leave his certificates of titles of that he was the clerk of court. He committed the
property other than to leave such in his house. He trusted X fifth act of falsification because he altered the true
much so he gave such certificates of titles to his friend for received date and erased it and thereafter ante-
safekeeping. X became interested in one of the certificates of dated it, making it appear that it was received on
titles of property of Y, particularly a condominium unit in time on April 15. Therefore he is liable under the
Makati. He wanted it to be transferred in his name. He went fifth act.
to his friend Atty. Z, a notary public. He asked him if there Q: The Vice Mayor presided over the session of the
was any way that such property can be transferred in his Sangguniang Panlungsod. The council voted for the new
name. Atty. Z is very easy and he should leave the said title ordinance. After the votation, the Secretary of the
to him and just come back the very next day. X left the Sanggunian provided the Minutes for the said session. After
certificate of title of the said condominium unit to the notary preparing the same, he distributed a copy of the minutes to
public. X went back the next day, and the notary public had each counselor. Counselor X and Y took notice that under
already prepared a Deed of Absolute Sale which says that the the minutes, there was an explanation on their no-vote. Yet,
friend Y had already sold the condominium unit to X. He told they just voted no without any explanation. Is the secretary
X to attach his signature as the vendee and insofar as the liable for falsification?
vendor Y is concerned, the notary public asked X if he knew
the signature of his friend. X said that he knew every stroke A: The secretary is a public officer for he is the
of the signature of his friend. Atty. Z told X to just affix said secretary of the Sangguniang Panlungsod. He took
signature of the vendor in the name of Y in the Deed of advantage of his official position—he was assigned
Absolute Sale as if Y sold the property to X. Thereafter, the to prepare the minutes of the session. He
notary public notarized the same. What crime or crimes have committed an act of falsification because although
been committed by X and the notary public Atty. Z? counselors X and Y participated in the session and
stated their votes, he attributed statements to
A: X is liable of Falsification under Art. 172. counselors X and Y other than those in fact made
He is liable for falsifying a public document by a by them. Therefore, the secretary is liable for
private individual. He is liable under the first act— falsification under the third act.
by counterfeiting the signature of his friend Y in the Q: X filed a case against Y for falsification because allegedly,
Deed of Absolute Sale, a public document. in a contract entered into by X and Y, Y falsified his
signature. Y disagreed and argued that X indeed signed it.
Insofar as the notary public is concerned, he During the hearing of the case, Y denied it. The prosecution
is liable for Falsification under Art. 171. The proved that Y counterfeited X’s signature by merely
notary public is a public officer and he took presenting machine copies of the contract entered into by X
advantage of his public position in committing the and Y. The court asked them to produce the original;
act of falsification. He committed the second act— however, even if they went to the notary public, since two
by causing it to appear that Y, the friend, years have already lapsed, they could no longer get the
participated in the sale transaction when in fact the original copy because it has already been submitted to the
friend did not do so. Department of Justice. Because of this, no original copy of
Q: An attorney went to the court in order to file a Motion for the contract was produced in court. With the piece of
Reconsideration for the decision of the court which evidence given, can Y be convicted of falsification under the
convicted his client, the accused. He received the judgment first act?
of the court on the promulgation of judgment which was
March 31. He filed the Motion for Reconsideration on April
16. Upon receiving his copy of the MR, he realized that he A: NO. Y cannot be convicted. To prove
filed it out of time. He wanted it to be considered by the court falsification, it is necessary to present the original
so he asked the Atty. Y, the clerk of court, which was document where the alleged counterfeited

60 |
signature was made. Whether a signature is I. Uttering fictitious, wireless, telegraph or telephone
counterfeited or original cannot be determined by message
the mere presentation of machine copies. There are II. Falsifying wireless, telegraph or telephone message
certain strokes of a signature or handwriting that III. Using such falsified message
can only be seen in an original document and not in ⮚ If the act punished is uttering fictitious, wireless,
a machine copy. If the original document which telegraph or telephone messages and falsifying
allegedly contained the counterfeited signature had wireless, telegraph or telephone messages, note that
not been produced in court, it will amount to an these can only be committed by a person working in a
acquittal on the part of the accused. There cannot department, agency or corporation which is engaged
be a conviction for falsification on the basis of a in a business of receiving and sending wireless,
mere machine copy of the document. telegraph and telephone messages.
⮚ Under the third act – using falsified wireless, telegraph
or telephone messages, this time, it can be committed
Q: X was applying for a position in the government. So he by any person.
submitted a curriculum vitae, clearances from DOJ or
Ombudsman, endorsements. So he attached the clearances. Articles 174 and 175 refer to the persons who shall
Upon submitting the same, the reviewing committee found be criminally liable in case of falsified document.
out that the clearance allegedly issued by the DOJ is falsified ARTICLE 174 – FALSE MEDICAL CERTIFICATES,
– the letterhead was falsified, the signature was forged. So X FALSE CERTIFICATES OF MERIT OR SERVICE,
was immediately charged with use of falsified document ETC
under Article 172. Is the charge correct?
⮚ Under Art. 174, if the offender is a PHYSICIAN OR
A: No. The appropriate charge is Falsification of Public SURGEON who issues a false medical certificate in
Document, not use of a falsified document. The the practice of his profession, he becomes liable
Supreme Court said that a person in possession of a under Art. 174.
falsified document is deemed to be the falsifier.
⮚ Likewise, Art. 174 punishes a PUBLIC OFFICER
Q: X was charged with falsification of a public document but who issues a false certificate of merit, service or
during the trial on the merits of the case, it was discovered good conduct, moral character, etc.
that it was not X who falsified the document. X only used the ⮚ And, under Art. 174, ANY PRIVATE INDIVIDUAL
same despite knowledge that it is falsified. Therefore, the who falsifies a medical certificate or certificate of
crime committed is use of falsified document but the crime merit or service or good conduct shall be also
filed in court is falsification of a public document. So what criminally liable.
must be done? ⮚ The offender is the person who falsifies, issues the
A: Either: false medical certificate or certificate or merit.
⮚ If the offender is not the falsifier, but he knows that
1. The fiscal, upon presentation of the defense the said document is falsified and he makes use of
evidence may move for the withdrawal of the the same, his liability is under Art. 175.
case of falsification and could file a new one –
Use of Falsified Documents to conform; or ARTICLE 175 – USING FALSE CERTIFICATE
2. The trial may proceed and the judge may order
⮚ Under Art. 175, the offender knows that the
an acquittal because he cannot be convicted of
medical certificate or certificate of merit has been
use when the charge is falsification since they
falsified and despite that knowledge, he makes use
have different elements. And if the crime has
of the same.
not yet prescribed, the public prosecutor may
file a case of use of falsified document. There is Q: So what if the defense counsel is about to present his
no double jeopardy because falsification and witness. The witness is a person who was present in the
use of falsified documents have different scene of the crime who actually saw the incident – that is
elements. according to the defense counsel. However, on the date of
the said hearing, the said witness failed to appear, the
ARTICLE 173 – FALSIFICATION OF WIRELESS
defense counsel said to the judge: “Your Honor, my witness
TELEGRAPH AND TELEPHONE MESSAGES
is in the hospital, he cannot even get out of bed. He is very,
PUNISHABLE ACTS: very sick.” The judge, however, was doubtful of the said
manifestation of the defense counsel and so the judge told
the defense counsel: “Okay, let him appear in the next

61 |
hearing and make sure that he brings with him a medical are not considered documents. They are mere
certificate to show that indeed he can testify in this hearing. forms, mere instruments which can be used for
With that, the defense counsel informed the witness of the falsification. Since they are fake forms, the crime
said order of the court. The said witness was in that time, committed is Violation of Art. 176- Possession of
healthy, it is just that he was too afraid to testify. However, Instruments or Implements which can be used for
in the next hearing, he is deemed required to produce a falsification.
medical certificate showing that he was bedridden. And so,
he went to his medical doctor. He asked the doctor to issue a
ARTICLE 177 – USURPATION OF AUTHORITY OR
medical certificate saying that he was very, very sick and that
OFFICIAL FUNCTIONS
he could not get out of bed on the said date. The said doctor
issued the said medical certificate and then his witness ACTS PUNISHED:
appeared on the second hearing and presented him to the
I. Usurpation of authority is committed when a
court. It was submitted to the records of the court. What
person knowingly and falsely represents himself
crime or crimes is/are committed by doctor or the physician
to be an officer or agent of any department of the
as well as by the witness?
Philippine government or agency thereof or of a
foreign government.
A: The PHYSICIAN is liable under Art. 174. He issues a ⮚ The crime will immediately arise from the mere act
false medical certificate in the exercise or in the practice of person of knowingly and falsely representing
of his profession. himself to be an officer or agent of any department
On the other hand, the WITNESS, despite knowledge or agency of the Philippines or of a foreign country.
that it is a falsified medical certificate, still made use of It is not necessary for the offender to commit any
the same and he presented and submitted it to the court. act, to perform any act. It suffices that he falsely
represents himself to be an officer or agent of the
ARTICLE 176 – MANUFACTURING AND Philippine government. The crime will
POSSESSION OF INSTRUMENTS OR immediately arise. However, the said false
IMPLEMENTS FOR FALSIFICATION representation, aside from being done knowingly,
must be such that he intended to be known by such
⮚ This is the felony that is if a person was found in
other person or by public as a representative or
possession of unfilled-out forms of driver’s license, he
agent of Philippine government.
can be held liable for falsification of a public
II. There is usurpation of official function if any person
document and liable only in Article 176.
performs an act pertaining to a person in authority or
a public officer of the Philippine Government or of a
foreign government or agency thereof, under pretense
ACTS PUNISHED:
of official position, and without being lawfully entitled
1. Making or introducing into the Philippines any stamps, to do so.
dies, marks or other instruments or implements for ⮚ It is necessary that the offender performs an act.
counterfeiting or falsification. Mere representation will not suffice. It is necessary
2. Possessing with intent to use the instrument or that he performs an act pertaining to a person in
implements for counterfeiting or falsification made in authority or a public officer of any department or
or introduced into the Philippines by another person. agency of the Philippine government or of a foreign
government.
Q: X was arrested outside the NBI premises. X was caught in
the act of selling forms fake community tax certificates. He ⮚ In usurpation of official functions, it is necessary
sold these to people who went to NBI with the intent of that the act pertaining to a person in authority or a
getting an NBI clearance. He told them such CTC was a public officer must be under pretense of official
requirement—it is true. However, his forms are fake forms. position and without being lawfully entitled to do
He was caught in the act of selling the same. He was charged so. Without false pretense, the crime will not arise.
with the crime of Falsification of Public Document. Is the Q: X and Y went to the Mayor’s Office. They wanted to have
charge correct? a civil wedding. They complied with all the documentary
requirements for a valid marriage. They submitted the same
A: NO. The charge is wrong. These are mere to the Mayor. The Mayor stated that “after complying with
forms. There is no name, address, and civil status. the requirements, I am setting you wedding date at the end
Since such forms do not contain anything and since of the month.” And so here comes the end of the month, X
they are not yet evidence of anything, such forms

62 |
and Y, together with their ninongs and ninangs and their Which act of falsification? The fourth act – making
guests, went to the office of the Mayor ready to be married. untruthful statements in a narration of facts. In this
However, the Executive Assistant to the mayor told to X and narration of facts, it was stated that he was the one who
Y that the mayor is out attending a conference of League of solemnized the marriage between X and Y but that is not
Mayors and it is in a far town. And he will be back by about true. He was not even present during the said civil
10 to 11:00 in the evening. And so X and Y were so sad wedding ceremony. Therefore, he committed
because everything had been prepared even in the reception falsification of public document under Article 171,
and they cannot postpone their marriage. But the executive fourth act – by making untruthful statements in a
assistant told them that “don’t be sad, I have the power to narration of facts. He has the duty to divulge the truth
solemnize the marriage. You get inside the office of the in the said certificate of marriage but he failed to do so.
mayor and I will solemnize the marriage.” And so thereafter, Therefore, he is liable of falsification.
the executive assistant solemnized said civil wedding
ceremony of X and Y. Thereafter, the executive assistant told
X and Y, “you sign above the printed name for spouses and Q: What if an administrative case was filed against the
your witnesses you sign therein. But you have to come back mayor before the Office of the Ombudsman. During the
tomorrow because I cannot give you a copy of this certificate investigation of the case, the Ombudsman preventively
of marriage today because it has to be signed by the mayor suspended the mayor for a period of six months. The DILG
as the solemnizing officer. So you have to come back implemented the suspension order and the vice-mayor was
tomorrow morning.” Tomorrow morning, X and Y came made the acting mayor. However, upon advice of his counsel,
back and the executive assistant gave to them a copy of the the suspended mayor began working, began performing the
marriage certificate, same as the document that they signed acts of being a mayor after 90 days of preventive suspension.
and then thereafter, at the bottom, there was a signature of That is because according to his counsel, he can only be
the solemnizing officer, Mayor W. They were given a copy of suspended for a period of 90 days. So on the 91st day of his
the same. What crime/s had been committed by the said suspension, he again began assuming the function of a
executive assistant and by the said Mayor? mayor. He signed documents, he issued memorandum, etc.
as the city mayor. Is he liable under Article 177 for
A: The executive assistant is liable for the crime of
usurpation of official function?
usurpation of official function under Article 177. He
performed an act pertaining to a person in authority – A: Yes, he is liable for usurpation of official
the mayor – under false pretense of official position and function under Article 177. The reason is that he is
not being lawfully entitled to do so. Under the LGC, it is still under preventive suspension. Unless and until it is
only the mayor within his jurisdiction that ahs the lifted by the Ombudsman and the said lifting was
power to solemnize marriage. It cannot be delegated to implemented by the DILG, he remains to be a
any other person like the executive assistant. So when suspended mayor. And for having acted, for having
the executive assistant performed the said civil wedding performing an act pertaining to the office of a mayor, he
ceremony, he was doing an act of a public officer under is said to be committed a violation of Article 177,
false pretense of official position although not lawfully usurpation of official function.
entitled to do so. Therefore, he committed violation of
Q: There was this heavy traffic on this particular street, on
Article 177.
this particular highway. The lights were off, it was brownout
The executive assistant is also liable for falsification of so there was no signal light. There was no traffic enforcer
public document. The said certificate of marriage is a assigned yet, no MMDA officer, no police officer, so traffic
public document. He is a public officer – the executive was not moving. Here comes one person who was caught in
assistant. He took advantage of his official position in the traffic named Pedro. Since he has a meeting, he alighted.
falsifying the document. Which act of falsification? He He went at the middle and manned the traffic in order to
caused it to appear that it was the mayor who ease its flow. He performed an act pertaining to a traffic
solemnized the marriage when in truth and in fact, he enforcer, pertaining to a public officer – either a police
was the one who solemnized said wedding. Therefore, officer or a member of the MMDA. Can he be held liable for
the executive assistant committed two acts – usurpation?
falsification and usurpation.
A: No. Because although he performed an act pertaining
What about the mayor? The mayor is also liable for to a public officer, he did not do so under false pretense
falsification. He is a public officer. He took advantage of of official position. He was not doing it to falsely
his position as the mayor in signing said document. represent himself as a traffic enforcer. He is right there
as a private individual – his only obligation is to help

63 |
ease the flow of traffic. Without such false pretense on his name by which he is registered at birth at the local civil
his part, he cannot be held liable under Article 177. registrar or by which he is registered by the Bureau of
Immigration upon his entry into the Philippines, in case of
ARTICLE 178 – USING FICTITIOUS NAME AND an alien.
CONCEALING TRUE NAME
The use of a substitute name is only allowed upon approval
ACTS PUNISHED: by the judicial or competent authority. Therefore, no person
I. USING FICTITIOUS NAME can use any other name other than the name by which he is
baptized at the office of the civil registrar in your place other
⮚ Committed by any person who shall use a name
than the name by which he is recorded in Bureau of
other than his real name publicly for concealing
Immigration, if case he is a foreigner coming here in the
a crime, or evade the execution of a judgment,
Philippines. He can only use his name.
or to cause damage to public interest.
ELEMENTS: Q: What are the instances where a pseudonym may be used?
1. The offender uses a name other than his real
1. For entertainment purposes
name
2. For literary purposes
2. That he uses that fictitious name publicly
3. In athletic events
3. That the purpose of the offender is either:
4. If the use of substitute name is allowed by
a. to conceal a crime; or
competent or judicial authority.
b. to evade execution of a judgment; or
c. to cause damage to public interest. ALIAS is a name or names use or intended to be used by a
II. CONCEALING TRUE NAME person publicly and habitually, usually in business
transaction other than the name registered at birth for the
ELEMENTS:
first time before the local civil registrar. Absent the elements
1. The offender conceals— of habituality and publicity, the offender is not liable under
a. his true name; AND CA 142, as amended.
b. all other personal circumstances
Q: X is a public officer. He was charged with an
2. That the purpose is only to conceal his identity
administrative case before the office of the Ombudsman. His
counsel asked him to get a copy of the complaint filed against
USING FICTITIOUS NAME vs. CONCEALING TRUE him before the office of the Ombudsman because the
NAME secretary of the said counsel could not do so as he was very
busy. But this public officer would not want to get a copy
because he would not want that people would know that he
USING FICTITIOUS CONCEALING TRUE is getting a copy of the complaint against him. And so, the
NAME NAME secretary told him that he can use the name of the secretary
– the name of Y. And so, when public officer X went to the
The use of a name other than It is not necessary that the
Ombudsman, he logged down his name as Y – the name of
his real name is done use of another name,
the secretary of his counsel. And he was given a copy of the
publicly. There is the concealing his true and real
complaint. However, someone recognized him; someone
element of publicity. name, must be done
from the office of the Ombudsman knows him and
publicly.
recognized him and he discovered that he stated a wrong
purpose is to conceal a only purpose of the offender name in the logbook. He stated the name of Y instead of
crime, evade the execution of is to conceal his true and real stating the name of X. Is he liable for using a fictious name
judgment or to cause identity. under Article 178? Is he liable for concealing true name
damage to public interest. under Article 178? Is he liable for violation of the Anti-alias
Law?
A: He is not liable for using a fictitious name. He is no
ANTI-ALIAS LAW intention to evade a crime, to evade execution of
(C.A. No. 142, as amended) judgment or to cause damage to public interest. His only
intention is that he was ashamed to be identified as the
Under C.A. 142, except as pseudonym, in literary, cinema, one getting a copy of the complaint. Therefore, he
television, radio and other entertainment purposes, and in cannot be held liable for using a fictitious name.
athletic events wherein the use of a pseudonym is a normally
accepted practice, no person can use any name other than

64 |
He cannot also be held liable for concealing true name. use of the name Jose Velarde. Hence, he was also acquitted
The only thing that he concealed is his name. He was not although convicted by Sandiganbayan, he was acquitted by
asked of any other personal circumstances. Therefore, the SC.
there was no intent on his part to conceal his true
Q: What if a lawyer was having a massage in a sauna bath
identity but only his name. Therefore, he cannot be held
parlor. He did not know that as a front it is a sauna bath
liable for concealing true name.
parlor but in truth and in fact, it was a prostitution den. At
He cannot also be held liable for violation of C.A. 142 as the time that he was having this massage service, the police
amended. In the case of Cesario Ursua v. CA, and in raided the place because they were able to secure a search
the case of Estrada v. Sandiganbayan, the SC said warrant. And among those arrested was the said attorney.
that in order for one to be liable under the Anti-alias The said attorney was brought to the PNP station and he was
Law, it is necessary that he must have used the said alias asked of his name, ashamed to reveal his true identity, his
habitually and also publicly. In this case, although X true name, he said that he was Y and did not state that he
used the name of Y publicly because he logged it down was Atty. X. However, when he was asked his residence, he
as his name, there is no showing of the element of stated the truth. As of the name of his wife, he stated the
habituality. He did not use the name Y in any other truth. As of the name of his children, he stated the truth.
transactions thereafter. Therefore, he cannot be held
liable of any crime. ✰ Is he liable for using fictitious name?
A: He is not liable for using fictitious name.
First, he did not do so publicly. Second, his use of the
Cesario Ursua v. CA name was not done to conceal a crime, to evade the
execution of sentence or to cause damage to public
The said accused made use of a different name. he used the
interest—none of these purposes is present; therefore
name of Oscar Perez in the office of the Ombudsman as he
he is not liable for using fictitious name.
was trying to get a copy of the complaint filed against him. It
was however discovered that a case of violation of CA 142 ✰ Is he liable for concealing true name?
was filed against him.
A: No, he is not liable for concealing true
The SC held that he is not criminally liable. The SC acquitted name. Although he concealed his real name, Atty. X,
the accused because according to the SC, the use of the name he did not conceal his other personal circumstances.
Oscar Perez in an isolated transaction, without any showing, He divulged his address. He divulged the name of his
absent an evidence that henceforth he wanted to be known wife, the names of his children; therefore, it cannot be
by the name of Oscar Perez in not within the prohibition of said that he has the intention to conceal his true
CA 142 as amended. There was no evidence that showed that identity. In fact, his true identity can easily be verified
henceforth he wanted to be known by that name. There was just by going to the said address, therefore he is not
no showing that henceforth, he wanted to be called by the also liable for concealing true name.
said name therefore it cannot be said that Oscar Perez is an
alias of the accused. ✰ Is he liable under CA 142, as amended?
People v. Estrada A: He is also not liable under CA 142, as

amended, because the use of the name Y in a single
In this case, the former president made use of the name Jose transaction, in a single isolated transaction, without
Velarde in signing a trust account. So he signed a trust any showing that henceforth he wanted to be known
account, using the name Jose Velarde and so he was charged as Y is not within the prohibition of CA 142, as
with violation of CA 142 as amended. amended.
Again, the SC said, the use by Erap of the name Jose Velarde ARTICLE 179 – ILLEGAL USE OF INSIGNIA,
in a single, isolated transcation, without any showing that UNIFORM, OR DRESS
henceforth he wanted to be known by such name, is not
within the prohibition of CA 142 as amended. First, it was ⮚ Committed by any person who makes use of any
not done publicly and was in fact done secretly in the insignia, uniform or dress which pertains to an
presence of Laquian and Chua and the said act of signing office not being held by the offender or to a class of
does not make it public because these two are his close person of which he is not a member and he makes
friends therefore it was done secretly, in a discreet manner. use of such insignia, uniform or dress publicly and
Hence, it was not done publicly. It was also not done improperly.
habitually. The element of habituality is not present because
ELEMENTS:
there was no showing that in any other transaction, he made

65 |
1. The offender makes use of INSIGNIA, UNIFORM or his testimony is false and then the said defendant is
DRESS either acquitted or convicted.
2. That the insignia, uniform or dress pertains to an
ELEMENTS:
office not being held by the offender or to a class of
person of which he is not a member. 1. That there be a criminal proceeding
3. That the said insignia, uniform or dress is used 2. That the offender testifies falsely under oath against
publicly and improperly. the defendant therein.
3. That the offender who gives false testimony knows
■ The offender uses the insignia, uniform or dress of an that it is false.
office not held by him or a by a class of person of which 4. That the defendant against whom the false testimony
he is not a member and he used the same publicly and is given is either acquitted or convicted in a final
improperly. judgment (People v. Maneja).
Q: What if a person was wearing a uniform. So he said that ARTICLE 181 – FALSE TESTIMONY FAVORABLE
it was a uniform of a certain organization known as H world TO DEFENDANT
but in fact, no such organization ever existed. Is he liable
under Article 179? ⮚ In a criminal proceeding, the offender-witness
testified falsely in favor of the defendant and he
A: No, he is not liable of Illegal use of insignia, knew that his testimony is indeed false.
uniform or dress under Article 179. The reason is
that H world does not belong to any office, doesn’t refer ELEMENTS:
to a class of persons; therefore, he is not liable under 1. There is a criminal proceeding
Article 179. 2. The offender testifies falsely in favor of the defendant
Q: What if a person made use of a uniform of a prisoner. So, 3. The offender knew that his testimony is false.
you see a person, he was receiving a holy communion, he was
wearing an orange t-shirt with a big letter P at the back which ■ Notice that the fourth element of Article 180 is absent in
means Prisoner. Can he be held liable under Article 179? Article 181.
■ If you will compare the false testimony against a
A: He is not liable of Illegal use of insignia, defendant and false testimony favorable to a defendant,
uniform or dress under Article 179. Although he in case of false testimony against a defendant, there is
used the uniform of a prisoner, it is not an office held by the fourth element that, the defendant against whom
the offender, it is not also a class of persons. When you the false testimony has been given must first be
say a class of persons of which he is a member, it refers convicted or acquitted by final judgment. Without the
to a dignified class of persons. He is assuming that he said defendant’s acquittal or conviction by final
belongs to the said class of persons. Here, he is even judgment, the said false witness cannot be prosecuted
belittling himself because he was wearing a uniform of in court. The fourth element is absent. Such element is
a prisoner. Hence, it cannot be said that he violated not present in case of false testimony favorable to the
Article 179. defendant. Therefore, in case of false testimony
FALSE TESTIMONY (ART 180, 181, 182) favorable to a defendant, right after the giving of the
false testimony, the false witness can already be
⮚ False testimony can either be false testimony in prosecuted in court. There is no need to wait for an
criminal cases (Articles 180 and 181), false acquittal or conviction or any judgment coming from
testimony in civil cases (Article 182) and false the court.
testimony in other cases. The same is true in false testimony in civil cases.
⮚ False testimony in criminal cases can either be: (1)
false testimony against a defendant (Article 180) ■ Right after the hearing of false testimony, the false
and (2) false testimony favorable to defendant witness can already be prosecuted under Article 181. But
(Article 181). in case of Article 180, before the false witness can be
prosecuted, it is necessary that the defendant must first
ARTICLE 180 – FALSE TESTIMONY AGAINST A
be acquitted or convicted by final judgment.
DEFENDANT
REASON: Under Article 180, the penalty to be
⮚ In a criminal proceeding, the offender-witness imposed on the false witness is dependent on the final
testified falsely against a defendant knowing that sentence imposed on the defendant against whom the
false testimony is given.

66 |
against the false witness W – violation of Article 181 (false

testimony favorable to a defendant). Will the case prosper?
FINAL SENTENCE PENALTY WHICH
IMPOSED ON SHALL BE IMPOSED A: Yes. Because in case of false testimony favorable to
DEFENDANT ON FALSE WITNESS the defendant, right after the giving of the false
Death Reclusion Temporal testimony, the said false witness can already be
prosecuted in court. No need to wait for conviction by
Reclusion perpetua Prision mayor final judgment nor acquittal.
Any other afflictive Prision correccional
Q: What crime is committed by the counsel?
penalty
A correctional penalty Fine or the defendant A: The counsel should be liable under Article 184. He
offers in evidence a false witness. Therefore, he will be
Acquitted Arresto mayor liable under Article 184. The mere act of offering – here,
he did not merely offer, he even asked questions.
Therefore, he should be held liable under Article 184.
Q: A case of homicide was filed against X. The case was on
going trial. The mother of the victim presented to the fiscal a ■ Under Article 180, if the defendant has been
witness. The mother said that this witness, by the name of W convicted and the penalty imposed is capital
saw everything how my son was killed by the accused X. The punishment or death then the false witness shall be
fiscal, after interviewing, believed, and the fiscal presented imposed with a penalty of reclusion temporal. If the
said witness W and W started lying against the said defendant, upon conviction is imposed with a
defendant – against X. After the hearing, the judge convicted penalty of reclusion perpetua and reclusion
X. X appealed. Since he was so mad at W, while his case was temporal, the penalty will be imposed on the false
on appeal before the Court of Appeals, he immediately filed witness is prision mayor. If the said defendant is
a case against W – violation of Article 180 (False Testimony convicted and the penalty imposed on him is any
Against a Defendant). Will the case prosper? other afflictive penalty, the penalty to be imposed
on the false witness is prision correcional. On the
A: No. The case is premature because although the first other hand, if the penalty imposed on the said
element is present, there is a criminal proceeding for defendant is prision correcional, arresto mayor,
homicide, the second element, W testified falsely fine or he was acquitted. If he was acquitted, the
against X, third element, W knew that his testimony is penalty to be imposed on the said person who
false because he is a paid victim, but the fourth element testified falsely is arresto mayor.
is absent. The case is still on appeal. There is no ■ So in this case, the penalty on the false witness is
conviction yet by final judgment, there is yet no always dependent on the penalty to be imposed by
acquittal. Therefore, the filing of the case against the the court on the defendant; therefore, there must
false witness, W, is still premature. The reason is, under first be a final conviction by final judgment.
Article 180, the penalty to be imposed on the false ■ NOTE: if it is an acquittal, the case can be
witness testifying falsely against the said defendant immediately filed because an acquittal is
would depend on the final sentence imposed on the said immediately executory. You cannot appeal an
accused. Therefore, there must be first a conviction by acquittal. It is immediately executory.
final judgment or an acquittal before the said false
witness can be prosecuted before the court. (IN FAVOR)
Q: So the case was filed against A for homicide, here comes
Q: But what if in the same problem, X is being charged with
a witness, the witness testified falsely in favor of the accused.
homicide. After the presentation of the defense evidence, it
Can the private complainant, the heirs of the victim,
is now time for the accused to present its evidence. The
immediately file a case of false testimony against the witness
defense counsel, after presenting the accused, presented a
right after the giving thereof?
false witness by the name of W. The counsel knew that he is
a false witness. And W began testifying falsely in favor of X. A: Yes, because in case of false testimony in favor of the
The heirs of the victim were so mad. After trial on the merits defendant, the penalty of the false witness is not
however, despite the fact that W testified favorably for X, dependent on the penalty to be imposed on the said
still, the judge convicted X. So, X appealed. While X’s appeal accused or defendant.
was pending in the CA, the parents of the victim filed a case

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ARTICLE 182 – FALSE TESTIMONY IN CIVIL as perjury because the essence of perjury is
CASES the violation of the solemnity of oath.
⮚ If the person who received the oath is not duly
⮚ Right after the giving of the false testimony, the
authorized, it cannot be said that there is a
private complainant or the aggrieved party, can
violation of the solemnity of the oath.
immediately file a case against the false witness
3. That in the said statement or affidavit, the offender
who testified in favor of the defendant.
makes a willful and deliberate assertion of falsehood
ELEMENTS: ⮚ It is necessary for perjury to arise that the
offender deliberately, knowingly ascertained a
1. The testimony must be given in a civil case
falsehood. There was a deliberate intent on his
2. The testimony must relate to the issues presented in
part; therefore, good faith is a defense in
said case (relative or pertinent)
perjury.
3. The testimony must be false
4. The false testimony must be given by the defendant ⮚ Perjury likewise cannot be committed out of
knowing the same to be false. mere negligence. It is necessary that there must
5. The testimony must be malicious and given with be a deliberate intent on his part to assert a
intent to affect the issues presented in the said case falsity either in the statement or affidavit.
(U.S. v. Aragon) 4. The said statement or affidavit containing falsity is
required by law.
⮚ In case of false testimony in a civil case, right after
the giving of the false testimony, the false witness ⮚ If it is not required by law then it cannot be
can be immediately prosecuted in court. considered as a crime.
⮚ In order to amount in false testimony in civil cases, Two Ways of Committing Perjury
there must be litigation. Take for example a sum of
Based on the first element, there are two ways of committing
money, breach of contract. If the false testimony is
perjury. The offender can either:
given in a special proceeding, for example,
petition for nullity of marriage, petition for 1. Make a statement under oath or
separation, petition for habeas corpus, these are
special proceedings and a false testimony of a 2. He can execute an affidavit on a material matter
person who testified falsely during this special When we say making a statement under oath, it is done
proceeding, the case is under Article 183, false orally. When we say executing an affidavit, when we say
testimony in other proceedings. affidavit, it is always under oath.
ARTICLE 183 – PERJURY It must be on a material matter. Before whom must it be
PERJURY is the willful and deliberate assertion of done? It must be before a competent officer duly authorized
falsehood on a material matter made before an officer duly to receive and administer the oath. And it is necessary that
authorized to receive and administer oath. said offender has the willful and deliberate assertion of
falsehood. There is on his part malice, deliberate intent to
ELEMENTS: perjure himself therefore, PERJURY CANNOT BE
1. The accused made a statement under oath or COMMITTED BY IMPRUDENCE, BY NEGLIGENCE.
executed an affidavit upon a material matter Hence, good faith or lack of criminal intent to perjure oneself
⮚ There are two ways of committing perjury: is a valid defense in case of perjury. Because the law requires
The offender either: deliberate intent to assert falsehood. And last element, it is
a. Makes a statement under oath (he necessary that the said document must be required by law.
makes a false testimony); or Why? Because violation of Article 183 (Perjury) is a crime
b. Executes an affidavit on a material against public interest. If said document is not required by
matter (if it is an affidavit, it is also law, it doesn’t matter even if falsehood is stated therein.
required under oath)
Q: X made a love letter to Y. In the said love letter, he stated
2. The said statement under oath or affidavit was made
that Y is the only woman that he loves. But that is not true,
before a competent officer duly authorized to receive
he has another girlfriend – two or three other girlfriends Can
and administer oath
he be held liable for perjury?
⮚ In order to amount to perjury, it is necessary
that the said oath must be given before an A: No. The love letter is not required by law. It will not
officer duly authorized to receive and affect public interest. Therefore, even if he stated all
administer. Otherwise, it cannot be considered kinds of falsities therein, he cannot be held liable for the

68 |
crime of perjury. It is necessary that the said document PERJURY FALSIFICATION

is required by law because it is a crime against public
Document is required to Document is not
interest.
be under oath required to be under
oath
Q: What if X made a false statement in a criminal
proceeding, what crime is committed?
How is perjury different from falsification? In case
A: The crime committed is FALSE TESTIMONY. of falsification, the document is not required to be
Q: A makes a statement in a labor case against B. What crime under oath. In case of perjury, the document is
is committed? required to be under oath. In both instances, what
is the reason? Because in perjury, its essence is the
A: The crime committed is PERJURY. violation of the solemnity of the oath.
■ If the false statement under oath is made in a judicial Q: An applicant for the bar filled out an application form for
proceeding whether it be a criminal or civil proceeding, the bar, there was a statement therein, “Have you ever been
the crime committed is FALSE TESTIMONY. fined or convicted of any crime?” and the answer was no,
■ If the said false statement, however, is made in a non- however, in truth and in fact, he has already been fined for
judicial proceeding, administrative proceedings, or the crime of jaywalking. He answered no and then this
quasi-judicial proceedings, then the crime application for the bar is required to be under oath. He was
committed is PERJURY. So if the false testimony or the looking for a notary public since it was a Sunday, there was
false statement is made in a labor case, in an no office opened so he went to the legal office of his father,
administrative case, in an application for search hoping that there was a lawyer there. However, there was
warrant, during the preliminary investigation, before only the janitor and he asked the janitor to sign in the notary
the fiscals’ office, the crime committed is perjury. public part and then submitted it to the office of the bar
confidante. Is the said applicant for the bar liable for perjury
Q: What if the offender makes false narration of facts in a
or is he liable for falsification?
cedula? The offender makes a false narration of facts in a
driver’s license. What crime is committed? A: He is liable of FALSIFICATION and not of perjury
because the person who received and administered the
A: FALSIFICATION.
oath is not a confidante officer duly authorized to
Q: What if the offender makes a false narration of facts in a receive and administer the oath. He was a mere janitor
statement of assets, liabilities and net worth. So a public and not a notary public. As such, the crime committed
officer filed a statement of assets, liabilities and net worth. It is falsification. Again, the essence of perjury is the
contains falsities, false narration of facts. What is the violation of the solemnity of the oath.
liability?
Q: What if in a case submitted in a fiscal’s office, so there
A: The liability is PERJURY. was a complaint and attached thereto is a sworn statement.
In the said sworn statement, the witness said that he saw the
PERJURY FALSE TESTIMONY
accident. He saw the accused bumped the victim. According
False statement under False statement under to him, at the time, he was watching Saksi, when suddenly a
oath is made in a non- oath is made in a judicial commotion occurred outside, he ran out of the window, he
judicial, quasi-judicial, proceeding. saw at that particular time the accused hitting the said victim
administrative or with his vehicle and so he saw the accused that caused the
legislative proceeding. death of the victim. That was his statement in the affidavit
filed to the fiscal’s office. During investigation, however, it
was discovered he was not watching Saksi, he was watching
So, the distinctions between false testimony and Bandila, the news program in ABS-CBN and not the news
perjury is that in case of false testimony, the false program in GMA. Is he liable of perjury?
statements under oath were made in a judicial
A: No, he is not liable of perjury. Although it was
proceeding, whereas in case of perjury, the false
under oath, administered by a fiscal, still it is not perjury
statement under oath is made in a non-judicial,
because it is not on a material matter. Whatever it is that
quasi-judicial, administrative or legislative
he was watching at the time, even if it is cartoon, it
proceeding.
doesn’t matter. What matters is that he heard the
commotion, he ran to the window, and he saw the

69 |
accused bumping the victim. He saw that it was the offering false witness in evidence, there is no need for the
accused who killed the victim and that it was the car of said witness to first be convicted before the offeror can be
the accused that hit the victim. Only then, it will be held criminally liable.
considered as perjury but whatever he was watching, it
SUBORNATION OF PERJURY is committed by a person
was immaterial. It was not on a material matter;
who knowingly and willfully procures another to swear
therefore it will not amount to perjury.
falsely and the witness suborned does testify under the
Q: A case of Estafa was filed against X before the office of the circumstances rendering him guilty of perjury.
Public Prosecutor. Let’s say that X filed a case of Estafa
NOTE: Subornation of perjury is not expressly penalized in
against Y before the office of the public prosecutor. Upon
RPC; but the direct induction of a person by another to
looking at the documents, the fiscal was not satisfied. The
commit perjury may be punished under Article 183 in
fiscal said he needs further evidence. In order to determine
relation to Article 7, meaning, the crime is plain perjury but
the presence of probable cause, the fiscal called for a
the one inducing another will be liable as principal by
clarificatory hearing. So, both the complainant and his
inducement and the one who testified as principal by direct
witnesses and the respondent Y and his witnesses appeared
participation.
in court. The fiscal under oath started asking the first witness
of the complainant by the name of W. And W started lying in ARTICLE 184 – OFFERING FALSE TESTIMONY IN
his answers to the said fiscal under oath. Later, it was EVIDENCE
discovered that all his statements before the public
prosecutor were lies. What crime has been committed by W, ⮚ Committed by any person who shall offer in evidence
the said witness? any false testimony or any false witness either in a
judicial proceeding or in any official proceeding.
A: W is liable of perjury. Why is he not liable for false ELEMENTS:
testimony? The said false statement was made under 1. The offender offered in evidence a false witness or
oath? Reason is, false testimony refers to proceedings. false testimony.
It refers to false statements under oath made in a 2. The offender knew the witness or the testimony was
judicial proceeding whether criminal or civil in nature. false.
The proceeding before the office of the public 3. The offer was made in a judicial or official proceeding.
prosecutor is a non-judicial proceeding because the ✰ Is this the same as subornation of perjury?
Department of Justice, the prosecutors belong to the
⮚ Subornation of perjury is committed by any
Executive Branch. Hence, it is a non-judicial
person who procures a false witness in order to
proceeding. Since he made the said false statements
perjure himself and testify falsely in a case.
under oath in a non-judicial proceeding, then the crime
There is no such crime as subornation of
committed is perjury.
perjury under the present RPC because we
Q: In his sworn statement, let us say that in the said sworn already have Article 184.
statement for Estafa, the witness stated falsities. They were ⮚ Article 184 is committed when any person who
all lies pertinent to the issues in the said case. What crime is procures a witness and offers him as evidence in
committed by the said person who executed the said sworn court can be held liable under Article 184 or he
statement which contains lies? Is it perjury or is it can be held liable as a principal by inducement in
falsification of public document? false testimony or as a principal by inducement
in perjury; therefore subornation of perjury is
A: It is Perjury because it is a sworn statement. It was
not necessary and it is not a crime under
made under oath before an officer duly authorized to
Philippine jurisdiction, under the RPC.
receive and administer oath. If the said document is not
required to be under oath, like a driver’s license, like a ARTICLE 185 – MACHINATIONS IN PUBLIC
cedula or community tax certificate, the crime AUCTIONS
committed is falsification of public document by making
ACTS PUNISHED:
false narration of facts.
I. SOLICITING GIFT OR PROMISE
As I said earlier, in Article 184, the offender is the one who
offers any false testimony and false witness in court. This is ⮚ By soliciting any gift or promise as a
different from subornation of perjury because in case of consideration for refraining from taking part in
subornation of perjury, before the offeror or the suborner any public auction.
can be held liable, the person whom he offers to testify falsely ⮚ The mere act of soliciting any gift or promise, so
must first be convicted. In case of offering false testimony, that he will refrain from taking part of the public

70 |
auction, will already give rise to the crime. It is any combination whether in the form of trust or
not necessary that he actually received the gift, it otherwise, in restraint of trade or commerce or to
is not necessary that he actually will not prevent by artificial means free competition in
participate in the said auction. the market.
ELEMENTS: II. MONOPOLY TO RESTRAIN FREE
1. There be a public auction. COMPETITION IN THE MARKET
2. The accused solicited any gift or a promise from any ⮚ This is committed by monopolizing any
of the bidders. merchandise or object of trade or commerce or
3. That such gift or promise was the consideration for by combining with any other person or persons
his refraining from taking part in that public auction. in order to alter the prices thereof by spreading
4. The accused had the intent to cause the reduction of false rumors or making use of any other artifice
the price of the thing auctioned. to restrain free competition in the market.
II. ATTEMPTING TO CAUSE BIDDERS TO STAY III. MANUFACTURER, PRODUCER, OR
AWAY PROCESSOR OR IMPORTER COMBINING,
⮚ By attempting to cause bidders to stay away from CONSPIRING OR AGREEING WITH ANY
an auction by threats, gifts, promises or any other PERSON TO MAKE TRANSACTIONS
artifice PREJUDICIAL TO LAWFUL COMMERCE OR
⮚ The mere attempt to cause bidders not to TO INCREASE THE MARKET PRICE OF
participate in the said public auction by threats, MERCHANDISE
gifts or promise will already give rise to the
crime. It is not necessary that the bidders would ■ The FIRST TWO ACTS under Article 186 can be
not actually participate. committed by any person and not necessarily by
manufacturers, producer or processors. The THIRD
ELEMENTS:
ACT however, can be committed only by manufacturers,
1. There be a public auction processors, producers and importers who combined
2. The accused attempted to cause the bidders to stay with any other person or persons in order to commit a
away from that public auction. transaction prejudicial to lawful commerce or to
3. It was done by threats, gifts, promises or any other increase the market price of any merchandise or object
artifice. of commerce
4. The accused had the intent to cause the reduction of ■ Whether it be the first, second or third act, the mere
the price of the thing auctioned. conspiracy in order to restrain or to prevent free
competition will already give rise to the crime. It is not
In both instances, the intent of the offender is to cause the necessary that there be actual restraint in trade or
reduction of the price of the thing which is the commerce.
subject of the auction. When you say public auction, it
Q: What if Petron, Caltex and Shell connived, combined and
is vested with public interest. The intent is to get the
agreed with one another to hoard fuel. They know that the
best price for the thing subject of the auction. If there are
fuel prices will increase by March and so they decided to
no bidders, you cannot the best price, only one bid, then
hoard it. Can they be held liable under Article 186?
the said property will be given to you. So, the public will
be deceived. They will not be able to get the best price for A:
the thing which is the subject of the auction. If the intent
✰ Juridical corporations cannot be the subject of
of the offender in making the said bidders not to
criminal action. First, it cannot be said that
participate is to cause the reduction of the price, then he
juridical persons can act with intent. Second, you
can be held liable under article 185.
cannot imprison a juridical person in case of
conviction. So if the offender is a juridical entity,
ARTICLE 186 – MONOPOLIES AND
who shall be held liable?
COMBINATIONS IN RESTRAINT OF TRADE
⮚ The president, the directors or any of the
ACTS PUNISHED: members of the said corporation, association
I. COMBINATION TO PREVENT FREE or partnership, who knowingly permitted and
COMPETITION IN THE MARKET allowed this combination or monopoly in
restraint of trade or commerce. Note that they
⮚ This is committed by any person who shall enter
must have knowingly permitted the same
into any contract or agreement or taking part in

71 |
otherwise, they cannot be held criminally

liable.
⮚ If the objects, which are the subject of this monopoly or
combination in restraint of trade or commerce are
prime commodities such as food, motor fuel, lubricants,
it is not even necessary that there be conspiracy. A
mere proposal, a mere intial step to hoard, to
prevent free competition in the market will
already give rise to the crime.
ARTICLE 187 – IMPORTATION AND DISPOSITION
OF FALSELY MARKED ARTICLES
⮚ Committed by any person who shall import, sell, or

dispose any article or merchandise made of gold,
silver, other precious materials, or their alloys
ELEMENTS:
1.
The offender IMPORTS, SELLS or DISPOSES any
article or merchandise made of gold, silver, other
precious materials, or their alloys
2. That the STAMPS, BRANDS, or MARKS of those
articles or merchandise FAIL TO INDICATE the
actual fitness or quality of said metals or alloys
3. The OFFENDER KNOWS that the stamps, brands or
marks fail to indicate the actual fitness or quality of
the metals or alloys.
⮚ This is considered a criminal act because the offender,
despite knowing that the articles or merchandise that he
imported are misbranded, he still imports the same,
sells the same or disposes the same
⮚ Mere importation is a punishable act, therefore it is not
necessary for the offender to become liable under
Article 187 that he must have sold the misbranded
articles or that he must have disposed the article
because mere importation will already give rise
to the crime.

72 |
TITLE FIVE ⮚ Because if the dangerous drugs had not been

delivered, the third element is lacking, the sale
CRIMES RELATIVE TO OPIUM AND OTHER
is aborted, there is only ATTEMPTED
PROHIBITED DRUGS
ILLEGAL SALE of dangerous drugs not
COMPREHENSIVE DANGEROUS DRUGS ACT OF consummated illegal sale of dangerous drugs
2002 (RA 9165) because the third element is lacking.
SECTION 4 – IMPORTATION OF DANGEROUS Q: X was a well-known drug peddler and the police officers
DRUGS AND/OR CONTROLLED PRECURSORS assigned to conduct a buy-bust operation against him in
AND ESSENTIAL CHEMICALS order to arrest him, they assigned Y as the poseur-buyer
because Y is a trusted informant. And so, in the said
Is committed by:
planning, Y was given the marked money that he will use in
⮚ Any person, who, unless authorized by law, shall buying drugs from X. And Y was also given the instruction
import or bring into the Philippines any dangerous by the police officers that the moment the sale is completed,
drug, regardless of the quantity and purity involved. he must remove his hat. The removal of his hat would signal
to them that the transaction, the sale is already complete. So,
In one Supreme Court decision, it held that: For one to be
Y, together with the police officers, went to the place of X. So
liable for importation of dangerous drugs, it is
that they would not be detected, the police officers were five
necessary to be proven that the dangerous drugs that were
to six meters away from the house of X. It was only Y who
taken in a vessel came from a foreign country with the said
went to the house of X and Y knocked at the door. When X
dangerous drugs on board the said vessel; therefore, the
opened the door, Y told X that he us going to buy shabu
prosecution must prove that the vessel which came
worth P1,000. And X gave to Y four plastic sachets of shabu.
into the Philippine ports had with it the dangerous
After giving the same, Y placed it inside his pocket and Y
drugs. Only then can it be said that the dangerous drugs
pulled out the two 500-peso bills in order to give it to X. But
have been imported from another country.
before he was able to hand the said marked money to X, his
SECTION 5 – SALE, TRADING, ADMINISTRATION, hat fell. The moment his hat fell, the police officers nearby
DISPENSATION, DELIVERY, DISTRIBUTION AND thought the sale was complete and so they rushed towards
TRANSPORTATION OF DANGEROUS DRUGS the scene. X, upon seeing them, ran away but the police
AND/OR CONTROLLED PRECURSORS AND chased X and they were able to arrest X. The shabu
ESSENTIAL CHEMICALS confiscated was positive of methamphetamine
hydrochloride, therefore X was charged with illegal sale of
Selling of Dangerous Drugs
dangerous drugs. During the trial of the case however,
⮚ Act of giving away any dangerous drug and/or despite subpoenas sent to the poseur buyer Y, he failed to
controlled precursor and essential chemical appear. The said subpoena was returned to the sender,
whether for money of any other consideration. returned to the court, no Y in the said address given.
Likewise, the marked money was proven to be still in the
ELEMENTS OF SALE OF ILLEGAL DRUGS: hands of Y, it was not yet given to X. And so, because of this,
1. The identity of the buyer and the seller is established according to X, he cannot be held liable for illegal sale. X
said, there was no sale transaction that ever occurred. First,
⮚ It is necessary that the identity of the buyer no money was ever received by him. And second, there was
and the seller are clearly identified. no buyer. In fact, the prosecution was not able to present the
2. The corpus delicti and the price must be established. poseur buyer. Based on these arguments raised by X, should
it be an acquittal? Should it be a conviction?
⮚ In every prosecution for dangerous drugs,
Supreme Court said that corpus delicti is the A: In so far as the first argument is concerned, that the
drugs itself which must actually be presented said money was not received by him, the marked money
in court, that which tested positive for remained allegedly in the hands of the said poseur
dangerous drugs. It cannot be proven by mere buyer, no money, no sale transaction. The said
assertion that there was a white crystalline argument has no merit. Based on the second element of
substance. illegal sale, the law only requires the corpus delicti and
the price must be established. Here, the price was
3. The drugs (corpus delicti) must be transferred from the established – the poseur buyer was buying shabu worth
hands of the buyer to the hands of the seller. 1000php. It is not required that there be a simultaneous
exchange of money and drugs. So, even if the money was

73 |
not handed by Y to X, there can still be an illegal sale of package to the man inside the car which is parked at the
dangerous drugs because the price of 1000php – the other side of the street. The cigarette vendor asked the man
amount of drugs X was purchasing – was established. what is inside the package however the man said “it’s none
of your business to know what’s inside that. I will give you
However, although the first argument is without merit, P1000 if you deliver this to the man inside that car parked at
the second argument raised by X has merit. The second the other side of the street.” So the cigarette vendor with the
argument has merit because without the poseur buyer, P1000 got the bag and delivered it to the man at the other
there can be no sale transaction. Here, the police officers side of the street. He knocked at the window and the man
based on the facts, were five to six meters away. At such lowered his window. However at the time of the said delivery
a distance, they could not identify that the drugs the police officers arrived and arrested the cigarette vendor.
allegedly handed by X to Y were indeed the said drugs. Can he be prosecuted for delivery of dangerous drugs? Can
They could not identify at such a distance, only Y could he be convicted for delivery of dangerous drugs?
identify it because he is the one who transacted the said
shabu. Therefore, without Y’s testimony, the case must A: He can be prosecuted for delivery of dangerous drugs
fail. Hence, in this case, it would be an acquittal. however it is a defense on his part that he has no
knowledge that the thing he is delivering is dangerous
Although as a rule, the testimony of the poseur buyer is drugs because under RA 9165, delivering has been
not necessary. It will not create a hiatus on the evidence defined as the act of knowingly passing a dangerous
of the prosecution. Here, the police officers will be able drug to another, personally or otherwise, and by any
to testify as to the said transaction. But if the police means, with or without consideration. Therefore it is
officers were of such a distance – such that it is necessary that the one delivering dangerous drug must
impossible for them to identify the existence of the said have the knowledge of the thing that he is delivering is
sale – it would be an acquittal. Because the testimony of dangerous drug.
the said police officers as held by the Supreme Court in Q: X asked for Y to do errands for him. X told Y to deliver his
the case of People v. Andaya, would merely be bag to W at his address. And he gave Y 2000php for said act
hearsay evidence and hence, inadmissible to prove the of delivering. Y inquired what was inside his bag because he
case beyond reasonable doubt. will be given 2000php just for delivering, the bag must
contain something valuable. And indeed, X told Y that it
Another act punished under Section 5 is the act of
contains something very very valuable but Y did not know
delivering dangerous drugs.
what is inside. And so, Y delivered the said drugs without the
General Rule: The testimony of the poseur-buyer is not knowledge that it contains drugs. The police officers were
indispensable in a case of illegal sale of dangerous drugs. able to arrest Y at the act of delivering. And when the bag was
opened, it contains dried marijuana leaves. So, Y was
Exception: When the accused denies the existence of the charged with violation of Section 5 – delivering dangerous
said transaction. If the prosecution failed to present the drugs. Is Y liable as charged?
poseur-buyer to testify in court, it will amount to the
dismissal of the case. A: Y is not liable because based on the definition of the
delivery of dangerous drugs under RA 9165, the law
DELIVERY – an act of knowingly passing a dangerous requires knowledge on the part of the courier that the
drug to another, personally or otherwise, and by any means, thing he is delivering is dangerous drugs. Without such
with or without consideration. knowledge, it could be a valid defense. Since Y lacks
knowledge, the contents of the said bag were not
⮚ It is necessary that for the courier of the dangerous
divulged to him, then he should be acquitted of the
drugs to be held liable that he has knowledge, that
crime charged.
the thing he was delivering from one person to
another is indeed dangerous drugs. Lack of
knowledge on the part of the courier would be a
SECTION 6 – MAINTENANCE OF A DEN, DIVE, OR
defense on his part.
RESORT
Q: Let’s say there is this cigarette vendor on the side walk
⮚ Any person who maintains a den, dive, or resort for
and here comes a man who parked his car near the side walk.
the use of illegal drugs are liable under this section.
He called the cigarette vendor and told the cigarette vendor
to deliver a package to the man inside the car which is parked SECTION 7 – EMPLOYESS AND VISITORS OF A
on the other side of the street. He told the cigarette vendor DEN, DIVE, OR RESORT
that he will give him P1000 if the he agreed to deliver the

74 |
⮚ Under Section 7 of the act, even the employees 2. He is not authorized by law to possess the same
who are aware of the nature of the said den, dive or
resort for the use and sale of dangerous drugs are 3. That he freely and consciously possesses the said
also criminally liable. dangerous drugs
⮚ Likewise, even persons who are not employees 1st Element

which knowingly visit the same place despite the
knowledge of the nature of such den, dive, or resort The first element requires that the offender was found in
are also criminally liable. possession of dangerous drugs. When you say possession, it
does not only mean physical act of possession. It also
Q: What if the said den, dive, or resort is owned by a third includes constructive possession, for as long as said drug was
person? Let’s say A and B rented a house. After giving the found in a place within his custody, within his control, within
down payment, A and B went to the said house. A and B used his dominion.
the house as a den for illegal sale of dangerous drugs. The
police officers were able to secure a warrant and A and B Based on a search warrant, the police officers searched the
were arrested. Can the owner of the said house be criminally house of X for shabu and they found the shabu inside a box
liable for the maintenance of the said den? How about the in the kitchen in the house of X. X can be charged and can be
house? Can it be forfeited in favor of the government? held liable for illegal possession because anything inside the
A: Under Sec. 6, the said den, dive, or resort for the use house is under the control and dominion of X. Therefore, he
of illegal sale of dangerous drugs shall be escheated in can be charged and be held liable for illegal possession of
favor of the government provided that the following dangerous drugs.
circumstances concur:
2nd Element:
1. The information must allege that the said place is
intentionally being used in furtherance of illegal The second element requires that the offender is not
sale/use of dangerous drugs. authorized by law to possess the said dangerous drugs. It is
necessary that the said person found in possession has no
2. Such intent must be proven by the prosecutor. authority to possess it.
3. The owner of the said house must be included as an
accused in the information or complaint. The second element is presumed by law since dangerous
drugs are per se illegal. Therefore, the law presumes that
⮚ If these 3 elements are present; then the said house anyone in possession of dangerous drugs is not authorized
shall be confiscated and escheated in favor of the to possess. Therefore, the burden is on the accused to prove
government. that he was authorized to possess the drugs because the law
presumes lack of authority to possess the same.
SECTION 8 – MANUFACTURE OF DANGEROUS 3rd Element:

DRUGS
The third element requires that the said offender freely and
⮚ The presence of any controlled precursor and consciously possessed the dangerous drugs. He has the
essential chemical or laboratory equipment in the intent to possess, he knew that it was dangerous drugs and
clandestine laboratory is a prima facie evidence of nevertheless, he possessed it. There is the intent to possess.
manufacture of any dangerous drug.
If all these elements are proven, the offender can be held
liable for illegal possession of dangerous drugs.
Q: X was arrested by the police based on a tip. Based on the

tip given to the police officers, X has just bough shabu. Then
SECTION 11 – ILLEGAL POSSESSION OF X was frisked. Two plastic sachets of shabu were found in his
DANGEROUS DRUGS possession. He was brought to the police station,
investigated, and he was forcibly stripped off his clothings.
ELEMENTS OF POSSESSION OF ILLEGAL DRUGS: Inside his underwear, two other plastic sachets were found,
1. The offender is found in possession of any item identified this time containing dried marijuana leaves. Both were
to be drugs brought to the crime lab and both were positive. And so, he
was charged of two crimes: violation of section – illegal

75 |
possession of marijuana (a prohibited drug) and the other benefit of probation. But if he is a drug trafficker/
one is illegal possession of shabu (another prohibited drug). pusher, one who is engaged in selling dangerous drugs,
Are the charges correct? he cannot avail of the benefit of probation even if the
penalty imposed by the court is within the
A: The charges are wrong. It should only be one count probationable penalty because it is expressly prohibited
of violation of Section 11 of RA 9165. If the drugs by Sec. 24 of RA 9165.
regardless of their nature, were found in possession of
the accused based on same facts and circumstances, SECTION 13 – ILLEGAL POSSESSION OF
there is only one charge of illegal possession. The kind DANGEROUS DRUGS DURING PARTIES, SOCIAL
of drugs will just be stated, defined in the Information, GATHERINGS OR MEETINGS
in the body of the information. But there is only one ⮚ in Sec. 13, if any person was found in possession of
charge for violation of Section 11 dangerous drug in a party, social gatherings or
meetings, or in the proximate company of at least
Q: What if in the same problem, the police officers got a tip
two (2) persons; the maximum penalty prescribed
that X bought shabu. They followed X. X went to a bar. He
by law shall be imposed, therefore this is
partied in the said bar. The police officers went inside and
considered as aggravating circumstance.
found X dancing. Thereafter, they arrested X. X was found
in possession of said plastic sachets of shabu that he just SECTION 15 – ILLEGAL USE OF DANGEROUS
bought. What is the effect of such fact that he was found in DRUGS
possession of shabu – a dangerous drug – in this party?
ELEMENTS:
A: Under Section 13, it will be a qualified As held by the Supreme Court in the case of De la Cruz v.
aggravating circumstance – the maximum penalty People, the elements of Illegal Use of Dangerous Drugs are:
prescribed by law shall be the one imposed.
1. That the offender has been apprehended or arrested for
⮚ the commission of a crime
SECTION 12 - ILLEGAL POSSESSION OF DRUG 2. The said offender is subjected to a drug test
PARAPHERNALIA 3. After a confirmatory test, he was found positive for use of
dangerous drugs
⮚ If a person was found in possession of a drug
paraphernalia, the law presumed that he used In the case of De la Cruz v. People, the Supreme Court
dangerous drugs, to administer dangerous drugs held that based on the first element: That the offender has
for himself. been apprehended or arrested for the commission of a crime,
the word “crime” does not refer to any other crime. The word
e.g. A person was found in possession of empty plastic
“crime” refers only to those crimes punished under RA 9165
sachets and other instruments used for using dangerous
– those crimes punished under Article 2 of RA 9165.
drugs. He is therefore liable for Illegal Possession of
Therefore, for crimes outside Article 2 of RA 9165, the said
Drug Paraphernalia.
offender cannot be subjected to a drug test except when he
Q: What if a person was found in possession of drug has voluntary consent. But he cannot forcibly be subjected to
paraphernalia can they avail the benefit of probation? a drug test.
A: Yes he can avail for probation. The penalty In the case of De la Cruz, De la Cruz was charged and he
prescribed by law for illegal possession of drug was arrested for the crime of robbery extortion. He was
paraphernalia’s is an imprisonment ranging from 6 forcibly subjected to a drug test. He was forcibly required to
months and 1 day to 4 years which is within the submit his urine for a drug test and it was found positive. So,
probationable penalty. Under Sec. 24 of R.A. 9165, any he was charged with illegal use. The SC said, such act of
person convicted for drug pushing and drug trafficking, forcibly subjecting De la Cruz to a drug test is a violation of
regardless of the penalty imposed by the Court, cannot his right to privacy. Reason is, the crime he allegedly
avail for probation. committed is not among those found under RA 9165 but
under the RPC – robbery extortion. Therefore, the police
So under Sec. 24; only those who are convicted of drug
officers have no right to subject him to a drug test. It is a
pushing and drug trafficking which cannot avail for
violation of his right to privacy – a violation of his right
probation therefore for any other violation of
against self-incrimination. Hence, the SC acquitted De la
Dangerous Drugs Act, for as long as the penalty imposed
Cruz.
by the court is 6 years and below, he can avail for the

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Let us relate Section 15 to Section 25 of RA 9165 which will just be rehabilitated; he will be cured and it is for
provides that a positive finding for use of dangerous drug free in a government institution. If he will be
shall be a qualifying aggravating circumstance. rehabilitated in a private institution, it will be very
expensive. So, better ask the said accused for illegal use
Q: X killed Y and so X was arrested because of his brutal
who is a first-time offender to just admit so that they will
manner killing Y and because of his actuations. He was
be cured and rehabilitated. But note that if he is already
brought to the crime lab and thereafter, he was forced to
a second-time offender, the penalty is already
subject himself to a drug test. He refused but the police
imprisonment and no longer rehabilitation.
prevailed. Then thereafter, it was found out that he was
positive for drugs. What is the effect of such positive finding
for use of dangerous drugs on his criminal liability?
Qualification in Section 15: provided that the accused
A: None. He will be charged only for the crime if was not found in possession of other amount of dangerous
homicide for having killed Y. Such positive finding of drugs must be found in his possession.
use of dangerous drugs will have no effect on his
criminal liability. It will not be a qualifying aggravating ⮚ If any other amount of dangerous drugs was
circumstance because based on the decision of the SC in found in his possession (other than what he
De la Cruz v. People, an accused can only be was using), then the proper charge would no
subjected to a drug test if the crime he committed is longer be illegal use but illegal possession of
under RA 9165 and the killing of a person – homicide or dangerous drugs.
murder – is not under RA 9165. So, a person caught in First time offender – penalty is six months rehabilitation in
the act of killing a person cannot be subjected to a drug a government institution
test. Hence, the police officers subjecting X, arrested for
killing Y, to a drug test is a violation of his right to Second time offender – prision mayor is the penalty
privacy, a violation of his right against self- Q: The police officers saw a man snatched the cell phone of
incrimination. Even if he is found positive, such positive a woman. Since the police officers saw the man in
finding cannot give rise to a charge of illegal use and committing the crime inflagrante delicto of actual act of
such positive finding will not be a qualifying aggravating snatching and the man runaway, they followed the man. The
circumstance. The police violated the law, violated the man entered the house. The police officers upon entering the
Constitution. house saw 3 men on a round table; they were in the actual
Q: But what if X was found in possession of shabu? And the act of sniffing shabu. They were arrested and they were
police officers, finding him in possession of shabu, the police asked to stand up and fold their arms up and they were
officers believed he was under the influence of drugs. Since searched. Upon the search, they found out that these 3 men;
he was under the influence of drugs, the police officers each of them was found a sachet of illegal drugs in their
brought him to the crime lab. Not only the shabu confiscated pockets aside from the dangerous drug that they were using.
from him but even he himself was forcibly subjected to a What cases will you file against the 3 men?
drug test. He was forced to submit his urine. After a A: Illegal Possession of Dangerous Drugs. Not
confirmatory test, he was found positive. What is the effect illegal use of dangerous drugs because the third element
of such positive finding on his criminal liability? is wanting. Let’s say after the confirmatory test they
A: It will be a qualifying aggravating circumstance. were found to be positive however 3 elements must
Since the crime for which he was arrested was illegal concur: 1st element: They were caught in the actual act
possession of dangerous drugs, the police officers can of sniffing shabu. 2nd element: After confirmatory test
forcibly subject him to a drug test. Therefore, he was they were found positive of the use of dangerous drugs
found positive after confirmatory, such positive finding however the 3rd element is lacking because they found
will be a qualifying aggravating circumstance. It means to have in their possession a plastic sachet of other
that the maximum penalty for illegal possession shall be dangerous drugs other than the one they used.
the one imposed on him. Therefore the proper crime charged is illegal possession
of dangerous drugs.
The penalty for illegal use of dangerous drugs, if the
offender is a first-time offender, is only six months Dela Cruz v. People
rehabilitation in a government institution. So, in real The accused was apprehended for extortion. First, “[a]
life, if the PAO, if the charge is illegal use, the counsel person apprehended or arrested” cannot literally mean
would ask the accused to just admit if you are indeed a any person apprehended or arrested for any crime. The
drug user. Because the penalty is just rehabilitation. He phrase must be read in context and understood in

77 |
consonance with R.A. 9165. Section 15 comprehends immediately upon completion of the said examination
persons arrested or apprehended for unlawful acts and certification;
listed under Article II of the law. To make the provision
The law provides that the apprehending team having initial
applicable to all persons arrested or apprehended for
custody of the dangerous drugs seized and confiscated must
any crime not listed under Article II is tantamount to
physically inventory the same and photograph the same in
unduly expanding its meaning. Note that accused
the presence of the accused or his representative or his
appellant here was arrested in the alleged act of
counsel. In the presence of a representative, from the DOJ
extortion.
or a representative from the media and an elected public
SECTION 21 – PROCEDURE IN THE SEIZURE AND official. They must be required to sign the inventory receipts
CONFISCATION OF DANGEROUS DRUG (RA and they shall be given a copy thereof. So, there must be
10460) physical inventory of the drug seized and there must be also
a taking of photographs of the said drugs. In the presence of
“(1) The apprehending team having initial custody and
whom? The accused or the one found in possession or his
control of the dangerous drugs, controlled precursors
counsel or his representative; in the presence of a duly
and essential chemicals, instruments/paraphernalia
elected public official; in the presence of either a DOJ or
and/or laboratory equipment shall, immediately after
media representative.
seizure and confiscation,
In the case of a DOJ or media representative, any of the two
a. conduct a physical inventory of the seized
may be present. It is not required that both be present. The
items and
law recognizes the fact tat it is hard for both of them to be
b. photograph the same in the presence of the present. Therefore, any of the two may be present. But the
accused or the person/s from whom such accused or his representative and a duly elected public
items were confiscated and/or seized, or official must necessarily be present at the time of the
his/her representative or counsel, with an inventory and at the time of the said taking of photographs
elected public official and a representative of of the said dangerous drugs.
the National Prosecution Service or the media
who shall be required to sign the copies of the
inventory and be given a copy thereof: Q: What if the police officers failed to comply with this
procedure? In People v. Sta. Maria, the police officers
Provided, That the physical inventory and photograph
failed to comply with this procedure however there was
shall be conducted at the place where the search warrant
conviction. However, in the case of Dolera v. People; the
is served; or at the nearest police station or at the
police officers failed to comply with Sec. 21 procedure and
nearest office of the apprehending officer/team,
this time there was an acquittal. Why is there an acquittal in
whichever is practicable, in case of warrantless seizures:
the case of Dolera and why is there a conviction in the case
Provided, finally, That noncompliance of these
of Sta. Maria?
requirements under justifiable grounds, as long as the
integrity and the evidentiary value of the seized items A: The Supreme Court held that even if there is failure
are properly preserved by the apprehending to comply with the procedure underlined in Sec 21 of RA
officer/team, shall not render void and invalid such 9165 by the arresting officers, there will still be
seizures and custody over said items. conviction if the said non-compliance is due to
justifiable reasons and provided that the police officers
“x x x
were able to preserve the integrity and evidentiary bond
“(3) A certification of the forensic laboratory of the confiscated dangerous drugs this is in consonance
examination results, which shall be done by the forensic with the chain of custody rule.
laboratory examiner, shall be issued immediately upon
If the police officers were not able to comply with the
the receipt of the subject item/s: Provided, That when
procedure due to justifiable cause, they must be able to
the volume of dangerous drugs, plant sources of
preserve the integrity and evidentiary bond of the
dangerous drugs, and controlled precursors and
confiscated dangerous drug that is; right after
essential chemicals does not allow the completion of
confiscation, it must be marked to ensure that it was the
testing within the time frame, a partial laboratory
dangerous drugs taken from the accused and must be
examination report shall be provisionally issued stating
turned over to the forensic laboratory for testing.
therein the quantities of dangerous drugs still to be
examined by the forensic laboratory: Provided,
however, That a final certification shall be issued

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CHAIN OF CUSTODY RULE A: In the first problem, it will be an acquittal. Because

in the first problem, the police officers were not able to
⮚ Chain of Custody Rule is defined as the duly preserve the integrity and evidentiary value of the
recorded authorized movements and custody of dangerous drugs. But in the second problem, it would
dangerous drugs from the time of be a conviction. Because in the second problem, the
confiscation/seizure to the receipt in the forensic police officers were able to preserve the integrity and
laboratory to safekeeping to presentation in court evidentiary value of the dangerous drugs. Where lies the
for destruction (People v. Gutierrez) difference? In the first problem, there was no marking.
⮚ The purpose of Chain of Custody rule is to ensure After confiscating the drugs, they were inventoried and
that the dangerous drug seized/confiscated photographed. The police officers did not mark them
from the accused is the very same individually. Therefore, they can be contaminated; they
dangerous drug which has been tested by can be switched with other drugs confiscated from other
the forensic chemist and it is the very same offenders. In the second problem, each of the said 10
dangerous drug presented in court that is; plastic sachets were marked with the initials of the
there has been no substitution of evidence. accused as well as exhibits 1 to 10, and the signature of
Dangerous drugs are so small. There can be a the arresting officer. Therefore, it cannot be
replacement of the effects therefore this Chain of contaminated or switched with any other dangerous
Custody rule will ensure that there will be no drugs confiscated. So, in the first problem, acquittal. In
substitution of the very same dangerous drug the second problem, conviction because in the second
seized/confiscated from the accused at the time problem, the apprehending police officers were able to
that they were presented to the court. preserve the integrity and evidentiary value of the drugs
seized.
Q: The police officers received a call. Based on the trusted
informant on the other end of the line, W, a drug peddler, Q: X was charged with illegal possession of dangerous drugs.
was at the back of the parking lot near the public market During arraignment, he pleaded not guilty. During pre-trial,
selling shabu. The police officers immediately went to the his counsel moved to the court that, “Your Honor, my client,
place. They just passed by the barangay office and requested the accused X, is willing to enter to a valid plea-bargaining
the barangay chairman to go with them. The barangay agreement. If you will allow, your honor, my client is willing
chairman went with them. And when they reached the said to plead guilty from illegal possession to illegal use of
place, there they found X engaged in the act of selling shabu. dangerous drugs. Anyway, you honor, in the Information, it
X was arrested. The shabu that he was selling were all was alleged that he was only caught in possession of 0.001
confiscated. It contains 10 plastic sachets all containing gram. So, he’s going to plead guilty, your honor for illegal
shabu. Thereafter, they were inventoried; photographs were use, if your honor would allow a valid plea-bargaining
taken in the presence of the said accused X and in the agreement.” The judge said, “no. it is clear under Section 23
presence of the barangay chairman. Thereafter, such were of RA 9165 that ‘anyone charged with violation of RA 9165
brought to the crime lab. The said plastic sachets of shabu cannot avail of a plea-bargaining agreement.’” Is the judge
were all positive for methamphetamine hydrochloride. correct?
Based on the facts, if you were the judge, would you convict
or acquit X? A: The judge is wrong. Although under Section 23, the
law provides “any person charged for violation of RA
What if in the same problem, the police officers got a call; the 9165 cannot avail of the benefit of a plea-bargaining
informant told them that X, a drug peddler, was selling drugs agreement”, Section 23 has been declared
at the parking lot behind the public market. They went to the unconstitutional by the SC in the case of Estipona
place, they brought along only the said barangay chairman. v. Judge Lobrigo. In such case, the SC held that
Upon reaching the place, they found X in the act of selling Section 23 which prohibits plea-bargaining in case of
shabu. They confiscated each of the 10 plastic sachets. After persons accused under RA 9165 is unconstitutional
confiscation, they marked each one of them with the initials because it encroaches upon the power of the SC to
of X. Thereafter, they placed there “Exhibit 1, 2, 3, 4” up to provide rules and regulations for the judiciary. The
10, and then it was signed by the seizing officer. Thereafter, Rules of Court is provided for, promulgated by the SC;
they were inventoried. Thereafter, they were taken it will be the rules for all those in the judiciary. Since the
photographs. They were brough to the crime lab and they ROC allows plea-bargaining, it applies to all crimes even
tested positive. X was charged with illegal sale. If you were violations of RA 9165. Therefore, Section 23 is
the judge, is it a conviction or an acquittal? UNCONSTITUTIONAL, plea-bargaining is allowed
in case of violations of RA 9165.

79 |
Q: X was charged with illegal possession of drug moment it was allegedly transmitted to the Batangas
paraphernalia. After trial on the merits, the judge found him Provincial Crime Laboratory on 27 May 2004 until it
guilty and imposed upon him a maximum penalty of four was allegedly delivered to the Regional Crime
years. Instead of filing an appeal, since the penalty imposed Laboratory on 4 June 2004. There was no evidence
upon him is only four years – that is within the presented how the confiscated sachets of shabu were
probationable penalty – he applied for probation. The judge stored, preserved or labeled nor who had custody prior
denied the application for probation. The judge said that to their delivery to the Regional Crime Laboratory and
since the crime he committed is a violation of RA 9165, under their subsequent presentation before the trial court.
any and all circumstances, you cannot avail of probation. Is Since the failure of the prosecution to establish every
the judge correct? link in the chain of custody of the illegal drug gravely
compromised its identity and integrity, which illegal
A: The judge is wrong. Because under Section 24, only drug is the corpus delicti of the offense charged against
those offenders convicted of drug trafficking and drug appellant, his acquittal is therefore in order.ch
pushing cannot avail of the benefit of probation. So if he
is found guilty of any other crime outside trafficking, People v. Badillo
outside pushing, he can apply be given the benefit of The prosecution was able to demonstrate that the
probation, provided the penalty imposed on him is six integrity and evidentiary value of the confiscated drug
years or below six years, within the probationable had not been compromised because it established the
penalty. crucial link in the chain of custody of the seized item
from the time it was first discovered until it was brought
In the case of People v. Morilla, the accuseds were to the court for examination. The chain of custody rule
charged as conspirators in transporting dangerous requires the identification of the persons who handled
drugs. In the case of People v. Rolando Laylo, the the confiscated items for the purpose of duly monitoring
accused was convicted of attempted illegal sale of the authorized movements of the illegal drugs and/or
dangerous drugs. Although RA 9165 is a violation of paraphernalia from the time they were seized from the
special penal law and although we have learned in Book accused until the time they are presented in court. In
1 that in case of violations of special penal laws, we do this case, the facts persuasively proved that the sachet
not consider, as a rule, circumstances provided for of shabu presented in court was the same item seized
under the RPC except when the SPL provides otherwise. from appellant. The integrity and evidentiary value
And here, the SPL RA 9165 provides otherwise under thereof were duly preserved. The marking and the
Section 26. handling of the specimen were testified to by PO2 Paras
and PO2 Espadero. During the trial, the prosecution
Q: What if a person is charged for illegal possession of
and the defense entered imto a stipulation that
dangerous drugs and during his arraignment, he pleaded not
witnesses PO2 Espadero and P/Sr. Insp. Libres (the
guilty and during the pre-trial, he said that he will change his
forensic chemist) could identify the subject specimen as
plea if he will be allowed to plead guilty for a lesser offense
well as the documents they prepared. The aforesaid
of illegal possession of drug paraphernalia. So he wanted to
witnesses testified about every link in the chain, from
avail of the plea-bargaining rule under the rules of court.
the moment the seized item was picked up to the time it
Under the plea-bargaining rule, you can plead guilty to a
was offered into evidence in court.
lesser offense provided that the said lesser offense is
necessary included in the offense charged. Here, the charge SECTION 24 – APPLICABILITY OF THE
is illegal possession of dangerous drugs; can he plead for a PROBATION LAW FOR DRUG TRAFFICKERS AND
lesser offense of illegal possession of drug paraphernalia? PUSHERS.
A: He cannot because Sec. 24 of R.A. 9165 provides ⮚ Any person convicted for drug trafficking or
that any person charged of pushing and drug trafficking pushing under this Act, regardless of the penalty
cannot avail of the plea-bargaining under the rules of imposed by the Court, cannot avail of the privilege
court. Therefore any person charged in violation of any granted by the Probation Law or Presidential
of the punishable acts under R.A. 9165 cannot plead Decree No. 968, as amended.
guilty to a lower offense.
SECTION 25 – A POSITIVE FINDING FOR THE USE
People v. Enumerable OF DANGEROUS DRUGS SHALL BE A
QUALIFYING AGGRAVATING CIRCUMSTANCE
In this case, there was a glaring gap in the custody of the
illegal drug since the prosecution failed to sufficiently
establish who had custody of the illegal drug from the

80 |
⮚ Based on the decision of the Supreme Court in dela the minds may be and, from the secrecy of the crime,
Cruz v. People, a positive finding for the use of usually inferred from proof of facts and circumstances
dangerous drugs is a qualifying circumstance will which, taken together, indicate that they are parts of
only apply if the crime committed by the said some complete whole. In this case, the totality of the
offender is a violation of RA 9165 because only then factual circumstances leads to a conclusion that Morilla
can he be subjected to a drug test. conspired with Mayor Mitra in a common desire to
transport the dangerous drugs. Both vehicles loaded
SECTION 26 –ATTEMPT OR CONSPIRACY with several sacks of dangerous drugs, were on convoy
⮚ Express exception to the general rule that in case of from Quezon to Manila. Mayor Mitra was able to drive
violation of a penal law, there are no stages and through the checkpoint set up by the police operatives.
there is no conspiracy. When it was Morilla’s turn to pass through the
checkpoint, he was requested to open the rear door for
⮚ As a rule, in case of violation of penal law, we have a routinary check. Noticing white granules scattered on
no attempted stages. In violation of special penal the floor, the police officers requested Morilla to open
laws, conspiracy unless expressly provided because the sacks. If indeed he was not involved in conspiracy
these are only for violation of the RPC, for felonies. with Mayor Mitra, he would not have told the police
One of those exceptions is under Section 26 of RA officers that he was with the mayor.
9165. Under Section 26 of RA 9165, any attempt or
His insistence that he was without any knowledge of the
conspiracy of any of the following acts shall be
contents of the sacks and he just obeyed the instruction
punished already by penalty prescribed by law:
of his immediate superior Mayor Mitra in driving the
1. Importation of any dangerous drug; said vehicle likewise bears no merit.
2. Sale, trading, administration, delivery, Here, Morilla and Mayor Mitra were caught in flagrante
distribution, transportation of dangerous delicto in the act of transporting the dangerous drugs on
drug; board their vehicles. "Transport" as used under the
Dangerous Drugs Act means "to carry or convey from
3. Maintenance of a den, dive, or resort where
one place to another." It was well established during
any dangerous drug is used in any form;
trial that Morilla was driving the ambulance following
4. Manufacture of any dangerous drug; the lead of Mayor Mitra, who was driving a Starex van
going to Manila. The very act of transporting
5. Cultivation or culture of plants which are the
methamphetamine hydrochloride is malum prohibitum
sources of dangerous drugs.
since it is punished as an offense under a special law.
If any of these acts mentioned is committed by the The fact of transportation of the sacks containing
offender, a mere attempt; or conspiracy will already dangerous drugs need not be accompanied by proof of
give rise to the crime as an exception to the rule that criminal intent, motive or knowledge.
in case of violation of penal law, there are no stages
Q: What if in the same problem, when the two police officers
in the commission of the crime and conspiracy will
saw X eating, they talked to each other; they wanted to arrest
not lie. So if any of the crime committed is any of
X. And so, police officers Y and Z seated with X at the middle.
these five acts, mere attempt will lie against the
PO Y conversed and talked with X. At that particular
offender, conspiracy will lie against the offender.
moment, PO Z was inserting a stolen wallet inside the bag of
People v. Laylo X. After inserting it, PO Y said, “you see, we are actually here
because you just committed theft; that you took this wallet.”
The charge was only attempted illegal sale of dangerous
X said that “No, I did not do any act of taking. I did not do
drugs. The sale was aborted because even before the
any act of stealing.” The police officers said, “yes you did. Let
said drug poseur was able to transfer the dangerous
me see your bag.” And when they looked at the bag, there
drug to the police officer, the police officers already
was the stolen wallet. “You see, look, there is the wallet.”
introduced themselves as such and arrested him. As
However, the owner of the canteen saw everything how PO
such, we only have attempted illegal sale of dangerous
Z surreptitiously inserted the wallet inside the bag of X.
drugs.
What crime is committed by PO Y and PO Z?
People v. Morilla
A: They are liable under Article 363 of the RPC –
In conspiracy, it need not be shown that the parties Incriminating Innocent Person. If what has been
actually came together and agreed in express terms to surreptitiously inserted on an innocent person is
enter into and pursue a common design. The assent of dangerous drugs in order to impute upon him a

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violation of RA 9165, the act is specifically punished as illegal sale is life imprisonment to death. Since he was a
Planting of Evidence punished under Section 29 of RA minor, such life imprisonment to death shall be
9165. But if what has been surreptitiously inserted on an converted to reclusion perpetua to death. Now that it
innocent person is any other thing outside drugs, in has the nomenclature of penalty in the RPC, you can
order to impute upon him the commission of a crime, now consider, the judge can now consider the privileged
the crime committed is Incriminating Innocent Person mitigating circumstance of minority. Therefore, the
under Article 363 of the RPC. penalty has to be lowered by one degree – it should be
only reclusion temporal and not life imprisonment.
Q: X was arrested by the police officers. He was caught in the
act of selling shabu. However, he was only 17 y/o at the time
of his arrest. And so, he was investigated and based on the
SECTON 98 – LIMITED APPLICABILITY OF THE
investigation, he acted with discernment in selling the
RPC
shabu. He knew that it was a criminal act; he knew it is an
illegal act; he saw on national TV the president’s war against ⮚ In Book I, under Article 10, the provisions of the
drugs. Yet according to him, he has to sell drugs for easy RPC shall apply suppletorily or supplementary to
money; he is the breadwinner; he doesn’t know how to earn the provisions of the special penal laws unless the
much money and so he sells drugs. Since he acted with special penal law provides otherwise.
discernment, he was prosecuted for Illegal Sale of Dangerous
Drugs. After trial on the merits, he was convicted by the ⮚ One of the exceptions is provided for in Sec 98 of
court; he was convicted by the RTC for Illegal Sale of RA 9165, it is provided that the provisions of RPC,
Dangerous Drugs. The penalty for Illegal Sale of Dangerous as amended, shall not apply to the provisions of RA
Drugs is life imprisonment to death. The court stated that 9165. The law uses the word shall; therefore you
“since death cannot be imposed, you are hereby convicted of cannot apply the provision of RPC to the provisions
Illegal Sale with the penalty of life imprisonment. of RA 9165.
CONTRARY TO LAW. (Signed by the Judge).” After the said ■ Exception to Section 98: If the offender is a minor
promulgation of judgment, the counsel of X filed for a offender.
Motion for Reconsideration. The counsel was questioning
the penalty imposed on his client – life imprisonment. The ⮚ Where the offender is a minor, the penalty
counsel told the court, “with all due respect, the court for acts punishable by life imprisonment to
committed an error for imposing the penalty of life death provided shall be reclusion perpetua
imprisonment because the accused was a minor at the time to death.
of the commission of the crime. Therefore, the court should
have observed and considered the privileged mitigating
circumstance of minority.” The judge however, denied the
said motion for reconsideration. Is the judge correct? Or is it
the counsel who is correct?
A: The counsel is correct and the judge is wrong. You
have learned in Article 10 of Book 1 that the provisions
of the RPC apply to violations of SPLs except when the
SPL provides otherwise. And RA 9165 is one SPL that
provides otherwise. Under RA 9165, you cannot apply
the provisions of the RPC. Under Section 98 of RA 9165,
the law provides, “the provisions of the RPC shall not
apply to violations of RA 9165.” The SC said, the law
used the word “shall.” Therefore, you cannot apply the
provisions of the RPC to violations of RA 9165.
However, there is an exception – when the offender is a
minor offender. When the offender is a minor offender
and the crime he committed by life imprisonment to
death, it shall be considered as reclusion perpetua to
death. Now that it has the nomenclature of a penalty the
same as that of the RPC, you can now apply the
circumstances provided for in the RPC. X was 17 at the
time he was caught selling illegal drugs. The penalty for

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TITLE SIX A: YES. They are liable for grave scandal. They have the
right to engage in sexual conduct but the fact that they
CRIMES AGAINST PUBLIC MORALS (Articles 200
performed the sexual conduct in Luneta Park, a public
– 202)
place makes the act offensive to public morals, decency
ARTICLE 200 – GRAVE SCANDAL and good customs and the said act does not constitute
any other violation in the RPC because they have the
Grave Scandal – a highly scandalous act offensive to good
right to engage in sexual intercourse. Therefore, the
morals, good customs and decency committed in a public
crime committed is grave scandal because they
place or within public knowledge or public view.
performed the act in a public place even if no one saw
ELEMENTS: the commission of the said act still, still because it is
performed in a public place , it is presumed that
1. The offender performs an act or acts
someone may have seen the commission of the highly
2. Such act or acts be HIGHLY SCANDALOUS as scandalous act.
offending against decency or good customs
Q: So what if a wife and a husband, celebrating their
⮚ It is necessary that the act must be highly anniversary, engaged in sexual intercourse in their terrace.
scandalous and offensive to morals, offensive So the act is committed in their premises, in the terrace of
to decency and offensive to good customs. their house. However, the gate was open and so passersby
would see them performing the sexual intercourse. Are they
3. That the highly scandalous conduct is not expressly liable for grave scandal?
falling within any other article of this Code.
A: YES. They are liable for grave scandal. The said act
⮚ The third element requires that it must not does not constitute another offense in the RPC because
expressly fall within any other article of this they have the right to engage in sexual conduct. The
code. It must not constitute any other sexual conduct was performed in the privacy of their
violation in the RPC. Grave scandal is a home however; people witnessed the commission of the
crime of last resort because you only file a said act. It now becomes a highly scandalous act because
complaint for grave scandal when the said act it is within the knowledge of the public or within public
is not punishable under any other article in view.
the RPC.
Q: What if A and B are boyfriend and girlfriend. The
4. The act or act complained of be committed in a public girlfriend is 11 yrs old and the boyfriend is 21 yrs old. And
place or within the public knowledge or view. because it is their monthsary the girlfriend thought of giving
herself as a gift and engaged in sexual intercourse in a public
⮚ Then the fourth element provides that the
place Are they liable for grave scandal?
highly scandalous act must be committed
either in a public place or within public A: NO. They are not liable for grave scandal. The man
knowledge or view. If the highly scandalous is liable for statutory rape. A man who had sexual
act is committed in a public place, the crime intercourse with a child under 12 years of age, regardless
of grave scandal will immediately arise. The of the consent, regardless of the willingness of the said
place being public, the law presumes that child, the man is liable for statutory rape. Because in so
someone may have witnessed the far as criminal law is concerned, a child under 12 yrs old
commission of the highly scandalous act. has no intelligence of his/her own and is not capable of
However, if the crime is committed or if the giving a valid consent. Therefore, even if the girl
highly scandalous act is committed in a voluntarily gave herself in so far as the law is concerned,
private place, for the crime of grave scandal to it is still statutory rape. It is not grave scandal because
arise, it is necessary that it must be witnessed the third element is wanting. The said act fall under the
by one or more persons to be said that it is violation of article of RPC that is under article 266-A for
within the public knowledge or public view. rape. As I said, grave scandal is a crime of last resort.
You only charge it when the crime committed does not
Q: So let us say that A and B are boyfriend and girlfriend and
constitute any other violation in the RPC.
it is their anniversary. They went to Luneta Park and at
exactly 12 midnight, in the middle of Luneta Park, they Q: X lives in a condominium unit in 30th floor. She wanted
engaged in sexual intercourse. No one witnessed their sexual to sunbathe so one morning, she went out to the terrace
intercourse. Are they liable for grave scandal? naked. She thereafter exercised naked. While doing so, the
men from other buildings wanted to look at her and because

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it was quite a distance, they used binoculars to see her. Is she I. Public proclamations of doctrines openly contrary to
liable of grave scandal? public morals
II. Publication of obscene literature. In case of publication
A: No. To exercise naked, it may be offensive to morals
of obscene literature, it is the author, the editor, the
especially to Filipino customs and traditions The third
owner or proprietor of the establishment that sells the
element, the act does not fall in any other violation of
said materials SHALL BE HELD CRIMINALLY
RPC. The last element, the act was performed in the
LIABLE.
privacy of her own home which is not within public
III. The third act punished is the exhibition of indecent
knowledge or view. The men who looked at her still had
shows, plays, scenes or acts in fairs, theaters, cinemas
to use gadgets or instruments in order to see her
or any other places.
exercising therefore it was not done within public
IV. Selling, giving away or exhibiting films,, engravings,
knowledge or public view. Hence, she cannot be held
sculptures or literature which are offensive to public
liable of grave scandal.
morals.
Q: A professor and a student were in a relationship. The
Q: So what if there is this building, when the person entered
professor was 25, the student was only 14 years old. They
the said building, on the floor of the said building were these
went to Luneta Park and while roaming around, the
magazines. And the magazines contain men and women
professor started touching the private parts of the student.
engaging in sexual intercourse, naked women and men, and
In front of many people, the professor took the blouse of the
other obscene materials. Who shall be held liable when the
student off and kissed her. What crime is committed? Are
place was raided by the police?
they liable for Grave Scandal?
A: The author of the said literature, the editors
A: NO. They are not liable for Grave Scandal. It is only
publishing such literature and the owner or proprietor
the professor who is liable for Qualified Acts of
of the establishment where the said magazines were
Lasciviousness. He committed acts of lasciviousness
being sold. They will be held criminally liable under
under circumstances of seduction. It is under
Article 201.
circumstances of seductions because the student is over
12 but under 18 years old—she is only 14 years old. ARTICLE 202 – VAGRANTS AND PROSTITUTES
When the professor touched her private parts, the girl
permitted it because she was seduced by the moral ⮚ Only prostitutes are held liable.
ascendancy of the professor. Hence, the crime Q: Let us say that there is this man, a healthy man and he
committed is not grave scandal, but rather acts of can look for work but he does not want to work. So he was
lasciviousness under circumstances of seduction. This is just roaming around and he saw houses of prostitutes or
also because grave scandal is a crime of last resort. houses of ill-fames and he is always in this places. Can he be
Q: There was a raid along Recto Avenue of a store selling held liable for vagrancy?
bold magazines which depicted pictures of men and women A: NO, because vagrancy has been
naked and engaged in sexual intercourse. By virtue of a decriminalized by R.A. No. 10158 which was
search warrant, the police officers raided the said store. All approved on March 27, 2012. We no longer have the
of the bold magazines were confiscated, and the store owner crime of vagrancy. No person can longer be prosecuted
as well as his employees were arrested. What crime may they for being a vagrant.
be charged with?
✰ How about prostitution? Is there still a
A: They may be charged of violation of Art. 201. They crime for prostitution?
were selling magazines of obscene literature. In this
⮚ YES.
case, it is not only the owner of the store and his
employees who is held criminally liable, but also the PROSTITUTE – is any woman who, for money or profit,
author, publisher and editor of the said magazines. indulges in sexual intercourse or lascivious conduct. So it is
the work or job of a woman. Note that the law defines it to be
a woman therefore; a man cannot be considered a prostitute.
ARTICLE 201 – IMMORAL DOCTRINES, OBSCENE Before, if a man engages in sexual intercourse or lascivious
PUBLICATIONS AND EXHIBITIONS, AND conduct he can be punished under Article 202 but now since
INDECENT SHOWS vagrancy has been decriminalized by R.A. No. 10158, he can
no longer be prosecuted. Only prostitutes who are women.
ACTS PUNISHED:

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3. That the judgment is unjust

TITLE SEVEN 4. The judge knows that his judgment is unjust
CRIMES COMMITTED BY PUBLIC OFFICERS UNJUST JUDGMENT – is one which is contrary to law,
(Articles 203 – 245) or one that is not supported by evidence or both.
ARTICLE 203 – PUBLIC OFFICERS ⮚ If the source of an unjust judgment is mere error on
the part of the judge, then the said judge is not civilly,
REQUISITES TO BE A PUBLIC OFFICER:
criminally, and administratively liable.
1. One must be taking part in the performance of public
In a case submitted to him for decision, the judge
functions in the Government or one must be performing
wrongfully interpreted a provision of law. It is a
in said Government or in any of its branches public
new law, there is no jurisprudence yet, the judge
duties as an employee, agent or subordinate official, of
wrongfully interpreted it. The judge cannot be held
any rank or class; and
civilly, administratively, and more so, criminally
2. That his authority to take part in the performance of liable. The said judgment is an unjust judgment
public functions or to perform public duties must be – because it was based on this error in the
interpretation of the law. However, there was no
a. by direct provision of the law; or
intent on the part of the said judge. Considering the
b. by popular election; or basis of the unjust judgment is mere error. The said
judge acted in good faith. This is Judicial
c. by appointment by competent authority
immunity from suit.
OATH OF OFFICE
⮚ If however, the unjust judgment is based on bad faith,
If he is high-ranking official, the oath is also before a that is, it is based on ill-motive on the part of the said
high-ranking official. If he is a cabinet secretary, the judge, therefore, he can be held liable criminally, civilly
oath is before the President or to the Supreme Court and administratively.
Chief Justice.
For him to be criminally liable, knowing that he
If he is only an ordinary employee, still he has oath of rendered an unjust judgment, it is necessary that
office. It is a document which is entitled, “OATH OF the unjust judgment is rendered out of ill-motive or
OFFICE”, he merely signs it. bad faith, out of greed, revenge, envy, or any other
Felonies under TITLE SEVEN are felonies in violation of this ill-motive. Hence, he is known to have rendered an
oath of office, they can either be: unjust judgment.
MISFEASANCE – A public officer performs an official ARTICLE 205 – JUDGMENT RENDERED

act in a manner not in accordance with what the law THROUGH NEGLIGENCE
provides. Improper performance of some act which ⮚ This is again committed by a judge, who in a case
might be lawfully done (Article 204 to 207). submitted to him for decision, renders manifestly
MALFEASANCE – A public officer performs in his unjust judgment.
public office an act prohibited by law. Performance of ELEMENTS:
some act which ought not to be done (Article 210-211).
1. The offender is a judge
NON-FEASANCE – A public officer knowingly,
willfully refuses or refrains from doing an act which is 2. That he renders a judgment in a case submitted to
his official duty to do. Omission of some act which ought him for decision
to be performed (Article 208). 3. That the judgment is manifestly unjust
ARTICLE 204 – KNOWINGLY RENDERING 4. The it is due to his inexcusable negligence or
UNJUST JUDGMENT ignorance
ELEMENTS: MANIFESTLY UNJUST JUDGMENT – means that it is
1. The offender is a judge evident that a judgment is unjust. A first year law student
would know that it is unjust, therefore it is manifestly unjust
2. That he renders a judgment in a case submitted to judgment, because he acted in inexcusable negligence or
him for decision ignorance.

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ARTICLE 206 – UNJUST INTERLOCUTORY ⮚ Otherwise known as DERELICTION.

ORDER
⮚ Can only be committed by a public officer or an officer
ELEMENTS: of the law who has the duty to cause the prosecution of
1. The offender is a judge or to prosecute the offenders. The said public officer
commits dereliction of duty in the prosecution of
2. That he performs any of the following acts: offenses under any of the following circumstances:
a. knowingly renders unjust interlocutory order a. knowing the commission of the crime, he
or decree does not cause the prosecution of the
b. renders a manifestly unjust interlocutory criminal, or
order or decree through inexcusable b. knowing that a crime is about to be
negligence or ignorance committed, he tolerates its commission and
ARTICLE 207 – MALICIOUS DELAY IN THE the said offender acts with malice and
ADMINISTRATION OF JUSTICE deliberate intent to favor the violator of the
law
ELEMENTS:
⮚ The dereliction of duty in the prosecution of offenses
1. The offender is a judge cannot be committed by just any public officer.
2. There is a proceeding in his court
⮚ The public officer must be charged with the prosecution
3. He delays the administration of justice of the cases or he is the one who can cause the
prosecution of these offenders.
4. The delay is malicious, that is, delay is caused by the
judge with deliberate intent to inflict damage on CHARGED WITH THE PROSECUTION OF THE
either party in the case. OFFENDERS:
ARTICLE 208 – PROSECUTION OF OFFENSES; ⮚ Fiscals

NEGLIGENCE AND TOLERANCE
⮚ Prosecutors
ACTS PUNISHABLE:
⮚ State Prosecutors
I. By maliciously refraining from instituting prosecution
against violators of the law THOSE WHO CAN CAUSE THE PROSECUTION OF
THE OFFENDERS:
⮚ Note that the first crime, he knows that a crime
was committed but he does not prosecute the ⮚ Judges
offender;
⮚ Barangay Chairman
II. By maliciously tolerating the commission of offenses the
⮚ Persons in authority
second act, a crime was about to be committed, he
tolerates its commission. It must be done with MALICE. ARTICLE 209 – BETRAYAL OF TRUST BY AN
Absent malice, Article 208 will not apply. ATTORNEY OR SOLICITOR – REVELATION OF
SECRETS
ELEMENTS OF DERELICTION OF DUTY IN THE
PROSECUTION OF OFFENSES: ACTS PUNISHED:
1. That the offender is a public officer or officer of the I. By causing damage to his client, either
law who has a duty to cause the prosecution of, or to
prosecute offenses. ⮚ by any malicious breach of professional duty
2. That there is a dereliction of the duties of his office; ⮚ by inexcusable negligence or ignorance
that is knowing the commission of the crime, he does
■ THERE MUST BE DAMAGE TO HIS CLIENT
not cause the prosecution of the criminal or knowing
that a crime is about to be committed, he tolerates its II. By revealing any of the secrets of his client learned by
commission. him in his professional capacity.
3. That the offender acts with malice and deliberate ■ DAMAGE IS NOT NECESSARY
intent to favor the violator of the law.

86 |
III. By undertaking the defense of the opposing party in the A: Atty. A is not liable under Article 209. The
same case, without the consent of his first client, after secrets being referred to under Article 209 refers to the
having undertaken the defense of said first client or past crimes of the said client and it refers to the facts
after having received confidential information from said and circumstances related to the crime which is being
client. handled by the said Attorney or counsel.
It does not refer to future crimes that are still about to
■ IF THE CLIENT CONSENTS TO THE
be committed. When a lawyer takes his oath of office, he
ATTORNEY’S TAKING THE DEFENSE OF
says, or he promise, he swears that he shall be liable not
THE OTHER PARTY, THERE IS NO CRIME
only to the client, but also to the state, to the
⮚ Under Article 209, this betrayal of trust is in addition to government.
a proper administrative case which may be filed against It is his duty to the Government, to the State of any
an attorney or solicitor. So aside from the criminal case future crime that is about to be committed more than
in violation of Article 209, he can also be charged in a his duty to his client. Hence, in this case, since it refers
case also for disbarment, for violation of lawyer’s oath to a future crime, for the protection of the state and the
of duty may be filed against him, and these two cases citizenry, it is incumbent upon him to divulge, disclose
can be proceeded at the same time. or to reveal the said secrets.
Q: The accused was convicted by the court, and the said Q: What if A filed a case against B, Atty. X was the counsel
accused asks his counsel to file his motion for of A, A failed to give Atty. X his appearance list for 5
reconsideration. Despite the lapse of 15 days, the counsel consecutive hearings, no appearance list. So Atty. X, filed a
fails to file the MR without any justifiable reason. The motion to withdraw as counsel of A. The said motion to
conviction became final and executory. He was brought to withdraw was with the consent OF A, because without the
the National Bilibid Prison to suffer/serve the final sentence. consent of A, the said motion to withdraw will not be granted
The judgement became final and executory because his by the court. So the court granted and Atty. X is no longer
counsel failed to file the MR within the prescribed period of the counsel of A. When B learned about this, went
time. What remedy does the accused have? immediately to the office of X and secured the services of X.
Atty. X signed a contract and he is now the counsel of B. Is
A: He can file a case against his counsel for Atty. X liable for betrayal of trust by an attorney?
violation of Article 209. Because of the counsel’s
A: Atty. X is liable for betrayal of trust by an
malicious breach of his professional duty, he caused
attorney. He takes the case of B, the opposing party,
great damage to his client. The conviction became final
even after he has already taken the case of A and after he
and executory because he failed to file the MR during
has acquired valuable information about his client. How
the prescribed period. Aside from the criminal charge,
can he prevent himself from being convicted of the
he can be charged with violation of the Lawyers’ Code of
betrayal of trust?
Ethics.
⮚ He must first secure the consent of the said first
Q: A breach of contract was filed by X against Y. The lawyer client
of X is Atty. Z, so it was Atty. Z who filed the case against Y In the said problem, there was no consent. The said
(civil action for specific performance). During the hearing of consent was only in the motion to withdraw. The said
the case, Atty. Z appeared, however, X failed to give the consent in the motion to withdraw is not the consent on
appearance fee. In the said next 5 hearings, Atty Z appeared the acceptance of the case. For every motion to
but X still failed to give the appearance fee. Atty Z already withdraw, there must be a consent written, otherwise
confronted X and X divulged to him that he has no money to the court will not grant the motion to withdraw. The
pay the appearance fee. Atty. Z asked permission from X to consent here is to secure or to accept the service s of the
withdraw as his counsel. X agreed. Atty. Z filed his motion to other party.
withdraw as counsel, which was granted by the Court Since consent was not given, he is liable for betrayal of
because it was done with the consent of X. However, as soon trust by an attorney.
as Atty. Z was no longer the counsel of X, Y took the services
of Atty. Z. Atty. Z took the engagement. Atty. Z is now the a. Just remember aside from betrayal of trust, an attorney
counsel of Y in the very same case he filed against Y as the or solicitor can also be held liable of administrative case.
counsel of X. Is Atty. Z liable for Art. 209? So there may be disbarment.
b. He can be disbarred or he can be suspended by reason
A: YES. He is liable not only administratively but also of committing any of these acts.
criminally.
ARTICLE 210 – DIRECT BRIBERY

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ACTS PUNISHABLE: doing something which it is his official duty to do

so.
I. By agreeing to perform, or by performing, in
consideration of any offer, promise, gift or present – an 4. That the act which the offender agrees to perform
act constituting a crime, in connection with the or which he executes be connected with the
performance of his official duties. performance of his official duties.
ELEMENTS: FIRST ACT - By agreeing to perform or performing,
in consideration of offer or promise, gift or present
1. The offender be a public officer within the scope
any act constituting a crime in connection with the
of Article 203
performance of his official duties
2. The offender accepts an offer or a promise or
⮚ If the thing which the public officer is required to do,
receives a gift or present by himself or through
is an act which will constitute a crime, a mere
another.
agreement to do so, will already give rise to direct
3. That such offer or promise be accepted, or bribery. It is not necessary that he actually commits
received by the public officer with a view of the crime, it is not necessary that he actually receives
committing some crime. the gift or present.
■ A MERE AGREEMENT WILL SUFFICE.
4. That the act which the offender agrees to perform
or which he executes be connected with the SECOND ACT – By accepting a gift in consideration
performance of his official duties. of execution of an act which does not constitute a
crime in connection with the performance of his
II. By accepting a gift in consideration of the execution of
official duty.
an act which does not constitute a crime, in connection
with the performance of his official duty. ⮚ If the thing that a public officer is required to do,
ELEMENTS: does not constitute a crime, under the Second Act,
mere agreement will not suffice. There must be
1. The offender be a public officer within the scope actual acceptance of the thing. There must be
of Article 203 acceptance of the gift, in consideration of the
2. The offender accepts an offer or a promise or execution of an act which does not constitute a crime
receives a gift or present by himself or through in connection with the performance of his official
another. duty because the thing that he is being required to
do is not a criminal act. It is his official thing to do,
3. That such offer or promise be accepted, or but he does not want to do it without the bribe first
received by the public officer in consideration of to be given to him.
the execution of an act, which does not constitute ☝ So it is only upon ACCEPTANCE OF THE BRIBE
a crime, but the act must be unjust that criminal liability for direct bribery will arise.
4. That the act which the offender agrees to perform THIRD ACT - By agreeing to refrain or by
or which he executes be connected with the refraining from doing an act which is his official
performance of his official duties. duty to do, in consideration of an offer, promise,
III. By agreeing to refrain, or by refraining, from doing gift or present.
something which it is his official duty to do, in
⮚ If the thing that a public officer is required to do, is
consideration of gift or promise.
to refrain from doing an act which is his official duty
ELEMENTS: to do, a mere agreement to refrain to do an act will
already give rise to direct bribery. It is not necessary
1. The offender be a public officer within the scope
to refrain from doing an act, it is not necessary to
of Article 203
receive the said gift.
2. The offender accepts an offer or a promise or
☝ Whatever may be the act constituting direct bribery, in
receives a gift or present by himself or through
order to amount to direct bribery, it must always be in
another.
connection with the performance of his official duty. If
3. That such offer or promise be accepted, or it is not in connection with his official duty, it could
received by the public officer to refrain from other crime like estafa or swindling, but not direct
bribery.

88 |
Acejas, III v. People The mother gives a promise under circumstances in

which the public officer becomes liable for direct
It is the second act of direct bribery that has been
bribery. She is liable for corruption of public official.
violated. The second act because it is the duty of the said
The mother is also liable for falsification of a public
BID agent to return the passport. The duty to return the
document as a principal by inducement. Without the
passport is not a criminal act. It is also not an act of
bribe, without the said inducement, the said public
refraining to do so. But he does not want to perform the
officer will not have committed the said falsification.
act without the bribe, so he becomes liable under the 2nd
act. ARTICLE 211 – INDIRECT BRIBERY
Q: What if a mother wanted her daughter to work in another ELEMENTS:
country. The daughter was still a minor, 16 years old. The
1. The offender is a public officer
mother asked the civil registrar to alter the birth date or the
date in the certificate of live birth with a promise that the 2. That he accepts gifts
first 2 months of the salary of the daughter will be given to
3. That the gifts are offered to him by reason of his
the civil registrar. The civil registrar altered the date in the
office.
birth certificate. What crime/crimes is/are committed by the
civil registrar and by the mother? ⮚ Indirect Bribery is committed if the public officer
A: The civil registrar is liable for direct bribery accepts any gift or present by reason of his office that
because he agreed to perform an act constituting a crime he owns. In case of indirect bribery, the public officer
in consideration of a promise that the 2 months salary is not deemed required to do a thing. By the MERE
will be given to him. The said act is in connection with ACCEPTANCE, indirect bribery is consummated.
his performance of his official duty. Therefore he is NO ACCEPTANCE, NO CRIME IS COMMITTED.
liable for direct bribery. He actually performs the act, he ⮚ It is always in the consummated stage because the
actually committed a crime, therefore he is also liable public officer is not being asked to do an act. The gift
for the falsification of a public document because he was merely given and accepted because of his office.
actually altered the birth date which is a very important
date in the birth certificate so he is also liable for the Q: A is the newly appointed secretary of DENR. On his first
falsification of a public document. day of office, Mr. X visited him, paid a courtesy call. Mr. X is
Without the said bribe, the mother would not have the president of a big logging company. They exchanged
committed falsification, so are you going to complex some pleasantries, thereafter, when this president of the
them? because direct bribery is a necessary means to logging company left, he placed a small box on the table.
commit falsification. When he left, the new DENR secretary opened the box and
■ Even if in reality, they should be complex because it was a key to a car parked in front of the building. The new
direct bribery is a necessary means to commit DENR secretary used it and drove the car. What is the crime
falsification, you cannot complex them because committed?
ARTICLE 210 PROHIBITS SUCH A: He is liable for Indirect Bribery. The president
COMPLEXITY OF CRIMES. of the logging company does not require him to do
Under Article 210, it is expressly provided that the anything, it was merely given to him because he was
penalty for direct bribery shall be IN ADDITION TO newly appointed as the DENR secretary. His acceptance
THE LIABILITY FOR THE CRIME brings about consummated indirect bribery; therefore,
COMMITTED. Here, he actually altered, actually indirect bribery has no attempted or frustrated stage
committed the crime, therefore his liability for because outside acceptance, no crime is committed.
falsification is in addition for his liability for direct ARTICLE 211-A – QUALIFIED BRIBERY
bribery. Therefore, 2 separate distinct charges have to
be filed against the civil registrar, we have direct bribery ELEMENTS:
and the other one is falsification of the public document. 1. The offender is a public officer entrusted with law
The mother is liable for corruption of public enforcement.
official (Art. 212). Direct bribery is the crime of the
public officer who receives the bribe. On the other hand, 2. The offender refrains from arresting or prosecuting
the private individual or the public officer who gives the an offender who has committed a crime punishable
bribe is liable for corruption of public official under Art. by reclusion perpetua and/or death
212. (Refer to Art. 212 – elements)

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3. The offender refrains from arresting or prosecuting punishable by reclusion temporal, therefore, qualified
the offender in consideration of any promise, gift, or bribery is not applicable.
present.
He committed direct bribery, because he accepts a
⮚ Qualified bribery is committed by any public officer who bribe, in consideration of an act of refraining to arrest
is in charge with the enforcement of the law. So, in order the said criminal. He actually refrains from arresting
to amount to qualified bribery, it is necessary that the and prosecuting the criminal, therefore in addition to
offender whom the public officer does not want to direct bribery, he also committed dereliction of duty in
prosecute must have committed a crime punishable by the prosecution of offenses because he actually
reclusion perpetua and/or death. committed dereliction of duty by refraining from
arresting the person who has actually committed a
⮚ If the public officer himself solicits the bribe, the penalty crime. So this time, there are 2 crimes committed:
is death ■ Direct bribery
⮚ This Article 211-A is an insertion brought about by RA ■ Dereliction of duty in the prosecution of
7659, The Heinous Crime Law. offenses
Q: A police officer was conducting a patrol. He saw a man Q: X was charged before the public prosecutor for
behind the tree, looking at the other house adjacent to the the crime of murder. There was a preliminary investigation
tree as if waiting for someone. So the police officer parked conducted. Afterwards, the case was submitted for decision.
his vehicle and observed what this man would do. The X made a follow-up if the said decision of the fiscal is out.
moment that a man came out of the gate of the house, this But the fiscal said that the resolution is not yet finished as so
man hiding behind the tree, immediately went directly to X waited for the public prosecutor and offered the latter 2
him and shot him 5 times, and killing him instantly. Then, million pesos in exchange of finding of no probable cause.
the said man rode a motorcycle and left. The police officer Since the public prosecutor is in need of money, he accepted
chased him. The Police officer arrested him, however, he it and resolved the case in favor of X. Public prosecutor
gave the police officer P500,000 and told the police officer, dismissed the case but there is really probable cause. What
“Mr. Police officer, you saw nothing, you heard nothing.” crime/ crimes were committed by X and public prosecutor.
And the police officer allowed him to leave. What
crime/crimes is/are committed by the said police officer?
A: The said police officer is liable for qualified A: Public prosecutor is liable for Qualified Bribery.
bribery. The crime committed by the said man is The crime charged is murder with penalty of RP to death.
murder, because obviously, in his act of killing, there Since he doesn't want to prosecute X despite finding of
was treachery, the other party was defenseless and probable cause, because of the bribe money given to him. X,
obviously the said man deliberately and consciously on the other hand, will be liable for corruption of public
adopted the ways means and methods employed by him officials.
in killing the victim. Since there was treachery, the
crime committed is murder, punishable by reclusion
perpetua to death. His failure to arrest and prosecute Q: What if in the same problem this time, the case filed
this man constitute qualified bribery because he did so against X was homicide. After preliminary investigation, the
after accepting P500,000. case was submitted for decision. Public prosecutor saw that
there was probable cause. But X talked to public prosecutor
Q: What if a police officer was conducting a patrol, he saw A and offered him 1 million pesos in exchange for the dismissal
and B fighting, boxing each other, killing each other, until of the case for a finding of no probable cause. Fiscal accepted
they already on the ground. In the course thereof, A pulls out the money and dismissed the case. What crime or crimes
his balisong and stabbed B several times on the heart, a vital were committed by public prosecutor?
organ. B died instantly. Thereafter, A ran away, the police
officer tried to catch up with A and he was able to arrest A.
However A, gave the police officer P100,000. The police A: The public prosecutor is liable for bribery under
officer allowed him to leave. What crime/crimes is/are the 3rd act. The public prosecutor refused or refrained
committed by the said police officer? from executing his duty of prosecuting X because of the 1
A: The crime committed by A in killing B is precedent million bribe money given to him. Since he refrained from
by a fight, therefore it is merely homicide. Homicide is prosecuting X, he is also liable for dereliction of duty in the
punishable only by reclusion temporal. Since it is only prosecution of offenses under Article 208.

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Q: X was charged with a crime of homicide before the trial presented by the prosecution of proving the guilt beyond
court. The case is now submitted for decision and X knew he reasonable doubt, he ruled for an acquittal. He became
would be convicted because the prosecution was able to partial in favor of the accused and he acted with evident bad
prove his guilt beyond reasonable doubt. However, X does faith, the prosecution proved the guilt, yet the judge
not want to rot in jail. X, together with his counsel went to acquitted the said accused.
the judge. They had a closed-door meeting with the said
judge in his chamber. X and his counsel offered P50 Million
in exchange for an acquittal. The judge was in need of money c. The said accused caused any undue injury
and so he accepted the offer. Thereafter, on the day of the to any party, including the government, or
promulgation of judgment despite the fact that the gave any private party unwarranted
prosecution was able to prove the elements of the crime and benefits, advantage, or preference in the
the identity of X as the person who killed the victim, the discharge of his official functions.
judge ruled for an acquittal because of the P50M that he
received.
The judge caused undue injury not only to the private
complainant, not only to the heirs of the victim of the
The judge was charged with four crimes: Direct Bribery, accused but also to the State because of X’s disturbance of
Knowingly rendering unjust judgment, Violation of Sec.3(e) public order. He gave X, a private party, unwarranted
of RA 3019 and Plunder. Is the judge liable of all four cases? benefits, advantage and preference. All the elements of
Sec.3(e) of RA 3019 are present.
A: The judge is liable for Direct Bribery. He is a public • Is the judge liable of Plunder?
officer. Which of the acts of Direct Bribery would apply to The judge however is not liable of Plunder. In
him? It is the duty of the judge to convict the accused. plunder, even if the amount received is P50M, the law
Nevertheless, the judge doesn’t want to convict the accused requires the said offender must have committed a series or
because of the bribed money given to him despite the combination of overt or criminal act. In this case, the judge
overwhelming evidence. Therefore, the judge is liable performed only one act of receiving the P50M. Therefore, it
under the first act. He performs a criminal act. What is will not give rise to plunder even if the amount he amassed
the criminal act? That is Knowingly rendering unjust is amounted to P50 M. There must be a series or
judgment – violation of Art. 204. The judge knew that combination of overt or criminal acts. A single act will not
it should be a conviction. The evidence presented by give rise to the crime of plunder.
prosecution was overwhelming and was able to prove the
accused’s guilt beyond reasonable doubt and his identity yet
the judge ruled for an acquittal. It is an unjust judgment So, the judge is liable of three crimes: Direct
because such judgment is contrary to law and not supported Bribery, Knowingly rendering unjust judgment and
by the evidence presented by the prosecution. Violation of Sec.3(e) of RA 3019.
• Is the judge liable for the third charge? Q: What if the judge argued that he is already liable of Direct
Bribery and Knowingly rendering unjust judgment
therefore, he can no longer be held liable for Violation of
The elements of Sec.3(e) of RA 3019 are: Sec.3(e) of RA 3019. It will amount to duplicity of offenses.
a. The offender is a public officer performing
an official, administrative or judicial
A: The judge is wrong. It is expressly provided under
function
Sec.3 of RA 3019 that the graft and corrupt practices act
The judge is performing an official and judicial function. enumerated in RA 3019 would always be in addition to any
act or omission punished by existing penal laws. Therefore,
b. The offender acted with manifest
violations to RA 3019 would always be in addition to any act
partiality, evident bad faith or gross
or omission punished by the RPC or any other existing
inexcusable negligence
special penal laws.
The judge acted with manifest partiality despite the evidence

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ARTICLE 212 – CORRUPTION OF PUBLIC Q: A case was submitted against Y for a decision before a
OFFICIALS judge for homicide. From the trial, it is obvious that it will be
a conviction but the accused does not want to spend time in
ELEMENTS:
jail so he went to the judge and offered 5M for his acquittal.
1. The offender makes or offers promises or gifts or The judge accepted and on the day the judgment was
presents to a public officer. promulgated. The judge acquitted Y. What is the crime
committed by the?
2. That the offers or promises are made or the gifts or
the gifts or presents given to a public officer, under a. Judge
circumstances that will make the public officer liable
b. Accused
for direct bribery or indirect bribery.
A:
Q: A case was filed against Y before a police officer, X, is for
qualified rape. The police officer conducted the investigation a. The judge can be held liable for:
which was found that the charge was truthful one. X invited
1. Direct bribery under the first act. The judge
Y for further investigation. Y learned that a case for qualified
actually renders an unjust decision despite the
rape will soon be filed against him before the prosecutor, Y
knowledge that it is unjust because of the money
gave X 100K in exchange of non-filing of the case. X accepted
given to him. Knowingly rendering an unjust
and did not file the case. What crime is committed by
decision is a criminal act under Article 204. SO
a. the police officer? he agrees and actually performs a criminal act
in connection with the performance of his
b. Y?
official function.
A:
2. Since he actually performs the criminal act, he
a. Qualified Bribery. X is a public officer entrusted actually rendered an unjust judgment despite
with law enforcement. He does not want to prosecute a that the fact that it is contrary to law, to
person with a crime punishable by reclusion perpetua evidence, he is also liable for Knowingly
and/or death and the reason for non-filing is because of rendering an unjust judgment.
the bribe given to him.
3. He can also be held liable under Section
When the police officer did not file the case, it 3(e) of RA 3019 – by causing undue injury to
would have amounted to Article 208 any private party including the government or
(dereliction of duty) but you should not file this by giving a party unwarranted benefit,
because this is already the very essence of advantage, or preference in the discharge of his
Article 211-A which is the non-arrest or non- functions through manifest partiality, evident
prosecution of a person who has committed a bad faith, or gross inexcusable negligence.
crime punishable by reclusion perpetua and/or
✰ What if the judge argued that he cannot be
death.
prosecuted in violation of RA 3019 because
b. Corruption of Public Officials. he was already being prosecuted under the
RPC?
Q: The case filed by X against Y before P, a police officer, is
for homicide. P conducted an investigation and he invited Y. The contention was wrong because it is
When he learned that a case was to be filed against him, he expressly provided under RA 3019 that graft
gave P 100K so the case would no longer be filed. P accepted and corrupt practices enumerated shall be in
and did not file the case. What is the crime committed by P? addition to any act or omission committed by
public officers arising from our penal laws.
A: P is liable for direct bribery third act. It is the
duty of the police officer to file the case against Y for the b. The accused is liable of:
crime of homicide, yet P did not file the case or did not
1. Corruption of public official
perform his duty by reason of the bribe given by Y.
2. Violation of Section 4 of RA 3019
P is also liable under Article 208 – dereliction of
duty. He actually refrained from arresting or causing THE ANTI-GRAFT AND CORRUPT PRACTICES
the prosecution of this offender, Y. Therefor P is liable ACT (RA 3019)
for Articles 210 and 208.

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PUBLIC OFFICER – a public officer is any elective and property from then on. Mere physical receipt
appointive officials and employees, permanent or unaccompanied by any other sign, circumstance or
temporary, whether in the classified or unclassified or act to show acceptance is not sufficient to lead the
exemption service receiving compensation, even nominal, court to conclude that the crime has been
from the government. (Sec 2, RA 3019) committed
Javier v. Sandiganbayan ⮚ Refers to a public officer whose official intervention
is required by law in a contract or transaction
Although Javier has been appointed as a representative
of the private sector, in the book publishing board (c) Directly or indirectly requesting or receiving any
attached to the office of the president (NBDB), she is gift, present or other pecuniary or material benefit,
still considered as a public officer; first, the said board for himself or for another, from any person for
functions as a collegial body performing public whom the public officer, in any manner or capacity,
functions; second, according to SC, she was has secured or obtained, or will secure or obtain,
receiving allowance, a salary even though nominal, from any Government permit or license, in consideration
the government. Hence, she considered as a public for the help given or to be given, without prejudice
officer. to Section thirteen of this Act.
(d) Accepting or having any member of his family
accept employment in a private enterprise which
has pending official business with him during the
SECTION 3 – CORRUPT PRACTICES OF PUBLIC pendency thereof or within one year after its
OFFICERS termination.
IMPORTANT PROVISIONS OF SECTION 3: (e) Causing any undue injury to any party including
the government, or giving any private party any
(a) Persuading, inducing or influencing another
unwarranted benefits, advantage or preference in
public officer to perform an act constituting a
the discharge of his official, administrative or
violation of rules and regulations duly promulgated
judicial functions through manifest partiality,
by competent authority or an offense in connection
evident bad faith or gross inexcusable negligence.
with the official duties of the latter, or allowing
himself to be persuaded, induced, or influenced to ELEMENTS:
commit such violation or offense.
1. The said offender was in charge of his official,
Persons liable: administrative or judicial function
2. That he acted with manifest partiality, evident bad
1. Public officer who persuades, induces, or
faith or gross inexcusable negligence
influences another public officer;
3. The said accused caused any undue injury to any
2. Public officer who is persuaded induced or party, including the government, or gave any private
influenced party unwarranted benefits, advantage, or preference
in the discharge of his official functions.
Note: requesting or receiving any gift, present, or
benefit is not required in this provision. Santos v. People
(b) Directly or indirectly requesting or receiving any ⮚ The Supreme Court said that there are two acts
gift, present, share, percentage, or benefit, for punished under Section 3 (e) of RA 3019:
himself or for any other person, in connection with 1. Causing any undue injury; or
any contract or transaction between the 2. Giving any private party any unwarranted
Government and any other part, wherein the public benefit, advantage or preference
officer in his official capacity has to intervene under ⮚ The law uses the conjunctive “or”;
the law. therefore, the fact that the offender causes
1. the lack of demand is immaterial, the law uses any undue injury to any party or the fact
the word OR between requesting and that the offender gave any party
receiving. unwarranted benefit, advantage or
preference, they can be charged distinctly
⮚ There must be clear intention on the part of the or separately from each other.
public officer and consider it as his or her own

93 |
⮚ The Supreme Court also stated that the elements of ⮚ Wrong interpretation of the term “private party”.
Sec 3 (e) of RA 3019 The SC distinguished a private person from a
private party. A private person is one who is not a
UNDUE INJURY – means there must be an actual damage
public officer or employee. Whereas, a private party
caused to the offended party. Absent any actual damage
is one who is a private person or a public officer
caused to the offended party, then section 3 (e) is not
acting in his private capacity. Since the mayor was
violated.
charged with murder, although he is a public
Ambil, Jr. v. Sandiganbayan officer, he is acting in his private capacity therefore
third element is also present.
The mayor was charged with the crime of murder and
he was placed in the provincial jail. The governor Contention of the jail warden:
transferred the mayor to his house. The IBP learned
He is not under the jurisdiction of the Sandiganbayan
about this and conducted an investigation. Having
because he is only of the Salary Grade 22 and as such,
found probable cause, the IBP brought the matter to the
the case before him must be filed before the RTC.
NBI. The NBI conducted further investigation and it
also found probable cause. It filed a case before the Supreme Court:
Office of the Ombudsman. The ombudsman, after
The provincial jail warden was being charged as a co-
investigating the matter found probable cause so it filed
principal of the governor. The governor is way above
a case before the Sandiganbayan. A violation of Section
salary Grade 27. It suffices that any one of them is of
3(e) of RA 3019 was filed before the Sandiganbayan
Salary Grade 27 and is within the jurisdiction of the
against the Provincial Governor and the jail warden as
Sandiganbayan. Since they were both charged as co-
co-principals.
principals, both of them are under the jurisdiction of the
Contentions of the Governor: Sandiganbayan.
1. He is the provincial jailer based on LGC and (f) Neglecting or refusing, after due demand or
therefore has the power to transfer one prisoner request, without sufficient justification, to act
from one place of detention to another. There was within a reasonable time on any matter pending
no manifest partiality. before him for the purpose of obtaining, directly or
indirectly, from any person interested in the matter
2. There was a threat on the life of the mayor therefore
some pecuniary or material benefit or advantage, or
he had no other recourse but to transfer him to his
for the purpose of favoring his own interest or
house. There was no bad faith.
giving undue advantage in favor of or
3. Based on the information charged, it was alleged discriminating against any other interested party.
that he gave a private party unwarranted benefit.
(g) Entering, on behalf of the government, into any
According to him, the mayor is a public officer,
contract or transaction manifestly and grossly
therefore, the mayor is not within the meaning of
disadvantageous to the same, whether or not the
private party.
public officer profited or will profit thereby
Supreme Court:
⮚ The public officer entered into any contract or
⮚ There is manifest partiality. In his house, the transaction on behalf of the government. The said
governor can roam around, can eat good food, and contract is manifestly and grossly disadvantageous
can do anything that he wants so, evidently, there to the government.
is manifest partiality.
In Nava v. Pallattao, the violation was Section 3 (g). The
⮚ The mayor acted with evident bad faith. SC said DECS officials bought laboratory science materials and after
that under the LGC, there is no such thing as COA audited, it was discovered that there was an
provincial jailer. The governor acted with evident overpricing. The same is true in Caunan v. People where
bad faith because there was no court order that Joey Marquez and company bought walis-tingting, and
would permit the transfer of the mayor from the according to the COA auditors, there was also overpricing of
provincial jail to his house. A prisoner can only be these walis-tingting. But in the case of Nava, there was
transferred from one detention prisoner to another conviction but in the case of Caunan, there was an
if there is a court order. Since there is none, there acquittal.
was evident bad faith.
✰ Where lies the difference?

94 |
⮚ In the case of Nava, the COA officials proved votes against the same or does not participate in the
the overpricing because they bought the very action of the board, committee, panel or group.
same laboratory materials from the same
⮚ Interest for personal gain shall be presumed
supplier where the DECS officials bought and
against those public officers responsible for the
by reason thereof, it was discovered that there
approval of manifestly unlawful, inequitable, or
was indeed an overpricing.
irregular transaction or acts by the board, panel or
⮚ However, in the case of Caunan, Joey
group to which they belong.
Marquez bought from a different supplier than
where the COA officials bought. The COA (j) Knowingly approving or granting any license,
officials bought from a Las Pinas supplier permit, privilege or benefit in favor of any person
which they compared with the price of walis- not qualified for or not legally entitled to such
tingting bought by Joey Marquez. Not only did license, permit, privilege or advantage, or of a mere
they buy the said walis-tingting from a representative or dummy of one who is not so
different supplier, the walis-tingting bought by qualified or entitled.
COA officials was of different specifications
(k) Divulging valuable information of a confidential
from that of the walis-tingting bought by Joey
character, acquired by his office or by him on
Marquez and company. Hence, the Supreme
account of his official position to unauthorized
Court said that prosecution was not able to
persons, or releasing such information in advance
prove beyond reasonable doubt that there was
of its authorized release date.
overpricing. Because the walis-tingting bought
by Joey Marquez was very much different from ⮚ Note: if damage was caused, Article 229 under the RPC
the walis-tingting bought by the COA officials. is committed.
They were not able to prove beyond reasonable
SECTION 4 – PROHIBITION ON PRIVATE
doubt that there was overpricing because of
INDIVIDUALS
the difference in specifications.
⮚ Under Section 4, it is unlawful for any private
⮚ In both cases, there was NO PUBLIC BIDDING. individual who has a close personal relation to any
public officer to request, ask or receive present
✰ Will the mere lack of public bidding bring about a from any person in any case from which the said
violation of Section 3 (g) of RA 3019? public officer has to control.
⮚ The Supreme Court said that mere lack of ⮚ Close personal relation does not only include
public bidding may mean that the government family members. It also includes those who have
was not able to get the best price for the thing social and fraternal relations; therefore even a
purchased. However, it does not bring private individual who is not in conspiracy of a
about a violation of Section 3 (g) because public officer can be held liable under RA 3019.
what Section 3 (g) requires is the transaction ⮚ Not only public officers but also private individuals
must be manifestly and grossly can be held liable under RA 3019.
disadvantageous to the government and mere
SECTION 9 – PENALTIES FOR VIOLATIONS
lack of public bidding will not show such gross
and manifest disadvantage. ⮚ Under Section 9, both private individuals and
(h) Directly or indirectly having financing or public officers have just the same penalty. It is six
pecuniary interest in any business, contract or years and one month to fifteen years plus forfeiture
transaction in connection with which he intervenes of the ill-gotten wealth.
or takes part in his official capacity, or in which he SECTION 7 – STATEMENT OF ASSETS AND
is prohibited by the Constitution or by any law from LIABILITIES & RA 6713
having any interest.
⮚ Public officers can file their SALN within 30 days
(i) Directly or indirectly becoming interested, for from assumption into office. And then it must be
personal gain, or having a material interest in any filed on or before the 30th day of April of the next
transaction or act requiring the approval of a board, years and within 30 days after separation from the
panel or group of which he is a member, and which service.
exercises discretion in such approval, even if he
⮚ In RA 3019, it is stated “on or before 15th of April”
but there is another law which provides also for the

95 |
filing of SALN and that is RA6713 which is the code suspension is constitutional. Preventive
of ethical standards for public officers. suspension is not a penalty. It is a mere preventive
⮚ Under RA 6713, and this is what is being followed, measure, its purpose is to prevent the public officer
it must be on or before the 30th day of April. from hampering the prosecution of his case from
⮚ So you file first within 30 days upon assumption to tampering with evidence and influencing witnesses.
office and then the years thereafter on or before the Since, it is not a penalty imposed after trial of the merits,
30th day of April and then if you got separated from placing him under preventive suspension is within the
office, within 30 days from separation from office. constitution.
⮚ If the public officer fails to file his SALN within the
period required by law, he is liable under RA 3019. The second argument however has merit. Here,
But if he filed his SALN but the entries therein were the SB, immediately place X under preventive
falsities, he is liable for Perjury. suspension with no finding yet of any probable cause.
The finding of probable cause by the Office of
SECTION 8 – PRIMA FACIE EVIDENCE OF AND Ombudsman will not suffice. There must also be a
DISMISSAL DUE TO UNEXPLAINED WEALTH finding of probable cause by the SB. The SB must set the
case for pre-suspension period in order to determine if
⮚ There arises a prima facie presumption of graft and
there is probable cause. Is the information filed by the
corrupt practices if a public officer has been found
Ombudsman sufficient in form and substance as to
to have in his possession money or property,
bring about a conviction? If yes, the SB now can place X
whether in his name or in that name of another
under preventive suspension. So placing a public officer
person, which is manifestly out of proportion from
under preventive suspension is not automatic but it is
his lawful income. There arises a prima facie
mandatory.
presumption of graft and corrupt practices.
For how long should the suspension be?
SECTION 10 – COMPETENT COURT & RA 8429 ⮚ The suspension must not exceed the
maximum of ninety days, in consonance with
⮚ You file a case of violation of Article 3019 before the Section 52 of the Administrative Code.
Sandiganbayan. The Sandiganbayan has
jurisdiction unless otherwise provided by law. SECTION 14 – EXCEPTION
⮚ There is a law, RA 8429 which provides for the Pres. Duterete said in one of his speeches, police officers may
jurisdiction of Sandiganbayan. Under this law, if a receive gifts. In order to justify the statement of the
public officer is of salary grade 27 and above, it President, Sec. Panelo said, the President was referring to
must be before the Sandiganbayan. If the public Sec. 14 of RA 3019.
officer is below salary grade 27, it must be before
the RTC. Under Sec. 14 of RA 3019, unsolicited gifts or present of
SECTION 11 – PRESCRIPTION OF OFFENSES small or significant value offered or given as a mere token of
gratitude or friendship is outside of RA 3019. So, if the gift
All offenses punishable under this Act shall prescribe in given is unsolicited, insignificant in value, they are allowed
twenty years (RA 10910). Same as plunder. under Sec. 14 of RA 3019 without the public officer being
SECTION 13 – SUSPENSION AND LOSS OF held liable under the said law.
BENEFITS
Q: X is a public officer and he was charged before the Q: What if a public officer saw an old man waiting line. So
Sandiganbayan by the Office of Ombudsman for the crime of the old man received a notice, the notice said that his license
Violation of Sec.3(e) of RA 3019. Right after the filing of the is ready, it has already been approved. So he was waiting in
case, out rightly, the SB placed X under preventive line for the release of his license, it was already approved.
suspension. His counsel filed a Motion for Reconsideration. The head of office saw the old man. 85 years old, under the
First, placing X under preventive suspension is heat of the sun and with his frail body. So the head of office
unconstitutional because preventive suspension is took the man and the head of office asked the man to his
unconstitutional, Section 13 is unconstitutional. Second, the office. The head of office asked the secretary, “Is the license
said act is unlawful because there was no finding yet of of this man approved?” The secretary said yes. The head of
probable cause. Are the arguments of the counsel correct? office said, “get it.” The secretary took it and gave to the head
of office. The head of office, upon seeing that it is approved,
A: The first argument has no merit because and the man was only waiting for its release, gave it to the
placing a public officer under preventive man; therefore the man need not wait in the long line. The

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man was so thankful that the following day, the man went blanket costs. They will be buying 1000 blankets. Supply
back to the office with two big bilaos of bibingka to the said officer canvassed and found that a blanket cost 500. He
head of office to say thank you. The said head of office connived and conspired with the supplier of the blankets and
received two big bilaos of bibingka. Is the said head of office told him to price apiece of 600 pesos. So it was what was
liable under RA 3019? delivered to Mindanao. Therefore, the government issued a
check in the amount of 600K wherein it should only be
A: No. It falls under the exception. Under Section
500K. What crime has been committed by the supply
14, unsolicited gifts or presents of small or insignificant
officer?
value offered or given as a mere ordinary token of
friendship or gratitude, according to local customs or A: The supply officer is liable for Article 213 first
usage is excepted from the provisions of RA 3019; paragraph (Fraud Against the Public Treasury)
therefore the said public officer will not be held because there is no allocation of the budget yet.
criminally liable. Therefore, when the treasury paid for more than what
has been paid, the treasury is defrauded. Hence, the
CHAPTER THREE – FRAUDS AND ILLEGAL
crim committed is Article 213 (1).
EXACTIONS AND TRANSACTIONS
Q: What if the GAA had already been approved by the
ARTICLE 213 – FRAUDS AGAINST THE PUBLIC
Congress and signed by the President, there was already a
TREASURY AND SIMILAR OFFENSES
budget for the entire calendar year. In this budget, the
ACTS PUNISHED: military was given a portion for the blankets. So there was
1000 blankets with 500K budget allocated. Upon the
I. Fraud against public treasury (par.1)
enactment of the same, the head of the military asked the
II. Illegal exactions (par. 2) supply officer to canvass. Upon canvassing, he found that
there were blankets that cost 500 pesos each. But the supply
ELEMENTS OF FRAUD AGAINST PUBLIC
officer connived with the supplier of the blankets and told
TREASURY (ART. 213, PAR. 1):
him that instead of delivering blankets with premium quality
1. That the offender is a public officer costing 500 pesos, he should deliver only inferior quality
blankets costing 300 pesos each, anyway, the people in
2. that he should have taken advantage of his office,
Mindanao would not know. So the poor quality blankets
that is he intervened in the transaction of his
were delivered. What crime is committed?
official capacity
A: The crime committed is not fraud against public
3. That he entered into an agreement with any
treasury but Other Frauds under Article 214. This is
interested party or speculator or made use of any
because there is an allocation in the GAA and as such,
other scheme with regard to:
the treasury can no longer be defrauded because such
(1) furnishing supplies amount has long been allocated or earmarked for the
purchase of the blankets. The fraud is in the
(2) the making of contracts
implementation of the budget therefore it amounted to
(3) the adjustment or settlement of accounts Estafa. Other frauds is committed by any public officer,
relating to public property or funds who, by taking advantage of his official position would
commit any of the acts of Estafa under Articles 315 –
4. That the accused had intent to defraud the
318.
Government
ELEMENTS OF ILLEGAL EXACTION (ART. 213,
⮚ So here, the public officer took advantage of his official PAR. 2)
position in entering into contract which involves the
furnishing of supplies, or which involves public funds or 1. That the offender is a public officer entrusted with the
property and the intention is to DEFRAUD THE collection of taxes, licenses, fees and other imposts.
GOVERNMENT. It is not necessary that the 2. He is guilty of any of the following acts or omissions:
Government, the treasury be actually be defrauded, it
suffices that entering in the said contract, the intention (1) Demanding, directly or indirectly, the
of the said offender, the public officer, is to defraud the payment of sums different from or larger than
Government. those authorized by law; or
Q: The military in Mindanao needs blankets. The head of (2) Failing voluntarily to issue a receipt, as
military asked the supply officer in Manila how much a provided by law, for any sum of money
collected by him officially; or

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(3) Collecting or receiving, directly or indirectly, about the rules on collection. It has nothing to do with
by way of payment or otherwise, things or the appropriation or misappropriation of funds or
objects of a nature different from that provided property. Only a violation of the rules on collection.
by law.
2nd Act - Failing voluntarily to issue a receipt, as
Offender is a collecting public officer, a public officer provided by law, for any sum of money collected by
who has been entrusted with duty to collect taxes, licenses, him officially;
fees or other imposts. Only this kind of public officer can
Q: So what if it was January 2, all kinds of payment are being
commit this crime because illegal exaction involves violation
made at the start of the year. So the collecting officer in the
of rules on collection.
treasurer’s office rans out of official receipt (O.R.). And so he
⮚ This refers solely on the violation of the rules on got a half sheet of typewriting paper and he note there about
collection. It does not involve malversation or the said payment and a provisional receipt and he gave it to
misappropriation of the public funds he collected. If the same person who made the payment. Is the said
aside from violation of rules on collection, he also collecting officer liable of illegal exaction?
misappropriate, malversed the sum he collected, he
A: He is not. Because he did not voluntarily fail to issue
becomes liable under Article 217 – Malversation of
the said O.R. He ran out of the said O.R., it was not
Public Funds or Property
voluntary on his part. It was an emergency situation. It
1st Act - Demanding, directly or indirectly, the is good that she even gave a provisional receipt as a
payment of sums different from or larger than those proof of payment. In this case, he cannot be held liable
authorized by law; or for illegal exaction.
Q: There was this cashier in the city treasurer’s office. Here 3rd Act - Collecting or receiving, directly or
comes X, X said that he is going to get a cedula (residence indirectly, by way of payment or otherwise, things
certificate) and then X said, “How much am I going to pay?” or objects of a nature different from that provided
and then, the cashier or the collecting officer said, “you have by law.
to pay Php200” but it is actually Php20. X said, “hmp, ang
⮚ Here, under the third act, it does not refer to the
mahal pala, ayoko na.” and so he left. Is the said collecting
amount of payment. It refers to the kind or nature of
officer liable of any crime?
payment. So, when the law says that it should be paid
A: YES, he is liable. For merely demanding an in cash, only cash may be received by the said
amount larger than that authorized by law, he is already collecting officer.
liable for ILLEGAL EXACTION under Article 213, Par.
Q: So the collecting officer is known as a sabungero. So here
2.
comes one of the persons who was making payment. He has
Q: He is already liable, he merely demanded, but what if in no money, but said, he has a magandang tandang. And so,
the same problem, X said he was going to get a cedula. The that was the payment received. What crime is committed?
collecting officer saw him and he appears to be poor man and
A: He commits a violation of illegal exaction.
so X asked the collecting officer, “How much am I going to
pay?” and the collecting officer took pity of X and said, “Only Q: What if the person who demanded an amount or different
Php 10”. So, the poor man said, “Oh, I have more money, I’ll from or larger than that which is provided for by law is an
get two”. Is the collecting officer liable of any crime? officer, a collecting officer from the Bureau of Internal
Revenue, or a collecting officer form the Bureau of Customs.
A: YES, he is liable because he demanded an amount
Is he liable under Article 213?
different from that authorized by law. Note that what
the law requires is the demanding of an amount, directly A: He is not liable for illegal exaction under Art.
or indirectly, different from or larger than those 213. He is liable under the Tax Code or under the Tariffs
authorized by law. Therefore, even if it is lower, so long and Customs Code. Under Art. 213, it is expressly
as it is different from that provided by law, and so long provided that if the collecting officer is a collecting
as it is demanded by the said collecting officer, then it is officer coming from the Bureau of Internal Revenue or
considered as illegal exaction. Bureau of Customs is not liable under this Article. The
reason here is that, this collecting officer from the BIR
It is not necessary for the said collecting officer to have
and the BOC, have the right to ask for penalties,
misappropriated the funds, the moment that he
surcharges, and compromise. Therefore, they can
misappropriates the funds, in addition to illegal
always demand and amount different from or that
exaction, he may also be held liable for
which is larger than that authorized by law. If they
MALVERSATION, because Illegal Exaction is only

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exceeded that authority, then they are liable under the to account later to the State, and 4) that he
Tariffs and Customs Code or under the Tax Code, but appropriated, took, misappropriated, consented or
NOT UNDER THE RPC. through his abandonment or negligence, he permitted
others to misappropriate the same. All the elements are
Q: X went to the City Treasurer’s Office and X paid for a
present. He is a public officer charged with the
cedula. He asked how much and the treasurer said it was 50
collection, by reason of which he received these public
pesos. The truth is, a cedula, or a community tax certificate,
funds.
would cost only 20 pesos. But since X was asked 50 pesos, he
paid 50 pesos as demanded by the treasurer. Thereafter, the
Is the 30 pesos a private fund? The moment he co-
treasurer issued an Official Receipt saying that the amount
mingled the entire 50 pesos that he collected from X
paid was 50 pesos. After receiving the O.R., X left. The City
with the funds in the public vault, the said 30 pesos
Treasurer now opened the public vault and placed therein
excess becomes part of public funds. So when he opened
the entire 50 pesos that he collected and closed it.
the vault in that afternoon and took 30 pesos, he was in
Thereafter, he had this duplicate original copy of the O.R., he
effect taking public funds. Hence, he is liable for
erased the number 50, and replaced it with 20. That
malversation of public funds and property.
afternoon, when he was about to leave the office, he
remembered that he has big bills in his wallet, all 1,000-peso
Fourth, he is also liable for Other Frauds. He is a
bills which the jeepney driver would not accept, and so since
public officer, he took advantage of his public position
he needed a smaller amount, opened the public vault, and
in swindling X of 30 pesos. The said act amounted to
took the 30 pesos excess collection. Thereafter, he closed the
estafa—other deceits under Art. 380. But since he took
public vault and went out. On his way home, he used the 30
advantage of his public position, the crime is Other
pesos to pay the jeepney fare. What crimes have been
Frauds.
committed by the said public officer?
In the cases of illegal exactions, falsification of public
A: First, he is liable for Illegal Exactions. He
document and malversation of public funds and
demanded and even collected an amount different from,
property, the offended party was the State. But in the
in this case larger than, that authorized by law. 20 pesos
case of Other Frauds, the offended party was X. 30 pesos
is the amount authorized by law and yet he demanded
was swindled from him by this public officer.
and collected 50 pesos. Therefore, he is liable for illegal
.
exactions.
ARTICLE 214 – OTHER FRAUDS
Second, he is liable for Falsification of Public
ELEMENTS:
Document. In the said duplicate copy of the official
receipt, he altered the amount of 50 pesos. Instead, he 1. Offender is a public officer
replaced it with the correct amount which is only 20
2. He takes advantage of his official position
pesos. Therefore, he is liable of falsification of public
document— in this case falsification of commercial 3. He commits any of the frauds or deceits enumerated
document because the official receipt is a commercial in Articles 315-318
document— because all the elements are present. He is
If any of the public officer commits any of the frauds or
a public officer, he took advantage of his public position
deceits constituting ESTAFA or SWINDLING, under Art.
(he is the one in custody of the document that he
315-318, and he does so by taking advantage of his official
falsified), and the act of falsification that he committed
position, his criminal liability is Other Frauds under Art.
was f. By making any alteration or intercalation in a
214.
genuine document which changes its meaning, since he
made an alteration from 50 pesos to 20 pesos. Therefore Not estafa, Not swindling. the reason is that in case of a
he is liable also for falsification of public document public officer, there is additional penalty. If you look at
under Art. 171. Article 214, the law says that the penalty is the same penalty
as the first offense under Art. 315-318. But additional to that,
Third, he is liable for Malversation of Public Funds temporary disqualification to perpetual disqualification for
and Property under Art. 217. The elements for having taken advantage of his official position. Therefore, if
malversation of public funds and property are all it is a public officer who commits estafa or swindling, the
present: 1) he is a public officer, 2) he has funds and crime is under Art. 214 and there is an additional penalty.
property in his possession by reason of the duties of his
ARTICLE 215 – PROHIBITED TRANSACTIONS
office, 3) these are public funds and property that he has

99 |
ELEMENTS: III. Consenting, through abandonment or negligence,

permitting any other person to take such public funds
1. Offender is an appointive public officer
or property
2. He becomes interested, directly or indirectly in any
IV. Being otherwise guilty of the misappropriation or
transaction of exchange or speculation
malversation of such funds or property
3. Transaction takes place within the territory subject to
⮚ Malversation of Public Funds and Property can be
his jurisdiction
committed either through a positive act, that is, that the
4. He becomes interested in the transaction during his said public officer is the one who misappropriates, takes
incumbency or appropriates the public funds and property, OR,
through a passive act, that is, through his abandonment
ARTICLE 216 – POSSESSION OF PROHIBITED
or negligence, he permitted others to misappropriate
INTEREST BY A PUBLIC OFFICER
the same.
PERSONS LIABLE: ⮚ Malversation can be committed either through a
1. Public Officer who, directly or indirectly, became positive act, which is through deliberate intent or
interested in any contract or business in which it was his through dolo. He is the one who appropriates or
official duty to intervene. misappropriates, who took the the said public funds or
property
2. Experts, arbitrators, and private accountants who, in ⮚ Passive Act which is through his abandonment or
like manner, took part in any contract or transaction negligence, or cupla. He allowed others to appropriate
connected with the estate or property in the appraisal, or misappropriate the said public funds or property
distribution or adjudication of which they had acted
PRIMA FACIE PRESUMPTION OF
3. Guardians and executors with respect to the property MALVERSATION:
belonging to their wards or the estate
Under Article 217, there arises prima facie presumption of
CHAPTER FOUR – MALVERSATION OF PUBLIC malversation of public funds or property when demand is
FUNDS OR PROPERTY made by a duly authorized officer to an accountable public
ARTICLE 217 – MALVERSATION OF PUBLIC officer to account for public funds or property, and the same
FUNDS OR PROPERTY (PRESUMPTION OF is not forthcoming
MALVERSATION) So the COA auditor, appeared and conducted an audit he
ELEMENTS: demanded for the said amount, the said accountable public
officer cannot reduce the said amount. There arises the
1. Offender is a public officer or employee prima facie presumption that he has malversed the said
2. He has the custody or control of funds or property by public funds or property. Although that is what is written
reason of the duties of his office under Article 217, last paragraph. The Supreme Court in the
number of cases said:
3. Those funds or property were public funds or
property for which he was accountable “Mere shortage in audit will not suffice. For the Prima
facie presumption to arise the following requisites
4. He appropriated, took, misappropriated or must be present: - It is necessary that there must be
consented, or through abandonment or negligence, complete, thorough and reliable audit.
permitted another person to take them
- In the said complete, thorough and reliable audit,
The offender is an accountable public officer. An accountable the following were discovered:
of public officer is an officer in the course of the performance a. The public officer indeed receive the public
of his duties, receives funds or property from the funds or property. That is, he is an
government which he has the obligation to account later. So accountable public officer
he has in his custody, public funds or public property and he b. The said public funds and property was
has the obligation to account these to the Government. missing, or there was a shortage, or he cannot
ACTS PUNISHED: produce it, and
c. The said public officer cannot give a justifiable
I. Appropriating public funds or property reason, a legal excuse for the said shortage or
II. Taking or misappropriating the same missing of public funds or property.”

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If all of these are present, the Supreme Court says that there deposited by public authorities and the same has been
arises the prima facie presumption that there is malversation misappropriated, the crime is Malversation.
of public funds or property. Therefore, there may NOT be
direct evidence to convict one for malversation of public
Q: There were many people paying. There were 5 cashiers
funds or property. Obviously, there cannot be any witness,
assigned in the area — Cashiers A, B, C, D and E. At about
because when you say direct evidence, there is a witness. Of
3:00, Cashier A felt the need to answer the call of nature and
course, he would not let anyone see him malversing the
so he told Cashier B to man his place. Cashier A went to the
funds. It suffices in the audit, these three things were
restroom. Cashier B saw that A left the key of his cash vault
discovered. If these three are discovered, then there arises
on top of the table. B looked around and saw that everyone
the prima facie presumption that there is a so-called
was busy and that no one would notice him, so he went to
MALVERSATION OF PUBLIC FUNDS OR PROPERTY
the seat of A, opened the vault, took 30,000 pesos from the
X was arrested by the police. He was caught in possession of collection of A, closed the vault and placed the said key on
a loose firearm. The firearm was confiscated. He could not top of the table. A arrived from the restroom and continued
produce any license, permit to carry, or registration. It was doing his collections. But at about 4:30, representatives
seized/confiscated. X was brought to the PNP Station. The from the Provincial Auditor’s Office arrived and conducted a
said gun was given to the PNP Custodian for safekeeping. surprise audit. Based on the said audit, 30,000 pesos was
Meanwhile, X was charged with Illegal Possession of Loose short from the collections of A for that day. A was shocked.
Firearms. During the hearing, the Fiscal moved that a He could not give a reason because he didn’t know why
subpoena be issued to the PNP Custodian to bring to Court 30,000 pesos was short. Since he could not give any
the gun that has been entrusted to him (the gun taken from justifiable reason and the law presumes he is the one who
X and has been entrusted to the PNP Custodian). malversed it, he was charged with Malversation of Public
Funds and Property under Art. 217.
The PNP Custodian received the subpoena but he failed to
During the hearing of the case, however, A moved to the
appear. Because of his non-appearance, the Fiscal again
Court that the footage from the CCTV camera in the office be
moved for another subpoena. Again, granted. Again, the said
shown. When it was shown, it was revealed that B was the
PNP custodian received the subpoena, but despite receipt,
one who took the said 20,000 pesos from his cash vault. Is A
he did not appear in Court. The Judge was mad. The Judge
liable as charged?
issued a Show-Cause Order. Hence, he has no recourse but
to explain. He said he sold the gun. Because of this, he was A: YES. Cashier A is liable as charged for
charged with Malversation. He said he is not liable of malversation. Although the crime charged against
Malversation because the gun is private property. Therefore, Cashier A is malversation through dolo or deliberate
it should be only Simple Theft. What crime is committed by intent—that he is the one who appropriated, took and
the PNP Custodian? misappropriated the said 20,000 pesos from his
collection, he could still be convicted of malversation
A: The PNP Custodian is liable of Malversation through culpa or negligence because by reason of his
of public funds and property. He is a public officer. negligence/ abandonment, he allowed cashier B to
He has this gun in his possession. This gun is public misappropriate the said public funds and property in
property that he has to account later to the State. But he the amount of 20,000 pesos. So even if he is charged
himself appropriated it by selling it. This gun, although with Malversation through dolo or deliberate intent, the
it belongs to X, this gun is considered already as public Court can correctly convict him of Malversation through
property because the moment it has been seized and culpa or negligence because as found by the Supreme
attached by the police officers in the problem, it has Court in the cases of Torres vs. People and Campos vs.
already become in custody of the law (in custodia legis). People, the dolo or the culpa (the deliberate intent or the
The moment it is in custody of the law, any act of negligence) are merely modalities in the commission of
misappropriating, appropriating, or taking it would give the crime. Whether the crime is Malversation through
rise to Malversation of public funds and property. dolo or Malversation through culpa, the same penalty is
Therefore, the said PNP Custodian is liable of imposed by the Court, the same penalty is prescribed by
Malversation of public funds and property, and not law, and the same crime is committed.
merely Simple Theft.
Second, Malversation through culpa or negligence is
necessarily included in Malversation through dolo or
Malversation would also lie in case of private property.
deliberate intent. Therefore, it cannot be said that when
If the said private property has been seized, attached, or
a judge convicts an accused of Malversation through
culpa in an Information that alleges Malversation

101 |
through dolo, the said accused is deprived to be immediate medical intervention, he survived. Is he liable of
informed of the nature of the cause of accusation against any crime?
him. That will not happen because again the dolo or the
A: Yes, he is liable of Malversation of public
culpa are merely modalities in the commission of the
funds or property under Article 217 through
crime.
Negligence. There was inexcusable negligence on his
Q: What if, in the same problem, after the COA auditor part said the Supreme Court, because all by himself,
found out that Php 2000 was missing, A was charged with carried the millions worth of dangerous drugs in the
Malversation of public funds and property through dolo. So, PDEA van, considering the value of the said dangerous
in the information, it was stated that he is the one who drugs, he should have asked for back up. Yes, he
misappropriates, appropriates or has taken the said public survived, but he was charged with Malversation of
funds, and so he was charged with Malversation through public funds or property through CULPA.
dolo, through deliberate intent. That was the case filed
Q: What if, there is a public officer whose office is in pasay.
against him because they did not know that it was B who took
He is going to have a meeting in Caloocan. And so he went to
the money. So, the presumption is that, he is the one who
Caloocan in one afternoon and attended the said meeting.
took the money, who appropriated it. During the trial of the
He had to go to pasay in order to make a report, However,
merits, during the presentation of the defense evidence,
the traffic was heavy, so instead of using his car on the way
when it was already A’s term to testify, it was divulged or
back, he rode the LRT. Upon reaching the office, he realized
disclosed to the court that it was in fact another cashier, B
that his bag was opened, and the cellphone which was issued
who misappropriated the said funds through the negligence
to him by the Government was already gone. By reason
of A. And by reason of this evidence presented in court, the
thereof, he was charged with Malversation under Article 217
said judge, convicted A of Malversation through culpa, in an
because through his negligence, the cellphone which was
information of malversation through dolo. Is the judge
issued to him by the Government and for which he is
correct? can he convict A?
accountable to the Government was now missing. It was
A: Yes, the judge is correct. The reason is that, taken or stolen by somebody. Is he liable? He was convicted
according to the Supreme Court, whether Malversation by the Sandiganbayan but when it came to the Supreme
is committed through deliberate intent or culpa, DOLO Court, the Supreme Court acquitted him.
and CULPA are merely modalities of committing the
A: According to the Supreme Court, there was no
crime. Nevertheless, it is still malversation, and if you
negligence on the part of the said public officer. He
look at Article 217, whether malversation is committed
cannot be faulted for having taken the LRT because of
through deliberate intent or through negligence, they
the said heavy traffic. It cannot be said that there was
just have one and the same penalties. Further, the
negligence on his part in placing the cellphone inside his
Supreme Court said, Malversation through negligence
bag, because, where else would you place a cellphone
or culpa is NECESSARILY INCLUDED in Malversation
but inside the bag for safekeeping. It would have been
through deliberate intent or dolo. Hence, even if the
different while on board, he was using the said
information is Malversation through dolo, one can be
cellphone. Hence, the Supreme Court said, there was no
convicted of Malversation through Culpa or Negligence.
negligence and therefore, although convicted by the
Q: What if, there was this raid in a warehouse, in the course Sandiganbayan, he was acquitted by the Supreme Court.
of the said raid, dangerous drugs worth millions of pesos
ARTICLE 218 – FAILURE OF ACCOUNTABLE
were confiscated and they were placed in the PDEA
OFFICER TO RENDER ACCOUNTS
warehouse. The persons therein were charged with illegal
possession of dangerous drugs. In the course of the hearing ELEMENTS:
in this possession of dangerous drugs, the court sent a
1. Offender is a public officer, whether in the service or
subpoena to the PDEA custodian, to bring to the Court the
separated therefrom
said dangerous drugs which were confiscated. And so, on the
designated day, the said PDEA agent boarded all the 2. He must be an accountable officer for public funds or
dangerous drugs confiscated in a PDEA van and off he went property
to the Court. However, before the PDEA agent could reach
3. He is required by law or regulation to render accounts
the court, here comes two motorcycles who went in and fired
to the Commission on Audit, or to a provincial
at him, and he fell on his seat, lifeless. And then, a big vehicle
Auditor
arrived at the back of the said PDEA van and took all the said
dangerous drugs. Now the said PDEA agent was brought into 4. He fails to do so for a period of two months after such
the hospital and despite the fatal wound, because of the accounts should be rendered

102 |
ARTICLE 219 – FAILURE OF RESPONSIBLE is no law, there is an illegal transfer of funds, therefore,
PUBLIC OFFICER TO RENDER ACCOUNTS technical Malversation will resolve.
BEFORE LEAVING THE COUNTRY
ARTICLE 217 ARTICLE 220
ELEMENTS:
The public officer The public officer did not
1. Offender is a public officer misappropriates the fund for misappropriate the funds
his personal use. for his personal use, he used
2. He must be an accountable officer for public funds or
it for another public purpose
property
other than that which has
3. He must have unlawfully left (or be on the point of been appropriated by law or
leaving) the Philippines without securing from the ordinance that is why it is
Commission on Audit a certificate showing that his TECHNICAL
accounts have been finally settled MALVERSATION – the
offense is on the technicality
ARTICLE 220 – ILLEGAL USE OF PUBLIC FUNDS
of the use of funds.
OR PROPERTY (Technical Malversation)
ELEMENTS:
The public officer has in his The public officer has in his
1. Offender is a public officer
possession public funds or possession public funds or
2. there is a public fund or property under his property for safekeeping. It property is only under his
administration is under his custody and administration. Not for
control and therefore it is for safekeeping, but only for the
3. Such public fund or property has been appropriated
his safekeeping and he has purpose of administrating it
by law or ordinance
the obligation to account it that is, for applying it for the
4. He applies the same to a public use other than that for later on to the Government. purpose which it has been
which such fund or property has been appropriated appropriated by law or
by law or ordinance. ordinance.
Q: What if a public officer has under his administration
public funds which is for a certain project. So let us say that
X is the city administrator. Under his administration, there ⮚ If the information alleged is under Article 217 –
was Php500,000, the said Php 500,000 was for the Malversation, if what was proven during trial is that the
construction of a bridge between one barangay to another accused violated Article 220 – technical malversation,
barangay. Then suddenly there was a typhoon, a big typhoon the judge could not convict accused under Article 220
and many of the constituents were rendered homeless. And because it is not necessarily included in Article 217. The
so, they had to stay in the basketball court, they need food, accused would be deprived to be informed of the
clothing, water and other basic needs. And so, the city accusation against him. He should be acquitted.
administrator made use of the Php 500,000 under his ⮚ Good faith is not a defense because although Technical
administration to buy these basic needs of his constituents. Malversation is punishable under the RPC, it is malum
Is the said public officer, the city administrator liable of any prohibitum therefore criminal intent is immaterial. The
crime? very act punished is the transferring of funds which has
been appropriated by law to another public use
A: Yes, he is liable for technical Malversation notwithstanding that it is more urgent or more
under Article 220. beneficial to the people. The fact is the funds were
EXAMPLE: diverted or transferred from its supposed purpose to
another.
GMA and other head of Philhealth before were charged by
Frank Chavez because of Technical Malversation because of ARTICLE 221 – FAILURE TO MAKE DELIVERY OF
transfer of COA funds, which was used for Philhealth PUBLIC FUNDS OR PROPERTY
purposes during the elections. And so, because of that, ELEMENTS:
according to Frank Chavez, they are liable for Malversation.
They were charged with Technical Malversation. But their 1. That the public officer has government funds in his
contention was there was a law that allowed it. If there was a possession
law that allowed it, then, there was no violation. But, if there 2. That he is under obligation to make payments from
such funds

103 |
3. That he fails to make payment maliciously 1. Through misappropriation, conversion, misuse, or

malversation of public funds or raids on the public
ACTS PUNISHED:
treasury;
I. Failing to make payment by a public officer who is under 2. By receiving, directly or indirectly, any
obligation to make such payment from Government commission, gift, share, percentage, kickbacks or
funds in his possession any/or entity in connection with any government
II. Refusing to make delivery by a public officer who has contract or project or by reason of the office or
been ordered by competent authority to deliver any position of the public officer concerned;
property in his custody or under his administration 3. By the illegal or fraudulent conveyance or
disposition of assets belonging to the National
ARTICLE 222 – OFFICERS INCLUDED IN
government or any of its subdivisions, agencies or
PRECEDING PROVISIONS
instrumentalities or government-owned or
Private Individual who may be liable under Art. 217- controlled corporations and their subsidiaries;
221: 4. By obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other
1. Private Individual who in any capacity whatsoever,
form of interest or participation including the
have charge of national, provincial or municipal
promise of future employment in any business
funds, revenue or property
enterprise or undertaking;
2. Administrator, depository of funds or property
5. By establishing agricultural, industrial or
attached, seized or deposited by public authority even
commercial monopolies or other combinations
if such property belongs to a private individual
and/or implementation of decrees and orders
3. Those who acted in conspiracy in malversation
intended to benefit particular persons or special
4. Accomplice and accessories to malversation
interests; or
Can a private property be the subject of 6. By taking undue advantage of official position,
Malversation? authority, relationship, connection or influence to
unjustly enrich himself or themselves at the
1. YES, under the 2nd act in Article 222, that is
expense and to the damage and prejudice of the
when the said funds or property has been
Filipino people and the Republic of the Philippines
attached, seized or deposited by public
authority, it now becomes in custodia legis and Sec. 2. Definition of the Crime of Plunder, Penalties. Any
it now assumes the character of being public public officer who, by himself or in connivance with
funds or property. If any are misappropriated, members of his family, relatives by affinity or consanguinity,
then the crime committed is Malversation and business associates, subordinates or other persons, amasses,
not theft. accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described
ANTI-PLUNDER ACT (RA 7080))
in Section 1 (d) hereof, in the aggregate amount or total value
Plunder is committed by any public officer who by himself or of at least Fifty million pesos (P50,000,000.00), shall
in connivance with any member of his family, relatives by be guilty of the crime of plunder and shall be punished by life
affinity or consanguinity, business associates, subordinates, imprisonment with perpetual absolute disqualification from
or any other persons, amasses, accumulates, or acquires ill- holding any public office. Any person who participated with
gotten wealth through a series or combination of overt the said public officer in the commission of plunder shall
criminal acts in the aggregate amount or total value of at likewise be punished. In the imposition of penalties, the
least 50 million pesos. degree of participation and the attendance of mitigating and
extenuating circumstances shall be considered by the court.
ILL-GOTTEN WEALTH Q: Public officer X and his five subordinates were charged of
Plunder. The ombudsman found probable cause and
- means any asset, property, business enterprise or
thereafter filed a case before the Sandiganbayan.
material possession of any person within the purview of
Sandiganbayan found probable cause and it issued a warrant
Section two (2) hereof, acquired by him directly or
of arrest. Public Officer X got a tip from inside the
indirectly through dummies, nominees, agents,
Sandiganbayan that a warrant against them had been issued.
subordinates and/or business associates by any
Upon learning of this, they immediately went to the police
combination or series of the following means or similar
station and voluntarily gave themselves up. They were
schemes:
placed behind bars and they are not allowed to post bail
because plunder is a non-bailable offense. After trial on the

104 |
merits, Sandiganbayan convicted them. But in its decision, participation of the said offender. Therefore, the Courts
the jusitices ruled that X should be punished as the principal can consider the mitigating circumstance of Voluntary
and the five subordinates should be punished as accomplices Surrender, Voluntary Plea of Guilt, Restitution of the
in the crime plunder since this is what was proven. The Amount (which is akin to voluntary surrender)
Sandiganbayan also considered their acts of surrendering to
Q: Senator X was charged with Plunder. He voluntarily
the police officer before they are arrested as a mitigating
surrendered upon learning that a warrant of arrest was
circumstance. So the penalty was lowered. Are the justices
issued against him. He and his cohorts, his subordinates,
correct?
voluntarily surrendered. Thereafter, he was charged in
A: Yes. Although as a rule, violations of special penal Court. After trial on the merits of the case, all of them were
laws, you do not consider the degree of participation or convicted: Senator X, as principal; the subordinates as mere
modifying circumstance, there is an exception – when accomplices. And the Court considered the mitigating
the law provides otherwise. In this case, under Section circumstance of voluntary surrender.
2 of RA 7080, the law expressly provides that in
A: The said Justices of the Sandiganbayan are
imposing the penalty, the degree of participation of the
correct. In case of violation of special penal laws, you
offender and the presence of any mitigating and
do not consider circumstances provided for in the RPC,
extenuating circumstances shall be considered by the
unless there is an express statement in the law. Here, it
court. Therefore the consideration of the degree of
is the law itself that provides mitigating and extenuating
participation and the consideration of mitigating
circumstances shall be considered. Likewise, the degree
circumstance of voluntary surrender are correct.
of participation. Therefore, it is correct for the
Where do you file a case of Plunder? Sandiganbayan to convict X as principal and the others
as mere accomplices in the commission of the crime.
1. Unless otherwise provided by law, Sandiganbayan
has original and exclusive jurisdiction. Just like in RA 3019, Plunder prescribes after 20 years
2. But RA 8429 – only public officers with salary from the time the last act constituting Plunder has been
grade 27 or above shall be within the jurisdiction of committed it known/it comes to the knowledge of the
the Sandiganbayan. Others, within the jurisdiction authorities.
of the RTC.
Likewise, just like in RA 3019, if the said public officer
Sec. 4. Rule of Evidence. For purposes of establishing the is of salary grade 27 or above, Sandiganbayan will be the
crime of plunder, it shall not be necessary to prove each and proper trial court.
every criminal act done by the accused in furtherance of the
Insofar as Plunder is concerned, as found by the SC in
scheme or conspiracy to amass, accumulate or acquire ill-
the case of Estrada, the SC said although Plunder is
gotten wealth, it being sufficient to establish beyond
punished by a special penal law, it is not malum
reasonable doubt a pattern of overt or criminal acts
prohibitum. It is an act malum in se because it is
indicative of the overall unlawful scheme or conspiracy.
inherently evil or wrong to amass, accumulate, or
Sec. 6. Prescription of Crime. The crime punishable under acquire ill-gotten wealth. Therefore, criminal intent
this Act shall prescribe in twenty (20) years from the last act. matters. Good faith is a defense in the crime of Plunder.
However, the right of the State to recover properties
Q: Public officer X is charged with the crime of Plunder. It
unlawfully acquired by public officers from them or from
was a very thick Information filed by the Ombudsman before
their nominees or transferees shall not be barred by
the Sandiganbayan. In the Information, it was stated that he
prescription, laches, or estoppel.
committed 20 acts of Malversation, 20 acts of Misuse of
Estrada v. Sandiganbayan public funds, 20 acts of Fraud against public treasury, 20
acts of Fraudulent conveyance of public property. All in all,
Plunder, although a special law, is malum in se.
the Information alleges he committed 80 acts and he was
Therefore, criminal intent matters. It is part of the
able to amass almost 1 billion pesos through the series of
prosecution to prove criminal intent.
acts. In order to convict Public Officer X of Plunder, is it
Q: Insofar as Plunder is concerned, what is the penalty? necessary for the Prosecutor of the Ombudsman to prove
each and every of the 80 acts alleged in the Information?
A: Under Sec. 2, the penalty is reclusion
perpetua to death. Under Sec. 2 of RA 7080, The A: Under Sec. 4, it is not necessary. In order to bring
Plunder Act, in imposing the penalty of reclusion about a conviction, all that is needed is to prove a pattern of
perpetua to death, the Court shall consider mitigating overt or criminal act indicative of the overall unlawful
and extenuating circumstances, as well as the degree of scheme for as long as the amount proven must be at least 50

105 |
million pesos. That will suffice. It is not necessary that the reposed on him. Because prisoners are accountabilities
act amassing the 1 billion pesos be proven. Otherwise, the of the Government.
case will never end. It suffices that you prove a pattern of this ✰ Can a private individual commit infidelity?
act, but it must be at least 50 million pesos. - Yes, under Art. 225. If he is entrusted with the
custody of this prisoner and the prisoner escapes,
either in connivance with him or through his
INFIDELITY IN THE CUSTODY OF PRISONERS negligence, then his liability is infidelity in the
(Articles 223, 224, 225) custody of prisoners
⮚ The offender is always the custodian of the Q: A has been charged with illegal sale of dangerous drugs.
prisoner. If he is not the custodian or the one She is behind bars, it is a non-bailable offense, and therefore,
entrusted with the custody of the prisoner, the while the case is ongoing, she is behind bars. So, it was the
crime committed is under Article 156 or delivering hearing date, she was accompanied by the jail warden, the
prisoners from jail. jail guard to the court, and after trial, there was this husband
and two children of the said woman who was in jail. The
ARTICLE 223 – CONNIVING WITH OR
husband and two children talked, and when the said woman
CONSENTING TO EVASION
prisoner was about to be brought to jail, the husband talked
ELEMENTS: to the jail warden. He invited the jail warden for a merienda,
in a canteen inside the hall of justice. And so, the jail warden
saw nothing wrong and so, he had merienda with the woman
2. He has in his custody or charge a prisoner, either
prisoner, the husband and the two children. The handcuffs
detention prisoner or prisoner by final judgment
had to be removed for the woman prisoner to eat. After
3. Such prisoner escaped from his custody
eating, the woman prisoner said that she needed to answer
4. That he was in connivance with the prisoner in the
the call of nature, and so, she went to the restroom, also
latter’s escape, or is with his consent
inside or within the hall of justice. The jail guard allowed her
ARTICLE 224 – EVASION THROUGH inside while the jail guard was left outside, waiting. Hours
NEGLIGENCE passed, no woman prisoner came out. It so happens that the
said husband put some disguise for the woman to use so that
ELEMENTS:
she could escape without being noticed by the said jail guard,
1. Offender is a public officer and woman prisoner was able to escape without being
2. He is charged with the conveyance or custody of a noticed by the said jail guard. Is the said jail guard liable for
prisoner, either detention prisoner or prisoner by infidelity in the custody of prisoner, or is it a mere laxity
final judgment which would not amount to infidelity in the custody of
3. Such prisoner escapes through his negligence prisoner?
ARTICLE 225 – ESCAPE OF PRISONER UNDER A: People v. Nava – The Supreme Court said that
THE CUSTODY OF A PERSON NOT A PUBLIC mere laxity would not amount to negligence under Art.
OFFICER 224. Because according to the Supreme Court in that old
case, the negligence being required in order that a
ELEMENTS:
public officer may be entitled, must be a deliberate non-
1. Offender is a private individual performance of his duty. Here, it is only a mere laxity
2. Conveyance (or charge) of custody of prisoner or on the part of the said public officer for not having
person under arrest is confided to him accompanying the said woman in the rest room.
3. Prisoner or person under arrest escapes
Rodriguez v. Sandiganbayan (new case) – The
4. Offender consents to the escape of the prisoner or
Supreme Court said otherwise. According to the
person under arrest or that the escape takes place
Supreme Court, the moment that a public officer, a jail
through his negligence
warden has accompanied a prisoner outside jail, he
⮚ Whether it be under Art. 223, 224, 225, the offender must not have lost sight of the said prisoner. The only
infidelity in the custody of prisoners is one who has been obligation of the said jail warden after the trial was to
entrusted with the custody and charge of the prisoner. bring her back to the court. The fact that the said jail
Whether the prisoner is a prisoner convicted by final guard allowed himself to have a merienda, and even
judgment or a detention prisoner. He must be charged, allowed the woman prisoner to go to the restroom alone,
he must be the custodian of the said prisoner because there was laxity on the part of the said jail guard. The
the essence of the crime is the violation of the trust Supreme Court said, LAXITY is a deliberate non-

106 |
performance of his official duty as the guard of the said Under Article 226, in order for infidelity in the custody of
prisoner, thereby amounting to infidelity in the custody documents to arise, it is necessary that there be damage
of prisoner under Art. 224. caused to a third person or to the public interest.
Q: A, B, C, and D are mere detention prisoners who had a If damage is serious, the penalty is QUALIFIED, therefore,
hearing at 8:30 am. They were waiting for the service vehicle the damage may or may not be serious provided that there is
of the BJMP but it was already 8:15 and the vehicle had not damage, the crime will arise.
yet arrived. Since they were late, the jail warden asked two
jail guards to accompany these prisoners to the hall of ⮚ DAMAGE IS NECESSARY in order to give rise to
justice. These two guards placed handcuffs to these infidelity in the custody of documents.
detention prisoners and they flagged down a jeepney. They ARTICLE 227 – OFFICER BREAKING SEAL
asked the people in the jeepney to move forward and so they
were made to sit at the last portion of the jeepney with the ELEMENTS:
two jail guards. On their way to the hall of justice, since the 1. Offender is a public officer
road was rocky, the jeepney stopped and as soon as it 2. He is charged with the custody of papers or property
stopped, these prisoners jumped out of the window of the 3. These papers or property are sealed by proper
jeepney and off they ran. The two guards failed to chase the authority
so the prisoners were able to escape. Are the jail guards liable 4. He breaks the seals or permits them to be broken
for infidelity in the custody of the prisoners?
Under Article 227, officer breaking the seal, infidelity in the
A: Yes, they are liable under Article 224 – evasion custody of prisoners to arise, even without damage caused to
through negligence. The Supreme Court held that the a third party or to public interest. Damage is NOT an
negligence contemplated here is not one of mere laxity. element.
The negligence here must be one which is done with
malice amounting to deliberate non-performance of MERE BREAKING of the seal of the document will already
one’s official duty. The act of these two jail guards in consummate the crime.
boarding these prisoners in the jeepney to go to the hall ARTICLE 228 – OPENING A CLOSED DOCUMENT
of justice amounted to deliberate non-performance of
their official duty. It is not a mere laxity. These jail ELEMENTS:
guards should not board these prisoners in a public 1. Offender is a public officer
vehicle. They should have waited for the BJMP and 2. Any closed papers, documents, or objects are
called the court telling them that they would be late. The entrusted to his custody
court would wait. Or they could have the hearing reset. 3. He opens or permits to be opened said closed papers,
Definitely they cannot board these prisoners in a public documents or objects
vehicle because there is a high risk that they will escape. 4. He does not have proper authority
There was negligence and therefore they are liable
under Article 224. Infidelity in the custody of documents, the public officer has
been entrusted with papers, documents or objects, which
(How about yung jail warden na nag-utos?) have been closed by proper authority and the said public
INFIDELITY IN THE CUSTODY OF DOCUMENTS officer opened the said closed document or permitted others
(ARTICLES 226, 227, 228) to open the same. Again, Damage is NOT an element.
ARTICLE 226 – REMOVAL, CONEALMENT OR MERE ACT OF OPENING the said closed document will
DESTRUCTION OF DOCUMENT give rise to the crime.
ELEMENTS: Q: What if A has been charged with illegal sale of dangerous

drugs. The case was on trial, during the trial of the case, the
1. Offender is a public officer fiscal presented the first police officer who acted as the
2. He removes, destroys, or conceals documents or poseur buyer in the course of the testimony of the police
papers officer, the fiscal produced and showed to him for
3. Said documents or papers should have been identification the marked money. So the marked money
entrusted to such public officer by reason of his office consists of five 100-peso bills. The fiscal presented it to the
4. Damage, whether serious or not, to a third party or to police and the police identified it as indeed the marked
the public interest should have been caused money because of the serial numbers and because of the
markings, and thereafter the marked money have been
marked as Exhibit A, B, C, D, E for the prosecution. After the

107 |
trial, they were placed inside an envelope and given to the REVELATION OF SECRETS (Article 229-230)
clerk of court, the custodian of the evidence which have
ARTICLE 229 – REVELATION OF SECRETS BY AN
already been marked. So trial ended that day, it was now
OFFICER
lunch time. The clerk of court was on her table and so the
vendor arrived. The clerk of court wanted to buy lunch and Punishable acts:
she said, how much. The vendor said it costs 50 peso. The
I. By revealing any secrets which affect public interest
clerk of court pulled out her money; it was a 1000 peso bill.
learned by him in his official capacity
The vendor said, “ang laki naman niyan, wala akong panukli”
ELEMENTS:
And so, by reason thereof, he gave it back to the clerk of
court. The clerk of court said that she had no smaller bills,
2. He knows of a secret by reason of his official
and he remembered the exhibits. And so, he took 100 peso
capacity
bill, marked as Exhibit E. And she paid it to the vendor and
3. He reveals such secret without authority or
the vendor gave him the change of 50 peso. After eating,
justifiable reasons
before 1:00, the said clerk of court immediately went outside
4. Damage, great or small, is caused to the public
to change her big 1000 peso bill into smaller bills. When he
interest
now has these smaller bills, he got one 100 peso bill and
marked it as Exhibit E and then he signed it and placed it It is necessary that there be Damage caused, whether
inside the envelope. Here comes the next hearing date, on serious or not.
the next hearing date, another police officer was presented,
II. Wrongfully delivering papers or copies of papers of
the fiscal produced the said documentary exhibits, the
which he may have charge and which should not be
marked money and asked it from the clerk of court. So the
published thereby causing damage, whether serious or
fiscal showed it to the police officer, the police officer
not, to a third party or to public interest.
identified Exhibits A, B, C, D. However, when it comes to
ELEMENTS:
exhibit E, the police officer said, “Your Honor, it has a
different serial number from the one in our sworn
2. He has charge of papers
statement” and so because of that, an investigation
3. Those papers should not be published
happened and the court learned that it was taken by said
4. He delivers those papers or copies thereof to a
clerk of court and used in buying food. What crime, if any is
third person
committed by the said clerk of court? Is it malversation or is
5. The delivery is wrongful
it infidelity in the custody of documents?
6. Damage is caused to public interest
A: The crime committed is infidelity in the
ARTICLE 230 – PUBLIC OFFICER REVEALING
custody of documents under Art. 226 by the
SECRETS OF PRIVATE INDIVIDUAL
public officer in destroying the said document.
This marked money becomes documentary evidence the ELEMENTS:
moment they have been marked as exhibits. Money here
is not used as a medium of exchange, but as documents
2. He knows of the secrets of private individual by
because they have been marked as documentary
reason of his office
evidence. The moment they have been taken, removed,
3. He reveals such secrets without authority or
concealed or destroyed, the crime committed is
justifiable reason
infidelity in the custody of documents because the clerk
of court is the custodian of the documentary exhibits. If Damage is NOT an element in Article 230.
money is used, not as a medium of exchange, but like
ARTICLE 231 – OPEN DISOBEDIENCE
this, as documentary exhibits or any other use other
than as a medium of exchange, the one who malversed, ELEMENTS:
or used it is the custodian of the said documents, the
1. Offender is a judicial or executive officer
crime is infidelity in the custody of documents and NOT
2. There is judgment, decision, or order of a superior
malversation.
authority
When the clerk of court took the 100-peso bill, he 3. Such judgment, decision or order was made within
destroyed the exhibit, the documentary exhibit of the the scope of the jurisdiction of the superior authority
said prosecution and the prosecution was seriously and issued with all the legal formalities
damaged interface. 4. Offender without any legal justification openly
refuses to execute the said judgment, decision or
⮚ Articles 227 and 228 – damage is not an element.
order which he is duty bound to obey

108 |
Open Disobedience is committed by any judicial or this so-called “rape”, the fiscal moved that the subpoena ad
executive officer who shall openly refuse without any legal testificandum be sent to this public officer, the medico legal
motive to execute a judgment or decision rendered by a office who examined the rape victim. However, despite
superior authority in the exercise of his duty and in the receipt of the said subpoena, the medico legal officer failed
legal infirmities of the law. to appear. He did not appear without any justifiable reason
at all. The said prosecutor move again for the issuance of
Q: What if in the case of Duterte, the sheriff wishes to
another subpoena, a second subpoena. Again, despite the
execute a writ of execution and cause the squatters to leave
receipt, the medico legal officer failed to appear in court and
the place because of the execution issued by the court has to
testified and failed to give the copy of the medico legal
be implemented. Had not the sheriff performed the said act,
certificate. What crime if any has the said medico legal
is he liable of any crime? Had the sheriff refused to execute
officer has committed?
the writ of execution issued by the said judge? Is he liable of
any crime? A: He is liable for Refusal of Assistance under
Article 233. It is committed by a public offcer that
A: Yes, he is liable of Open Disobedience under
despite demands of the public authority shall fail to lend
Article 231. He openly refused to execute a writ of
his cooperation toward the administration of justice or
execution issued by a judge.
any other public service. Thereby, causing damage
ARTICLE 232 – DISOBEDIENCE TO ORDER OF serious or not, to public interest.
SUPERIOR OFFICER, WHEN SAID ORDER WAS
NOTE: If the damage is serious, the penalty is
SUSPENDED BY INFERIOR OFFICER
QUALIFIED.
ELEMENTS:
ARTICLE 234 – REFUSAL TO DISCHARGE
1. Offender is a public officer ELECTIVE OFFICE
2. An order is issued by his superior for execution
ELEMENTS:
3. He has for any reason suspended the execution of
such order 1. Offender is elected by popular election to a public
4. His superior disapproves the suspension of the office
execution of the order 2. He refuses to be sworn in or to discharge the duties of
5. Offender disobeys his superior despite the the said office
disapproval of the suspension 3. There is no legal motive for such refusal to be sworn
in or to discharge the duties of said office
The offender refuses to disobey the suspension of the said
order which was disapproved by the said public officer. This is a crime which cannot be committed in Philippine
Jurisdiction. Refusal to discharge public duties is committed
by any person entitled to a public office by means of popular
election, refuses to assume to assume the powers and duties
of his office. He refuses to be sworn in. This will not happen
in our lifetime. This will never happen in the Philippine
Jurisdiction because here, even if he did not win in the
election, he wanted to hold office.
ARTICLE 233 – REFUSAL OF ASSISTANCE
ELEMENTS:
ARTICLE 235 – MALTREATMENT OF PRISONERS
2. Competent authority demands from the offender that ELEMENTS:
he lend his cooperation towards the administration of
1. Offender is a public officer or employee
justice or other public service
2. He has under his charge a prisoner or detention
3. Offender fails to do so maliciously
prisoner
Public officer who shall fail to lend his cooperation 3. He maltreats such prisoner either of the following
towards the administration of justice or any other public manners:
service despite demand by competent authority. a. By overdoing himself in the correction or
handling of a prisoner or detention prisoner
Q: A raped B. B was treated by a medico legal officer at the
under his charge either:
PNP. This medico legal officer who has examined A, issued a
medical certificate, And so in the case filed by B against A for

109 |
i. By the imposition of (a) Physical torture is a form of treatment or punishment

punishments not authorized by inflicted by a person in authority or agent of a person in
the rules and regulations authority upon another in his/her custody that causes severe
ii. By inflicting such punishments pain, exhaustion, disability or dysfunction of one or more
(those authorized) in a cruel or parts of the body, such as:
humiliating manner
(1) Systematic beating, headbanging, punching, kicking,
b. By maltreating such prisoner to extort a
striking with truncheon or rifle butt or other similar
confession or to obtain some information
objects, and jumping on the stomach;
from the prisoner
(2) Food deprivation or forcible feeding with spoiled
Offender – Any public officer or employee
food, animal or human excreta and other stuff or
offended party – He must be a prisoner substances not normally eaten;
⮚ In order to be considered a prisoner, it is (3) Electric shock;

necessary that the said person has already been
(4) Cigarette burning; burning by electrically heated
arrested, brought to the PNP station and he has been
rods, hot oil, acid; by the rubbing of pepper or other
incarcerated. If he is not a prisoner, then, the crime
chemical substances on mucous membranes, or acids or
can be physical injuries, whatever injuries that may
spices directly on the wound(s);
have been sustained by the prisoner, but NOT
maltreatment of prisoners (5) The submersion of the head in water or water
⮚ Maltreatment does not only include physical polluted with excrement, urine, vomit and/or blood
maltreatment. It shall also include moral, emotional, until the brink of suffocation;
psychological maltreatment because the law uses the (6) Being tied or forced to assume fixed and stressful
phrase physical injuries or damage caused. bodily position;
⮚ If as a result of maltreatment, the prisoner would die
or suffer injuries, there is a separate and distinct (7) Rape and sexual abuse, including the insertion of
charge for homicide or physical injuries because the foreign objects into the sex organ or rectum, or electrical
law provides that the liability for maltreatment shall torture of the genitals;
be in addition for any physical injuries or damage (8) Mutilation or amputation of the essential parts of
caused. the body such as the genitalia, ear, tongue, etc.;
ANTI-TORTURE ACT (RA 9745) (9) Dental torture or the forced extraction of the teeth;
Torture refers to: (10) Pulling out of fingernails;
1. an act by which severe pain or suffering, whether (11) Harmful exposure to the elements such as sunlight
physical or mental, is intentionally inflicted on a and extreme cold;
person for such purposes as obtaining from
him/her or a third person information or a (12) The use of plastic bag and other materials placed
confession; over the head to the point of asphyxiation;
2. punishing him/her for an act he/she or a third (13) The use of psychoactive drugs to change the
person has committed or is suspected of having perception, memory. alertness or will of a person, such
committed; as:
3. or intimidating or coercing him/her or a third
person; (i) The administration or drugs to induce confession
4. or for any reason based on discrimination of any and/or reduce mental competency; or
kind, when such pain or suffering is inflicted by or (ii) The use of drugs to induce extreme pain or certain
at the instigation of or with the consent or symptoms of a disease; and
acquiescence of a person in authority or agent of a
person in authority. (14) Other analogous acts of physical torture; and
It does not include pain or Buffering arising only from, (b) Mental/Psychological Torture refers to acts
inherent in or incidental to lawful sanctions. committed by a person in authority or agent of a person in
authority which are calculated to affect or confuse the mind
Acts of torture: and/or undermine a person's dignity and morale, such as:
(1) Blindfolding;

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(2) Threatening a person(s) or his/fher relative(s) with persons involved in the investigation and prosecution
bodily harm, execution or other wrongful acts; such as, but not limited to, his/her lawyer, witnesses
and relatives; and
(3) Confinement in solitary cells or secret detention
places; (c) To be accorded sufficient protection in the manner
by which he/she testifies and presents evidence in any
(4) Prolonged interrogation;
fora in order to avoid further trauma.
(5) Preparing a prisoner for a "show trial", public
WHO ARE CRIMINALLY LIABLE
display or public humiliation of a detainee or prisoner;
I. persons in authority; or
(6) Causing unscheduled transfer of a person deprived
of liberty from one place to another, creating the belief II. agents of a person in authority
that he/she shall be summarily executed;
☝ A private individual, by himself, cannot commit torture
(7) Maltreating a member/s of a person's family; but a private individual who is following orders from a
person in authority or his agent, conspiring with him
(8) Causing the torture sessions to be witnessed by the
may commit the crime because what the law requires is
person's family, relatives or any third party;
that this pain or suffering brought about by torture must
(9) Denial of sleep/rest; be inflicted by one with consent or acquiescence of a
person in authority or his agent. Therefore, there must
(10) Shame infliction such as stripping the person
always be an involvement of a person in authority or a
naked, parading him/her in public places, shaving the
person in authority.
victim's head or putting marks on his/her body against
his/her will; Aggravating Circumstances in torture:
(11) Deliberately prohibiting the victim to communicate 1. Torture resulting in the death of any person;
with any member of his/her family; and
2. Torture resulting in mutilation;
(12) Other analogous acts of mental/psychological
3. Torture with rape;
torture.
4. Torture with other forms of sexual abuse and, in
☝ Any confession, admission or statement obtained as a
consequence of torture, the victim shall have become
result of torture shall be inadmissible in evidence in any
insane, imbecile, impotent, blind or maimed for life;
proceedings, except if the same is used as evidence
and
against a person or persons accused of committing
torture. 5. Torture committed against children.
Rights of Tortured Victims: SECTION 15 – TORTURE AS A SEPARATE AND
INDEPENDENT CRIME
(a) To have a prompt and an impartial investigation by
the CHR and by agencies of government concerned such Torture as a crime shall not absorb or shall not be
as the Department of Justice (DOJ), the Public absorbed by any other crime or felony committed as a
Attorney's Office (PAO), the PNP, the National Bureau consequence, or as a means in the conduct or
of Investigation (NBI) and the AFP. A prompt commission thereof. In which case, torture shall be
investigation shall mean a maximum period of sixty treated as a separate and independent criminal act
(60) working days from the time a complaint for torture whose penalties shall be imposable without prejudice to
is filed within which an investigation report and/or any other criminal liability provided for by domestic and
resolution shall be completed and made available. An international laws.
appeal whenever available shall be resolved within the
SECTION 16 – EXCLUSION FROM THE COVERAGE
same period prescribed herein,
OF SPECIAL AMNESTY LAW
Persons who have committed any act of torture shall not
(b) To have sufficient government protection against all benefit from any special amnesty law or similar
forms of harassment; threat and/or intimidation as a measures that will have the effect of exempting them
consequence of the filing of said complaint or the from any criminal proceedings and sanctions. (sec 16)
presentation of evidence therefor. In which case, the
State through its appropriate agencies shall afford
security in order to ensure his/her safety and all other SECTION 17 – APPLICABILITY OF REFOULER

111 |
No person shall be expelled, returned or extradited to No. You cannot complex them. Because under
another State where there are substantial grounds to Article 235, it is expressly provided that the liability for
believe that such person shall be in danger of being maltreatment of prisoners shall be in addition to the
subjected to torture. liability for any other physical injuries or damage
caused. Therefore, two crimes will be charged against
Q: What if A has just withdrawn his money from her ATM
the police officer.
account, she placed the money inside her bag and she was
already walking towards home when suddenly here comes X. There is also a violation of R.A. 9745, Anti-Torture
X snatched the handbag with the money. A police officer Act, because under Section 14 of the Anti-Torture Act,
passing by saw the incident and on boarded their mobile Torture shall not absorb and shall not be absorbed by
patrol. They were able to arrest the man, took the bag, and any other crime committed as a consequence.
returned it to the said victim. Thereafter, they placed X Therefore, he can also be held liable under the so-called
inside the mobile patrol. While inside, they kicked, mauled Anti-Torture Law.
the man. And so, the man suffered less serious physical
Q: What if these police officers contended that since these
injuries. What crime is committed by the said police officers?
three crimes arose from the same facts and circumstances
A: The crime committed is less serious physical and therefore they should be charged only of one crime
injuries. It is not maltreatment of prisoners because which is maltreatment of prisoners. Is this argument
the said person, X, is not yet a prisoner. He is only a correct?
person under arrest because he has just been arrested
A: No because it is expressly provided that the liability
for having committed a crime, but he is not yet a
shall be in addition for any physical injuries or damage
prisoner. In order to be considered as a prisoner, he
caused and likewise, under RA 9745 Section 15, it is
must be brought to the PNP station, taken a picture, left
expressly provided that torture as a crime shall always
view, side view, front view, thumbmark and
be independent and separate from any other criminal
incarcerated. He is now an accountability of the
liability.
Government, he is now a prisoner. But before that, he is
not yet a prisoner. He is only a person under arrest. That Q: What if these officers were convicted of RA 9745 and were
is why in the problem, the police officers are liable only put behind bars. There was an amnesty proclamation by the
for less serious physical injuries and not of state and these police officers wanted to avail of the said
maltreatment of prisoners. amnesty proclamation by the government. Can they do so?
They also committed RA 9745. A: No. they are prohibited. They cannot avail of such
amnesty proclamation or any other similar measure
Q: What if in the same problem, they chased the man. They
that would exempt them from criminal liability (Section
were able to catch the said man and brought him to the PNP
16).
station. Booked him and incarcerated him, and all the things
needed to be done to a prisoner. Later, he was brought out of ARTICLE 236 – ANTICIPATION OF DUTIES OF A
jail for investigation to be brought in the Investigation PUBLIC OFFICE
section. In the investigation, he was being forced to admit to
ELEMENTS:
the commission of the crime. And so, by reason thereof, the
police officer boxed him and gave him a huge black eye. The 1. That the offender is entitled to hold a public office or
left eye suffered so much that he lost sight, amounting to employment either by election or appointment
serious physical injuries. What are the crimes committed by 2. Shall assume the performance of the duties and
the police officer? powers of a public official or employee
3. Without being sworn into office or having given the
A: Three crimes – Maltreatment of Prisoners,
bond required by law
Serious Physical Injuries, and Violation of RA
9745. ARTICLE 237 – PROLONGING PERFORMANCE OF
DUTIES AND POWERS
Maltreatment of Prisoners because he is a prisoner who
was maltreated in order to extort a confession and ELEMENTS:
Serious physical injuries because by reason of the injury
1. That the offender is holding a public office
inflicted, he lost an eye.
2. That the period allowed by law for him to exercise
Are you going to complex them? because a single act such function and duties has already expired
constitutes a grave and less grave felony, are you going 3. That the offender continues to exercise such function
to complex them under Art. 48? and duties

112 |
ARTICLE 238 – ABANDONMENT OF OFFICE OR

POSITION
ARTICLE 241 – USURPATION OF JUDICIAL
ELEMENTS: FUNCTIONS
1. That the offender is holding a public office ELEMENTS:
2. That he formally resigns from his office
1. That the offender is holding office under the
3. But before the acceptance of his resignation, he
Executive Branch of the Government
abandons his office
2. That he:
☝ Abandonment of office is committed by a public officer
a. Assumes the power exclusively vested in the
who has already formally resigns from his position, and
Judiciary, or
having formally resigned from his position, he
b. Obstructs the execution of any order or decision
abandons to the detriment of public service despite the
given by a judge within his jurisdiction
fact that his resignation has not yet been accepted by a
superior authority. Under Labor Law, when you are an NOTE: It can only be committed by a public officer of the
employee, when you file a resignation, it does not mean Executive Branch of the Government. Therefore, if the
you are already resigned. There must be an person who assumes judicial power does not belong to the
ACCEPTANCE from the superior officer before it can be Executive Branch, but belongs to the legislative branch, the
said that he have already resigned. crime is not Usurpation of Judicial Function, but
USURPATION OF PUBLIC FUNCTION AND
Q: So here, the public officer has already formally resigned,
OFFICIAL AUTHORITY under Article 177, because
his resignation has not been accepted, yet he abandons to the
Article 239, 240 and 241 are specific as to the offenders.
detriment of public service. What is the penalty?
So, let us say, in the one who encroached upon the powers of
A: In the abandonment of office, the penalty is
the Judge, does not belong to the executive branch but he is
QUALIFIED if the purpose of the said public officer is
legislator, it cannot be considered as usurpation of judicial
to evade the prosecution punishment of the crime
functions, rather it will be Usurpation Of Public Function
involving violation of Title 1 – Book 2 (Crimes against
And Official Authority Under Article 177.
National Security), or Chapter 1 – Title 3 of Book 2
(Rebellion, Coup d’etat, Sedition, etc.) ARTICLE 242 – DISOBEYING REQUEST OF
DISQUALIFICATION
ARTICLE 239 – USURPATION OF LEGISLATIVE
POWERS ELEMENTS:
ELEMENTS: 1. That the offender is a public officer

2. That a proceeding is pending before such public
1. That the offender is an executive or judicial officer
officer
2. That he:
3. That there has been a question regarding the
a. Makes general rules and regulations beyond the
jurisdiction brought before the proper authority
scope of his authority, or
4. There is a question brought before the proper
b. Attempts to repeal a law, or
authority regarding his jurisdiction, which is yet to be
c. Suspend the execution thereof
decided
NOTE: It can only be committed by an executive or
ARTICLE 243 – ORDERS OR REQUESTS BY
judicial officer
EXECUTIVE OFFICERS TO ANY JUDICIAL
ARTICLE 240 – USURPATION OF EXECUTIVE AUTHORITY
FUNCTIONS
ELEMENTS:
ELEMENTS:
1. That the offender is an executive officer
1. That the offender is a judge 2. That the offender addresses any order or suggestion
2. That the offender: to any judicial authority
a. Assumes the power exclusively vested to 3. That the order or suggestion relates to any case or
executive authorities of the Government, or business within the exclusive jurisdiction of the
b. Obstructs executive authorities from the lawful courts of justice
performance of their functions
ARTICLE 244 – UNLAWFUL APPOINTMENTS
NOTE: It can only be committed by a Judge
ELEMENTS:

113 |
1. Offender is a public officer comply with the said solicitation or immoral or

2. He nominates or appoints a person to a public office indecent advances.
3. Such person lacks the legal qualification thereof ⮚ The solicitation must not be the gospel type of
4. Offender knows that his nominee or employee lacks solicitation. It must be bad, persistent, threatening
the qualifications at the time he made the nomination such that if the woman would not comply then
or appointment there would be an adverse effect on her part.
ARTICLE 245 – ABUSES AGAINST CHASTITY ⮚ If a jail warden impregnated a female detainee,
even if they love one another, still liable because
ACTS PUNISHED: detainees are liabilities of the state.
⮚ Public officer solicits or makes any indecent or immoral
advances to a woman who is interested in matters
pending before his for his decision or where the public
officer is required to submit a report or to consult with
a superior officer
⮚ Warden or other public officer directly charged with the
care and custody of prisoners or persons under arrest,
and he solicits or makes any indecent or immoral
advances to a woman
⮚ Warden or other public officer directly charged with the
care and custody of prisoners or persons under arrest,
and the said officer makes any indecent or immoral
advances to the wife, daughter, sister or any relative
falling within the same degree of affinity of the male
prisoner.
ELEMENTS:
1. That the offender is a public officer
2. That he solicits or makes any indecent or immoral
advances to a woman
3. That the offended party is a woman who is:
a. Interested in matters pending before the public
officer for his decision or where the public
officer is required to submit a report or to
consult with a superior officer; or
b. Under the custody of the offender, who is a
warden or other public officer directly charged
with the care and custody of prisoners or
persons under arrest; or
c. The wife, daughter, sister or any relative falling
within the same degree of affinity of the person
under the custody and charge of the offender
(Mother is not included here)
Offender – He must be a public officer because there must
be abuse of public office in making immoral or indecent
advances.
Victim – always a woman.
Essence of the crime is taking advantage of one’s position
in soliciting or making immoral or indecent advances.
⮚ Mere act of soliciting or making immoral and

indecent advances will already give rise to the
crime. It is not necessary that the woman will

114 |
TITLE EIGHT present and therefore the crime is homicide. It is not

parricide because although the relationship is that of
CRIMES AGAINST PERSONS (ARTICLES 246 –
legitimate father and son, the relationship is not based
266-A)
on blood. Therefore, the crime is homicide and not
ARTICLE 246 – PARRICIDE parricide.
⮚ Parricide is committed when a person kills his father, Q: What if a stepfather killed his stepson?
mother, child, whether legitimate or illegitimate, A: The stepfather is not liable for parricide. It
legitimate other ascendant, legitimate other can either be murder or homicide, as the case may be,
descendant, or legitimate spouse. Therefore the because their relationship is not based on blood.
offended party or deceased or the victim is specified, he
must be the father, mother, child whether legitimate or ■ Again, the relationship must be
illegitimate, legitimate other ascendant, legitimate legitimate, in the direct line and by
other descendant, or legitimate spouse. blood.
⮚ In Parricide, the circumstance which will qualify is the
ELEMENTS:
relationship, therefore relationship between the
1. That a person is killed offender and the offended party must be stated in the
2. That the deceased is killed by the accused information.
3. That the deceased is the father, mother, or child,
Q: Let us say that the husband killed the wife. In the
whether legitimate or illegitimate, or a legitimate
information filed by the fiscal, the fiscal failed to state that
other ascendant, or legitimate other descendant, or
the husband is the legal husband of the said victim.
legitimate spouse of the accused
However, during trial, by virtue of a certificate of marriage,
Parricide is a crime based on relationship. it was proven that the accused was the legal husband of the
said victim-wife. Can the husband be convicted of parricide?
✰ What kind of relationship?
A: No, the husband cannot be convicted of
First, it must be a legitimate relationship except in the parricide. This is because the relationship was not
case of parent and child. alleged in the information although proven during trial.
Second, the said relationship must be in the direct Since the relationship between the husband and the
line wife is not alleged in the information, although proven
during trial, he cannot be convicted of parricide. It can
Third, the relationship must be by blood (grandfather only be murder or homicide, as the case may be.
killed a grandson, a mother killing a son, a son killing
a father) except spouses Q: What if a husband wanted to kill his wife. So he has a
mistress, the husband wanted to dispose his wife. However,
Q: So a father killed an illegitimate son. What crime is he cannot do it on his own and so the husband hired a high-
committed? profile killer, he paid the man 100,000 pesos to kill the wife.
A: It is parricide. Although the crime is based on And so the man conducted surveillance on the wife, checked
legitimate relationship, the exception is in case of the itinerary of the wife and so when the wife was getting out
children, whether legitimate or illegitimate. of the grocery, here comes the killer. The killer, on board a
motorcycle, went directly to the wife, shot her and off he
Q: A brother killed another brother. Is the crime committed went. The wife died. What crime/crimes is/are committed by
parricide? the husband and the hired killer?
A: No, the crime committed is murder or A: The husband is liable of parricide as a
homicide, as the case may be and not parricide principal by inducement. The relationship between
because the relationship between a brother and another legitimate spouses will make the crime of parricide.
brother is in the collateral line and not in the direct line.
The killer is liable for murder qualified by
Q: What if there was an argument between a legally adopted treachery with the generic aggravating
son and his father. In the course of the argument, the son circumstance of in consideration of price,
stabbed and killed the father. What crime is committed? reward, or promise. The crime committed is murder
A: Homicide. The act of killing was preceded by an and there are two qualifying circumstances attended it
argument, a fight and therefore there was no treachery which are treachery because of the manner of killing and
and none of the qualifying circumstances of murder is in consideration of a price, reward, or promise. But you
only need one qualifying circumstance to qualify the

115 |
killing to murder and therefore it is murder qualified by ⮚

The second element requires that the said legally
treachery. The other qualifying aggravating married spouse kills any or both of them or he inflicts
circumstance shall be treated only as a generic serious physical injuries upon any or both of them.
aggravating circumstance. Again, while in the act of sexual intercourse or
immediately thereafter. There is no question as to the
Conspiracy will not lie. Although they conspired for the
“actual act of sexual intercourse” but what about
killing of the wife, the husband, being the principal by
“immediately thereafter”?
inducement and the killer, being the principal by direct
participation, conspiracy will not lie. This is because the ✰ What does the phrase “immediately thereafter” mean?
circumstance which qualifies parricide, the ⮚ The Supreme Court said, “immediately thereafter”
relationship, is personal to the husband and cannot be means there must not be lapse of time between the
transferred to a stranger. That is why there will be two surprising and the killing or infliction of serious
informations filed, one is parricide as against the physical injuries. Therefore, the surprising and the
husband as a principal by inducement and the other one killing or infliction of serious physical injuries must
is murder as against the killer. be a continuing process.
ARTICLE 247 – DEATH OR PHYSICAL INJURIES Q: The wife arrived home from the market. She was about to
INFLICTED UNDER EXCEPTIONAL go the kitchen when suddenly, she heard voices in the
CIRCUMSTANCES master’s bedroom and so she opened the said master’s
bedroom and saw her legal husband in actual sexual
ELEMENTS: intercourse with another woman, her sister. Upon seeing
1. That a legally married person or a parent surprises his that, the wife who still has a knife in the basket, immediately
spouse or his daughter, the latter under 18 years of went toward the husband and stabbed him. She also stabbed
age and living with him, in the act of committing her sister. The husband and the sister both died. Of what
sexual intercourse with another person. crime would you prosecute the said wife? The wife is liable
2. That the said legally married spouse he or she kills for parricide under Article 246 for having killed her
any or both of them or inflicts upon any or both of husband. If you are the counsel of the said wife, what defense
them any serious physical injury in the act or would you put up in order to free your client from criminal
immediately thereafter liability? As a judge, of what crime should the wife be
3. That he has not promoted or facilitated the convicted of?
prostitution of his wife or daughter, or that he or she A: The prosecutor shall file a case for parricide for
has not consented to the infidelity of the other spouse. killing her husband. He shall also file a case against her
FIRST REQUISITE/ELEMENT: for the killing her sister.
⮚ Under the first element, it is required that the The defense should be Article 247 or Death
legally married spouse surprises the other spouse under exceptional circumstances.
while in the actual act of sexual intercourse with The judge should convict the accused of parricide and
another person. So note the surprising must be homicide but the penalty to be imposed is only destierro
in the actual act of sexual intercourse and because of Article 247.
NOT before, NOT after.
⮚ If you will read the book of Reyes, Justice Laurel, In an old case, the Supreme Court said that Article 247 is not
naghinanakit sya. Sabi nya, “Why? Why should it a felony. Article 247 is a privilege, in fact is it a defense. If
be in the actual act of sexual intercourse, you Article 247 is invoked, the accused is free from criminal
already saw your spouse with another man, why liability. It is an absolutory cause, an exempting
wait for the sexual intercourse? You know it will circumstance. The Supreme Court said that the penalty
happen, why wait for it for Article 247? This is what stated therein, destierro, is not really a penalty on the legally
Justice Laurel said. But the Supreme Court said no, married spouse who killed the other spouse. It is not a
the surprising must be in the act of sexual penalty but it is more of a guard, a privilege for him so that
intercourse with another person. Not before, not he may be free from any retaliation of any of the family of the
after, not during the preliminaries. victim. So destierro here is not really a penalty. Again, Article
247 is not a felony. It is a defense, a privilege; it is an
exempting circumstance or an absolutory cause.
SECOND REQUISITE/ELEMENT: ⮚ If you look at Article 247, if the injury inflicted by the
offender spouse is only less serious physical injuries or

116 |
slight physical injuries, totally there is no charge, there immediately thereafter, the law did not say that the
is no penalty to be imposed. It is only when death and killing must be done instantly. According to the
serious physical injuries were inflicted. Supreme Court, it suffices that the proximate cause for
the said killing is the said pain and the look on the said
Q: What if the husband arrived home and he saw in their
husband upon chancing his wife in the basest act of
bedroom his wife in actual sexual act with another woman
infidelity. This is an exceptional case.
and because of rage, he took a bolo and hacked his wife and
the woman who both died. Then he surrendered to the ✰ Why an exceptional case?
police. If you were the public prosecutor, what case or cases ⮚ Because henceforth, after People v Abarca,
would you file against the husband? If you were the defense the Supreme Court has already interpreted
counsel, what would be your line of defense? If you were the “immediately thereafter”, as there must be no
judge, how would you rule in the case? lapse of time between the surprising and the
A: The prosecutor should file a case of parricide and killing. The surprising and the killing must be
homicide. continuous.
⮚ Legal luminaries say that this is an exceptional
As defense counsel, he may invoke Article 247. There case because the husband was reviewing for
are also the mitigating circumstances of immediate the bar which is why he was given this special
vindication of a grave offense, sudden impulse of _. Because in all other cases after this, the
passion and obfuscation, and voluntary surrender. Supreme Court is strict in implementing
The judge should convict the accused as charged. “immediately thereafter”. The Supreme Court
Parricide and Homicide. Article 247 is not applicable is strict because this is not a felony, it is a
here because Article 247 used the word sexual privilege therefore it must be strictly
intercourse which can happen only between a man and interpreted and not liberally interpreted in
a woman. It cannot happen between two women or two favor of the accused.
men because when you say sexual intercourse, it means ⮚ Look that if the injury inflicted by the legally
the penis penetrates the genitalia of a woman. Hence, married spouse on the lover or the other
since this is a case of a wife having sexual act with spouse, is less serious physical injuries or
another woman, it is not a sexual intercourse. However, slight physical injuries, he is totally free from
the judge shall consider the mitigating circumstances of criminal liability. Liability will only come in if
Sudden impulse of passion and obfuscation, immediate the other spouse is killed or inflicted with
vindication of grave offense, and voluntary surrender so serious physical injuries.
as to lower the imposable penalty. ⮚ With regards to the liability of the accused to
the injuries sustained by other people, liable to
People v. Abarca
physical injuries through negligence, as the
In this case, there was this student reviewing for the bar. case maybe. There is no intent to kill the other
There were already rumors that his wife was having an victims.
affair. So one time, he went home unannounced. Upon ⮚ Note that the SC ruled that inflicting death
his arrival, he saw his wife in sexual intercourse with under exceptional circumstances is NOT
another man. The man jumped out the window. The murder.
husband wanted to kill the man but he had no weapon
at the time. The man went away. It took the husband an QUESTION FROM QUIZ (1A ’19- ’20):
hour before he was able to find a weapon and upon
Q: Dennis, arriving home, was shocked to see Cela, his wife,
finding a weapon, he went directly to the whereabouts
hugging a man at the gate. Angrily, he dragged Cela to the
of the man, the lover of the wife and killed the man. It
house. Inside, Dennis slapped Cela who rushed to the
took him one hour. The killing took place an hour, not
kitchen. Dennis followed, took a knife & stabbed Cela twice.
in the actual sexual intercourse, but is it immediately
Cela was 8months pregnant. Dennis was about to stab Cela
thereafter? Despite the fact that one hour had lapsed,
a third time but his arm was hit by Sara w/ a doll. Dennis
would it be within the meaning of immediately
turned his ire on Sara, 6-year old child of their helper, Liz.
thereafter?
He slapped & undressed Sara, pinned her on the floor, &
The Supreme Court, in this special case, said yes. inserted his penis into her genitalia as she cried aloud.
According to Supreme Court, when the law uses the Dennis was putting his pants on, when Liz entered the house
phrase “immediately thereafter”; that the killing or the & shouted aloud. Dennis stabbed Liz & left.
infliction of serious physical injuries must take place

117 |
Cela & the fetus inside her womb died. Liz survived only after it will result to a separate and distinct charge of Frustrated
medical operation. or Attempted Homicide or Murder or Parricide.
What crime/s is/are committed by Dennis? Explain. 3. Do not say: frustrated Homicide or Murder AS THE
CASE MAY BE – it is wrong. You have studied the difference
ANSWER:
between MURDER and HOMICIDE. So based on the facts of
Dennis liable of the following crimes: the problem, state the right crime; frustrated Homicide if
there is no qualifying circumstance and Murder is a
• Complex crime of parricide with Intentional Abortion
qualifying circumstance under Art. 248 is present.
(Art. 246 in relation to Art. 256 (1) of RPC. Dennis’ act of
stabbing Cela resulted to 2 felonies: Parricide for having ARTICLE 248 – MURDER
killed his legitimate spouse and intentional abortion for
ELEMENTS:
having killed his legitimate spouse and intentional abortion
for having killed the eight-month old fetus inside Cela’s 1. That a person was killed
womb. It is intentional abortion because Dennis knew that 2. That the accused killed him
his wife was pregnant, yet he used violence on her. He 3. That the killing was attended by any of the qualifying
stabbed her twice and intended to stab her a third time. This circumstances mentioned in Article 248
revealed intent to kill both Cela and the fetus. Since Parricide 4. That the killing is not parricide or infanticide
and Intentional Abortion, both grave felonies, were ⮚ Murder is committed by any person who shall kill
produced by Dennis’ single act of stabbing, they are another person which will not amount to parricide or
complexed under Art. 48 RPC. infanticide and the killing is attended by the following
qualifying circumstances:
• He also committed Qualified Statutory Rape against
1. Treachery, taking advantage of superior
Sara. Under Art. 266 of RPC, which punishes carnal
strength, with the aid of armed men, or
knowledge of a woman under 12 years of age as Statutory
employing means to weaken the defense, or of
Rape under Art. 266-B, Statutory Rape is qualified when the
means or persons to insure or afford mutiny.
victim is a child below 7 years, as the penalty is death. In this
2. In consideration of price, reward or promise
case, there is no dispute that Sara was 6 years old at the time
3. By means of inundation, fire, poison,
of Rape. Hence, Qualified Statutory Rape.
explosion, shipwreck, stranding of a vessel,
• Frustrated Homicide was committed against Liz. When derailment or assault upon a railroad, fall of an
Liz entered the house and shouted, Dennis stabbed her. It is airship, by means of motor vehicles, or with
Homicide because the use of knife proved intent to kill and the use of any other means involving great
the stabbing happened at the spur of the moment. No waste and ruin.
qualifying circumstance for Murder is present. It is 4. On occasion of any calamities enumerated in
frustrated because Liz survived ONLY after medical the preceding paragraph, or of an earthquake,
operation. This means Dennis had performed all the acts of eruption of a volcano, destructive cyclone,
execution for Homicide by inflicting a fatal wound, but Liz epidemic, or any other public calamities.
survived due to a cause independent of her will, the 5. With evident premeditation.
operation. 6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim or
TAKE NOTE:
outraging or scoffing at his person or corpse
1. It is wrong to say “since the single act resulted to 2 (RA 7659)
crimes, it is complexed under Art. 48” The correct way to say ■ These are the qualifying circumstances for murder
it: “Since the single act of stabbing resulted to 2 GRAVE (See Article 14-aggravating circumstances, Book I)
FELONIES of parricide and intentional abortion…” The Know the elements in Article 14.
term: “GRAVE FELONIES” must be included. ■ All of these are aggravating circumstance under
Article 14. Note, in order to qualify a killing to
2. There is no crime of rape with frustrated homicide or
murder, only one is necessary.
Physical injuries. Under Art. 266, when by reason or on
occasion of rape, homicide is committed, there is the Special ⮚ If in the information, A killed B and it was attended by
Complex crime of Rape with Homicide. It is not a complex treachery, in consideration of a price, reward or
crime under Art. 48, but a special complex crime wherein it promise, by means of a motor vehicle, so there are three
is the law that combines the crimes. And the law NEVER qualifying circumstances. Only one will suffice to
COMBINES rape and frustrated homicide. Hence, when the qualify the murder to killing, all the other aggravating
killing by reason or on occasion of rape is not consummated, circumstances will be considered not as qualifying

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circumstances but as mere generic aggravating ■ Someone is killed. Note that he can be any person; he
circumstances. can be someone from the affray, he can be a mere
passerby, he can be just someone watching the affray, so
ARTICLE 249 – HOMICIDE
long as he is killed in the affray and it cannot be
ELEMENTS: ascertained who killed him, then the person who
inflicted serious physical injuries on him is liable if he
1. That a person was killed
can be identified. If this person cannot be identified,
2. That the accused killed him without any justifying
then the person who used any kind of violence against
circumstance
him shall be criminally liable.
3. That the accused had the intention to kill, which is
presumed ARTICLE 252 – PHYSICAL INJURIES INFLICTED
4. That the killing was not attended by any of the IN TUMULTUOUS AFFRAY
qualifying circumstances of murder, or by that of
ELEMENTS:
parricide or infanticide.
⮚ When a person kills another person, and it is not 1. That there is a tumultuous affray
attended by any qualifying circumstance under Article
2. That a participant or some participants thereof suffer
248, the killing is considered as Homicide under Article
serious physical injuries or physical injuries of a less
249.
serious nature only.
ARTICLE 250 – PENALTY FOR FRUSTRATED OR
3. That the person responsible thereof cannot be
ATTEMPTED PARRICIDE, MURDER OR
identified
HOMICIDE
4. That all those who appear to have used violence upon
ARTICLE 251 – DEATH CAUSED IN A TUMULTOUS
the person of the offended party are known.
AFFRAY
■ Note that the victim here must be a participant. The law
A tumultuous affray is a commotion, wherein people fight
is specific. The participants must be the one injured
in a tumultuous or confused manner such that it cannot be
with serious physical injuries or less serious physical
ascertained or determined who has killed the victim or who
injuries. Not slight physical injuries.
has inflicted physical injuries on the victim.
⮚ Article 252, we have physical injuries inflicted in
ELEMENTS: tumultuous affray, is committed when in a tumultuous
affray, a participant has suffered serious physical
1. That there be several persons
injuries or less serious physical injuries and it cannot be
2. That they did not compose groups organized for the
ascertained who inflicted these injuries but the person
common purpose of assaulting and attacking each
who used violence on the victim can be identified or
other reciprocally
determined.
3. That these several persons quarreled and assaulted
one another in a confused and tumultuous manner. ⮚ If the injury caused to the victim is only slight physical
4. That someone was killed in the course of the affray. injuries, then no one is liable because if a person
5. That it cannot be ascertained who actually killed the engaged in a tumultuous affray or participated therein,
deceased the law presumes that it is __ therefore no one is liable
6. That the person or persons who inflicted serious if the injuries sustained is only slight physical injury and
physical injuries or who used violence can be it cannot be determined who inflicted the said slight
identified. physical injury on the victim.
⮚ Article 251, death in a tumultuous affray, is committed Q: There was this tumultuous affray, several people were
when there are several persons who do not compose attacking and fighting each other. Suddenly, here comes a
groups which have been organized to assault and balot vendor. He saw the affray. He was just there, watching,
quarrel with one another reciprocally, assaulted and suddenly he fell on the ground. He died because of a stab
attacked each other reciprocally and in the course of the wound. Now, it cannot be ascertained who stabbed him, so
affray, someone is killed. And it cannot be ascertained no one saw who stabbed him. Who will be held criminally
or identified or determined who killed the victim, then liable?
the person who inflicted serious physical injuries or
A: Any person who inflicted serious physical
those who used violence against the said victim can be
injuries on him. No one has seen also who had
identified.
inflicted serious physical injuries against him. The any

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person who inflicted any violence against him A: No because the initiative to kill did not come from
shall be criminally liable. the sai person who was ill. The crime committed by
the mother is parricide for killing her son. If it were
Q: There was this tumultuous affray, several people were
other person, it was murder. Evidently, it was murder
attacking and fighting each other. Suddenly, here comes a
because there was evident premeditation; there was
balot vendor who saw the affray and he was just there,
thinking before doing the act of mercy-killing.
watching. While he was watching the affray, one of the
participants of the affray, X, saw him and went directly to the ARTICLE 254 – ILLEGAL DISCHARGE OF
balot vendor and stabbed him twice. The balot vendor died. FIREARMS
What crime is committed? Is it under Article 251, Death in
ELEMENTS:
tumultuous affray?
1. That the offender discharges a firearm against or at
A: No. It is murder or homicide as the case may
another person
be. This is because the perpetrator of the crime is
2. That the offender has no intention to kill that person
identified, ascertained or determined. Death in a
tumultuous affray under Article 251 can only be charged Q: What if there was this park. The park was full of people
if the actual perpetrator of the crime who killed the and then suddenly, here comes X, X went to the park, put out
victim cannot be ascertained or identified. his firearm, and he fired shots in the air. What crime is
committed?
ARTICLE 253 – GIVING ASSISTANCE TO SUICIDE
A: X committed Alarms and Scandals under
TWO ACTS PUNISHABLE:
Article 155. When he fired shots in the air, his intention
I. By assisting another to commit suicide, whether the was to cause disturbance of public peace and
suicide is consummated or not; or tranquility. The firearm was not aimed towards any
II. By lending assistance to another to commit suicide to the person.
extent of doing the killing himself.
Q: What if X went to a public place full of people. X saw his
⮚ Giving assistance to suicide – binigyan mong rope;
enemy, Y, and so to threaten Y, X pulled out his firearm,
binigyan mo ng poison.
aimed the firearm at Y in order to threaten him. X discharges
⮚ A friend wanted to commit suicide, he doesn’t know the the firearm, however, with no intention to kill Y. His only
way, the means and you agreed with him, you assisted intention is to threaten Y and Y was not killed. What crime
and gave the best poison in the world. So you assisted is committed?
the said friend in committing suicide. Note that if a
person assisted in committing suicide by giving him A: The crime committed is Article 254, Illegal
poison, the initiative must come from him. The desire to Discharge of Firearms. Illegal discharge of firearms
kill himself must come from the victim. He wanted to is committed by any person who aims and discharges
commit suicide and you merely provide assistance in the the firearm to any other person absent the intent to kill
commission of suicide. the said person. The purpose is merely to threaten the
⮚ B wanted to commit suicide, here comes A, A gave said person.
assistance to B but B survived. B did not die. Only A is Q: What if in the same public place, X went there and pulled
criminally liable because suicide or attempt to commit out his firearm because he saw his enemy, Y. He aimed the
suicide is not a felony within Philippine jurisdiction. It gun at Y with intent to kill, because he wanted to kill his
is only the one who assisted to commit suicide is enemy. However, Y saw it and was able to avoid. What crime
criminally liable but not the person who attempted to is committed?
commit suicide.
A: X committed attempted homicide or murder,
Q: What if a terminally sick person with cancer, he was lying as the case may be. Although Y was not hit, the fact
in bed, almost lifeless and it was only a machine that was that the said firearm was discharged with intent to kill,
giving life to his body. Now, the mother of the patient and it is already attempted homicide or murder, as the case
she took pity of her son because the son was agonizing and may be.
was only breathing through the said machine. The mother
wanted to finish the suffering of the son and at the time she Q: What if in the said merry-making, there were so many
visited the hospital, she turned off the machine and the son people. X went there. He saw his enemy Y and went directly
died. He killed her son out of mercy. So it is mercy-killing or to Y, took out his gun and he poked the gun without
euthanasia. Is the mother liable for giving assistance to discharging. What crime is committed?
suicide?

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A: The crime committed is other light threats. So NOTE: The penalty will be lowered not by one, but by two
here, threatening another with a gun, without degrees, from reclusion perpetua to death, the penalty of the
discharging, only poking. It is other light threats. It is mother will only now become prision mayor.
not grave threats, it is not light threats. It is only other
Q: What if let us say that the killer of the less than three day
light threats, arrestomenor.
old child is the maternal grandparents. The grandparents
■ So kapag discharge, pinutok – it could either be alarms conspired in the killing in order to conceal the dishonor of
and scandals, illegal discharge of firearms, or attempted their daughter. What is the effect of the concealment of the
or frustrated murder or homicide, as the case may be. dishonor?
■ If no discharging, only poking, or threatening with a
A: The concealment of the dishonor will also
firearm – it is only other light threats
mitigate the criminal liability of the maternal
ARTICLE 255 – INFANTICIDE grandparents that is one degree lower. So sa
mother, two degrees lower, from reclusion perpetua to
Infanticide is the killing of a child less than three (3) days old
death magiging prision mayor. Sa maternal
or less than seventy-two (72) hours. So in the case of
grandparents one degree lower lang, from reclusion
infanticide, it is the age of the victim that is controlling. The
perpetua to death it will now become reclusion
victim, the child, the infant, must be less than three (3) days
temporal. Whatever it is, concealment of dishonor is
old. He must be less than seventy-two hours. If it is only
akin to a privilege mitigating circumstance because the
three (3) days old or above it is any other crime but not
lowering of the penalty is not merely by periods but by
infanticide.
degrees. So it is akin to a privilege mitigating
Offender in Infanticide – the offender can be the circumstance.
parents, the mother, the father, the grandparents or it can be
Q: So what if in the same problem I gave, the woman gave
any other person so long as the child is less than three (3)
birth to the child and wanted to kill the child but this time
days old, it is infanticide. It is the age that is
the infant is already three days old and the child was killed
controlling, not the relationship.
by the said mother and the friend. What are the crimes
Q: So what if there was this woman and this woman gave committed?
birth to a child. After giving birth to the child while the child
A: The mother is liable for parricide while the
was only a day old, she already wanted to kill the child in
stranger/friend is liable for murder. And this
order to conceal her dishonor. However, she could not kill
time no amount of concealment of dishonor will
the child by herself and so she asked a favor from a friend.
mitigate the criminal liability of the mother. So there
And so the friend arrived and both the mother and the said
lies a difference between parricide and infanticide if the
friend killed the child, a day old, by suffocating the said child
offender is the parent or the mother of the child.
with a big pillow. The child less than three days old, died.
What crime/s is/are committed? JUST REMEMBER: If the child is less than three days old
or less than 72 hours, IT IS INFANTICIDE. It is the age that
A: The mother is liable for infanticide. The said
controls. If the child is three days old and above,
stranger friend is also liable for infanticide.
PARRICIDE OR MURDER, as the case may be. It is obvious
There was conspiracy on them. This time conspiracy on
murder because a three-day old child or infant is totally
life, both of them are liable for infanticide under only
defenseless.
one information. Isang information lang sa court and
that is infanticide. Both the mother and the friend are
conspirators of infanticide.
Now let us say that the mother is convicted. If the
ARTICLE 256, 257, 258 AND 259 ARE ALL ABOUT
mother is convicted, the penalty imposed by the law as
ABORTION
provided in Article 255 is equivalent to parricide which
is reclusion perpetua to death. On the other hand, if the ARTICLE 256 – INTENTIONAL ABORTION
stranger is convicted under Article 255, the penalty to
ARTICLE 257 – UNINTENTIONAL ABORTION
be imposed is equivalent to murder therefore, also
reclusion perpetua to death. But note the charge is that ARTICLE 258 – ABORTION PRACTICED BY THE
he is guilty of infanticide. The fact that the said mother WOMAN HERSELF OR BY HER PARENTS
killed the child, less than three days old, in order to
ARTICLE 259 - ABORTION PRACTICED BY A
conceal dishonor will mitigate the criminal liability
PHYSICIAN OR MIDWIFE AND DISPENSING OF
of the mother.
ABORTIVES

121 |
Note that there are four (4) articles on abortion but there are or by her parents. So, both of them are liable for
only two (2) type of abortion: intentional abortion.
1.) INTENTIONAL ABORTION Q: But what if despite the fact that the female student had
2.) UNINTENTIONAL ABORTION already taken or drank the abortive beverage still the fetus
survived? Malakas ang kapit ng ba tasa maternal womb.
Because the abortion practiced by the woman herself or the
What crime is committed if any by the boyfriend and the
mother and the abortion practiced by a physician or midwife
girlfriend? Is there a crime such as frustrated intentional
are all intentional abortion. So in effect, we only have to
abortion?
kinds of abortion. We have intentional abortion and
unintentional abortion. A: YES. There is a crime such as frustrated
intentional abortion. Here, the said woman has
ABORTION – is the willful killing of a fetus from the
already taken the said abortive beverage. He has already
mother’s womb or the violent expulsion of a fetus from the
performed all the acts necessary to consume the crime
maternal womb which results in the death of the fetus.
of abortion however, abortion did not result because of
INTENTIONAL ABORTION is committed in three (3) causes independent of their will.
ways: Malakasangkapitngbatasa maternal womb and so the
baby survived. And so, they are both liable for
1.) By using violence upon the person of the pregnant
frustrated intentional abortion.
woman resulting to abortion.
Is there a crime such as frustrated unintentional
2.) Without violence, by acting without violence,
abortion?
without the consent of the woman by administering
⮚ NO. This time there is no crime such as frustrated
aborting drugs or beverages without the consent of
unintentional abortion. Because in unintentional
the pregnant woman.
abortion, the intention is against the woman and
3.) By acting without violence, with the consent of the
abortion only happens unintentional.
pregnant woman that is by administering aborting
drugs or beverages to a pregnant woman this time Q: So let’s say a man exerted physical violence against the
with her consent. woman who happens to be his enemy. The said woman was
severely hurt however, the baby was not hurt. The fetus
UNINTENTIONAL ABORTION can only be committed
inside the tummy did not die. What is the crime committed
in one (1) way and that is by exerting physical violence on a
by the said man?
pregnant woman. And in result thereof, an unintentional
abortion was suffered. In unintentional abortion the force A: Only serious physical Injuries against the
employed was physically exerted on a pregnant woman. The woman. No crimes against the fetus because there was
intention of the offender is not against the baby or the fetus no intent in so far as the fetus is concerned.
but against the mother. His intention is against the mother
Q: But what if in the said problem, the man inflicted violence
but in so doing, since the mother is pregnant, the baby/fetus
on the pregnant woman who happens to be his enemy. Let’s
was also aborted. So abortion was unintentionally caused.
say he kicked and moved the said woman severely and by
Q: So what if there were two college students, a boyfriend reason thereof the pregnant woman suffered serious
and girlfriend. The girlfriend became pregnant and the physical injuries. What crime/s is/are committed?
boyfriend said, ‘I am not yet ready. We are still so young so I
A: The crime committed against the woman is
cannot marry you.’ And so by reason thereof the girlfriend
serious physical injuries. As against the fetus,
said, ‘how about my situation? I am already pregnant.’ And
the crime committed is unintentional abortion.
so by reason thereof, they both decided in order to conceal
Now, it resulted from one single act therefore it will
the dishonor of the said female student, they both decided to
result to a complex crime of SERIOUS PHYSICAL
abort the fetus. So what the boyfriend did was he went to the
INJURIES WITH UNINTENTIONAL ABORTION
sidewalks of Quiapo and bought there aborting beverages
under ARTICLE 48 OF BOOK 1. It is a complex crime.
and he administered the same to the said woman. And the
It is a single act resulting to two less grave felonies.
female student drank the aborting beverage and the fetus
died. What crime/s is/are committed? Q: What if a husband arrived home at 5 o’clock in the
morning. He saw his wife looking at the children and is
A: In so far as the boyfriend is concerned, the crime
making breakfast. Suddenly the cellphone of the wife rang,
committed is intentional abortion under Article 256. In
the pregnant wife answered the cellphone and she began
so far as the said female student is concerned, the crime
giggling. When she began giggling, the husband took the
committed is also intentional abortion but it is under
cellphone from the said wife and listened to the cellphone.
Article 258 – Abortion practiced by the woman herself

122 |
He heard a voice of a man on the other line of the cellphone. ⮚ So under Article 260, the persons who are liable are the
Since he heard the voice of the man and he just arrived from combatants and adversaries, those who engage in a duel
work, he became jealous and with the use of a knife he and yung kanilang alalay, yung seconds.
stabbed the wife. The wife died and the fetus died. What
crime/s is/are committed? ARTICLE 261 – CHALLENGING TO A DUEL
A: In so far as the wife is concerned, the crime THREE ACTS PUNISHED:

committed is parricide. In so far as the baby is I. By challenging another to a duel.
concerned, the crime committed is II. By inciting another to give or accept a challenge to a
unintentional abortion. Again, it resulted from one duel.
single act of stabbing the wife therefore it will give rise III. By scoffing at or decrying another publicly for having
to a COMPLEX CRIME OF PARRICIDE WITH refused to accept a challenge to fight a duel.
UNINTENTIONAL ABORTION. There is a crime ⮚ Under Article 261, the persons criminally liable are both
against the wife which is parricide and against the fetus the challenger and the instigator.
which is unintentional abortion resulting from a single
act therefore, it is parricide with unintentional abortion. NOTE that if it is not a duel or there is no agreement to
combat or to fight, let’s say there was no agreement between
Q: What if she was able to go to the hospital but the doctors A and B to fight and yet they fought and B died, the crime
only saved the baby and not her? What is/are the committed is HOMICIDE because Article 260 and 261 only
crime/crimes committed by the husband? applies if there is an agreement to fight, to a duel or a
A: parricide. There is only intent against the wife and combat.
not on the fetus therefore if the fetus remained unhurt CRIMES OF PHYSICAL INJURIES:
or it did not die, there is no crime against the fetus or
the baby. ARTICLE 262 – MUTILATION
ARTICLE 259 - ABORTION PRACTICED BY A Mutilation is the clipping off or chopping off of a particular
PHYSICIAN OR MIDWIFE AND DISPENSING OF part of a body which is not susceptible to grow again.
ABORTIVES Two kinds of mutilation:
⮚ UNDER ARTICLE 259, there is another act 1.) By intentionally depriving another of a part of his
punished and that is dispensing of abortives. body which is an essential part for reproduction.
Dispensing of abortives is committed by a pharmacist 2.) By intentionally committing other mutilation that
who shall dispense an abortive without a prescription is, by depriving him of any other part of his body
from a physician. The mere act of dispensing the said with intent to deprive him of such part of his body.
abortives without prescription from a physician will
hold the said pharmacist criminally liable. Under the first kind, that is mutilating an organ essential
for reproduction, is otherwise known as CASTRATION. You
ARTICLE 260 - DUEL will know that the penalty is even higher than homicide.
A DUEL is a combat with deadly weapons concerted Killing a person is only punishable by reclusion perpetua
between two or more persons who have decided or agreed to while castrating a person is punishable by reclusion
a fight. temporal to reclusion perpetua. Because if you are castrated
it is as if you are already killed. That’s why it has a higher
THREE ACTS PUNISHED IN A DUEL: penalty.
I. By killing one’s adversary in a duel. ☝ Mutilation is a felony which cannot be committed out of
II. By inflicting physical injuries upon one’s adversary. imprudence or negligence. Because the law requires
III. By making a combat by merely entering into a duel. that there must be the deliberate intent to mutilate, the
ELEMENTS OF A DUEL: deliberate intent to clip off, to severe a particular part of
the body of a person. Absent that deliberate intent, any
1. It is necessary that the offenders that there was an person who loses a part of his body, it can only be
agreement to engage in combat or in a fight. serious physical injuries but not mutilation. So in
2. There must be two or more seconds for each mutilation it is always committed with deliberate intent
combatant. or dolo to mutilate. Absent that, it is serious physical
3. The firearms or the arms to be used as well as the injury.
other terms of the combat must be agreed upon by the
said seconds.

123 |
Q: Let’s say A and B were engaged in a fight, they were both 1. When the injured person becomes insane, imbecile,
fighting and A was losing and so he took out his bolo. His impotent, or blind in consequence of the physical
intention was to cut the body of B in order to defeat him injuries inflicted.
however, B tried to prevent him and placed his hand and by 2. When the injured person:
reason thereof, the right hand of B was severed from his a. Loses the use of speech or the power to
body. Is the crime committed mutilation? heal or to smell, or loses an eye, a hand, a
foot, an arm or a leg; or
A: NO. It is not mutilation because there was no
b. Loses the use of any such member, or
deliberate intent to clip off or to severe the right
c. Becomes incapacitated for the work in
hand of B. His intention was to attack or to stab B and
which he was therefore habitually
in so doing, it resulted to the loss of an arm therefore,
engaged in the consequence of the
the CRIME COMMITTED IS SERIOUS PHYSICAL
physical injuries inflicted
INJURIES. Physical injuries can either be serious
3. When the injured:
physical injuries, less serious physical injuries or slight
a. Becomes deformed
physical injuries.
b. Loses any other member of his body; or
Q: What if X is envious of the long, shiny hair of Y. One day, c. Becomes ill or incapacitated for the
when Y was asleep, X cut the long, shiny beautifully colored performance of the work in which he was
hair of Y into a very short one. Is X liable of mutilation? If habitually engaged for more than 90 days,
no, what crime is committed? in consequence of the physical injuries
inflicted
A: No. The hair, although part of the body, is
4. When the injured person becomes ill or
susceptible of growing again.
incapacitated for labor for more that 30 days (but
The crime committed depends on the intention of X. If must not be more than 90 days), as a result of the
the intent is to annoy or vex Y, it is unjust vexation. If physical injuries inflicted.
the intention is to humiliate Y, the crime is slander by
Note: All of these, all of the enumeration mentioned in Art.
deed.
263 are already considered serious physical injury. If a
PHYSICAL INJURIES person becomes ill or incapacitated for more than 30 days, it
is already serious physical injuries. It is already divided into
⮚ is the act of wounding, beating or assaulting another categories for purposes of penalty. Because they differ in
with no intent to kill. It also involves the act of penalty. But the moment the said person, by reason of the
knowingly administering injurious beverages or said injury becomes ill or incapacitated for labor for more
substances absent intent to kill. So always there is no than 30 days, it is already, serious physical injury.
intent to kill in order to amount to physical injuries
because even if the injury is only slight or no injury at So the FIRST CATEGORY is, that the injured person
all but if there is intent to kill, it is already in the stage becomes INSANE.
of homicide. So there must be no intent to kill. INSANITY refers to a mental disease by reason thereof
⮚ It also includes the act of knowing administering a person can no longer appreciate the consequences of
injurious substances absent intent to kill. his act.
⮚ So always, there is no intent to kill in order to amount
IMBECILITY is when a person is already advanced in
to physical injuries.
age, yet he has only the mind of a 2-7 year-old child.
⮚ Because even if the injury is only SLIGHT or no injury
at all, but there is intent to kill, it is already in the IMPOTENCY includes the inability to copulate or
attempted stage of Homicide. So there must be no sterility.
intent to kill.
BLINDNESS requires loss of vision of both eyes by
reason of the injury inflicted. Mere weakness in vision is
not contemplated.
Under the SECOND CATEGORY:
ARTICLE 263 – SERIOUS PHYSICAL INJURIES
The offender loses the use of speech or the power to heal
Under Art. 263, the serious physical injuries
or to smell, or loses an eye, a hand, a foot, an arm or a
punished are:
leg.

124 |
- So if it is only an eye which has been lost, it is she now looks like Vilma Santos. Is the accused person liable
serious physical injury but under the Second for serious physical injuries?
Category already. The penalty is lesser than that of
A: Yes. Even if she became prettier than before, it is still
the First Category.
a fact that by reason of the said injury it cannot be
Under the THIRD CIRCUMSTANCE/CATEGORY: healed through the natural healing process. It will
require the attendance of medical surgeon. Therefore, it
When the offender becomes DEFORMED.
is considered as a deformity.
So what is this so-called DEFORMITY which will result in
If the said physical ugliness is not located on a visible or
serious physical injury?
conspicuous place, it would be depending on the deployment
Q: A hacked B with the use of a bolo on his stomach. So there of medical attendance.
was a big mark on his stomach despite the fact that it was
QUALIFIED SERIOUS PHYSICAL INJURIES:
already healed, there was a big scar on the said stomach. The
doctor said that the said injury requires medical treatment 1. If it is committed against any of the persons
for 2 weeks. What crime is committed? Is it serious physical enumerated in Parricide. That is when serious
injury or is it less serious physical injury? physical injuries is committed against the father,
mother, child, whether legitimate or illegitimate;
A: The crime committed is only LESS SERIOUS
legitimate other ascendant or other descendant and
PHYSICAL INJURY. There was no deformity. Although
legitimate spouse of the accused.
there was a big scar on the stomach, it would not
2. If in the infliction of serious physical injuries, it is
amount to deformity. An injury in order to amount to
attended by any of the qualifying circumstances for
deformity which would bring about serious physical
murder.
injury must result to a physical ugliness on a person.
There are 3 requisites before deformity may be ARTICLE 264 – ADMINISTERING INJURIOUS
considered as a serious physical injury: SUBSTANCE OR BEVERAGES
1. There must be physical ugliness produced on a ELEMENTS:
body of a person
1. The offender inflicted serious physical injuries upon
2. The said deformity should be permanent and
another
definite abnormality and it would not heal
2. It was done by knowingly administering to him any
through the natural healing process
injurious substances or beverages or by taking
3. The said deformity must be located in a
advantage of his weakness of mind or credulity
conspicuous and visible place
3. He had no intent to kill
EXAMPLE OF “The said deformity should be permanent
ARTICLE 265 – LESS SERIOUS PHYSICAL
and definite abnormality and it would not heal through the
INJURIES
natural healing process”:
Q: A boxed B. He lost his 2 front teeth permanently. What ⮚ LESS SERIOUS PHYSICAL INJURIES is committed
crime was committed? if by reason of the injury inflicted, the offended party
requires medical attendance or he cannot perform the
A: The crime committed was SERIOUS PHYSICAL work with which he is habitually engaged for a period
INJURY. Because it is a deformity even if the doctor of 10-30 days. So the requirement of medical
says that he can still replace it, the fact still remains that attendance or his incapacity to do his work for a
it cannot be healed through a natural healing process. period of 10-30 days, it will bring about less serious
physical injury.
Q: A boxed B, A lost a molar tooth.
QUALIFIED LESS SERIOUS PHYSICAL INJURIES:
A: The crime committed will LESS SERIOUS OR
SLIGHT PHYSICAL INJURIES depending on the 1. When there is manifest intent to insult or offend the
medical attendance. Because it cannot be seen. It is not injured person
located in a visible or conspicuous place. 2. When there are circumstances adding ignominy to
the offense
Q: A poured muriatic acid on the face of another person
3. When the victim is the offender’s parents,
whom he hates and so because of that, the face of that person
ascendants, guardians, curators, or teachers
becomes deformed, it became ugly. Later, she went on a
4. When the victim is a person of rank or person in
plastic surgeon. When he got out of the plastic surgery clinic,
authority, provided the crime is not direct assault

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1. Offender is a man
2. Offender had carnal knowledge of the woman against
ARTICLE 266 – SLIGHT PHYSICAL INJURIES AND
her will
MALTREATMENT
3. Such act is accomplished under any of the following
Ill-treatment of another by deed – one wherein the circumstance:
offender caused pain on the offended party although there is a. Through force, threat, or intimidation
no injury on the said offended party. b. When the offended party is deprived of reason
or is otherwise unconscious
3 KINDS OF SLIGHT PHYSICAL INJURIES AND
c. By means of fraudulent machination or grave
MALTREATMENT:
abuse of authority
1. Physical injuries which incapacitated the offended d. When the offended party is under 12 years of
party for labor from 1 to 9 days, or required medical age or is demented, even though the
attendance during the same period circumstances mentioned above be present
2. Physical injuries which did not prevent the
FIRST - “OFFENDER IS A MAN”
offended party from engaging in his habitual work
or which did not require medical attendance Offender – A MAN.
3. Ill-treatment of another by deed without causing
Offended party – A WOMAN.
any injury
SECOND - “OFFENDER HAD CARNAL
Maltreatment of another by deed without causing any injury
KNOWLEDGE OF THE WOMAN AGAINST HER
is the act of INFLICTING PAIN ON ANOTHER PERSON
WILL”"
WITHOUT CAUSING ANY WOUND OR INJURY.
The offender has carnal knowledge of a woman against her
People v. Mapalo (in Book I)
will and it is committed by using force, threat, or
Let us say that A was walking. Here comes B. B used a intimidation. When the offended party is deprived of reason
lead pipe, he went to A and hit the head of A with a lead or otherwise unconscious.
pipe. Thereafter, he ran away. The medical certificate
Q: What if the woman was sleeping when a man had a carnal
showed that the head of A did not sustain any injury. He
knowledge of the said woman. Is it rape by carnal
was charged with attempted homicide. Supreme Court
knowledge?
said, the crime committed is ILL-TREATMENT OF
ANOTHER BY DEED, a form of slight physical injury A: Yes. The Supreme Court said that the woman who is
under Art. 266. sleeping is unconscious.
According to the Supreme Court, there was pain Q: What if the woman is half asleep when the carnal
inflicted on A, but there was no injury and there was no knowledge was done by the said man? Is it still rape?
intent to kill because the said offender immediately ran
A: Yes, said by the Supreme Court. The woman was
away after hitting him a single time. So the crime
unconscious.
committed is MALTREATMENT OF ANOTHER
PARTY. THIRD:
ARTICLE 266-A – RAPE a. Through force, threat, or intimidation
b. When the offended party is deprived of reason
RAPE is now a crime against person; it is no longer a crime
or is otherwise unconscious
against chastity. Because of the amendment brought about
c. By means of fraudulent machination or grave
by RA 8353 – THE ANTI-RAPE LAW.
abuse of authority
THREE TYPES OF RAPE: d. When the offended party is under 12 years of
age or is demented, even though the
I. By a man who shall have carnal knowledge of a woman
circumstances mentioned above be present
II. Sexual Assault
III. Marital rape STATUTORY RAPE:
UNDER 12 YEARS OF AGE/ STATUTORY RAPE
I. RAPE BY CARNAL KNOWLEDGE WHEN A
MAN HAS CARNAL KNOWLEDGE OF A ⮚ This is STATUTORY RAPE. Carnal knowledge with
WOMAN AGAINST HER WILL a woman who is under 12 years of age is always
ELEMENTS: statutory rape even if the offended party voluntarily

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gave her consent, even if it was she who wanted the was not a case wherein the “sweetheart defense theory”
sexual intercourse because insofar as criminal law has acquitted a man.
is concerned, a child under 12 years of age cannot
Therefore, under any all circumstances which involves the
give a valid consent.
“sweetheart defense theory” will not lie in favor of a man.
A is 11 years old. He is cohabiting with a man who is 20 years Because it does not mean that when you are the sweetheart,
old. They are living together as if they are husband and wife. you can no longer rape the other person.
Of course, they had carnal knowledge. The man is liable for
NO FRUSTRATED RAPE
STATUTORY RAPE. The number of times that he had carnal
knowledge of the said woman, that is the number of the In Book I, there is no such thing as FRUSTRATED RAPE.
counts of rape. So if he had carnal knowledge of the woman Rape admits only 2 stages: ATTEMPTED RAPE and
5 times during the time that they were together – 5 counts of CONSUMMATED RAPE.
statutory rape. That is because the child, the victim, is below
The reason is that a mere touch of an erected penis on the
12 years of age. Insofar as criminal law is concerned, she does
labia or lips of a woman’s genitalia will already consummate
not have a mind of her own, she cannot give a valid consent.
rape.
Here, you only need to prove two things:
It is not necessary that there be deep or complete
1. the age of the victim penetration. It is not necessary that the vagina did lacerated.
2. the fact of carnal knowledge Mere touch of the lips or the labia of a woman’s genitalia
already consummates rape.
INCESTUOUS RAPE:
Q: What if, what the erectile penis has touched was the outer
Q: What if, so the law requires that the said act of carnal
portion of genitalia, that portion which became hairy during
knowledge must be with the use of force, threat, or
puberty, you have to distinguish whether it is acts of
intimidation, a father raped his daughter. The daughter did
lasciviousness or attempted rape.
not put up a fight, the father did not use force, threat, or
intimidation in the said carnal knowledge of a daughter. Is A: CASE: People v. Jalosjos
the crime committed rape?
If when an erectile penis has touched the outer
A: Yes. The crime committed is rape. It is incestuous portion of a woman’s genitalia which becomes
RAPE. In case of incestuous rape, it is the overpowering hairy during puberty, if the intention of the said
and overbearing moral influence or moral ascendency offender is to lie, to have carnal knowledge against
of an ascendant over a descendant which takes place of the said woman, it is attempted rape. But if in doing
force, threat, or intimidation. That is why in case of so, the said man has no intention to lie or to have
incestuous rape, force, threat, or intimidation is not carnal knowledge, that is only ACTS OF
indispensable; it is not necessary. Because it is the LASCIVIOUSNESS.
overpowering and overbearing moral influence or moral
II. RAPE BY SEXUAL ASSAULT
ascendency which a father has over his daughter which
takes place of force, threat or intimidation. ELEMENTS:
SWEETHEART DEFENSE THEORY 1. Offender commits an act of sexual assault
2. The act of sexual assault is committed by any of the
Q: What if A and B are lovers and then suddenly B filed a
following means
case against A because according to B, he was raped by her
a. By inserting his penis into another person’s
boyfriend. In the course of the trial of the case, the defense
mouth or anal orifice, or
of the man was the so-called, “sweetheart defense theory.”
b. By inserting any instrument or object into the
According to him, “We are sweet lovers.” Therefore
genital or anal orifice of another person
according to him, it is impossible for him to have raped her
3. The act of sexual assault is accomplished under any of
because we are sweet lovers. Will said sweetheart defense
the following circumstances:
theory lie in his favor?
a. By using force or intimidation
A: Supreme Court said, in case of “sweetheart defense b. When the woman is deprived of reason or
theory”, for it to lie, mere oral testimony will not suffice. otherwise unconscious, or
There must be documentary evidence, memorabilia, c. By means of fraudulent machination or grave
picture, love letters, etc. which would show that indeed abused of authority
they are sweethearts – boyfriend & girlfriend or lovers. d. When the woman is under 12 years of age or
But mind you, even the Supreme Court said this, there demented.

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Offender – can be any person, male or female There is marital rape when a legal husband shall have
carnal knowledge with his wife against the will of the wife.
Offended party – can also be any person, male or female
People v. Jumawan
⮚ So what if what has been inserted is the penis inside the
mouth or the anal orifice, before that would only "Among the duties assumed by the husband are his
amount to acts of lasciviousness - before the passage of duties to love, cherish and protect his wife, to give her a
RA 8353. The law says that it must be an instrument or home, to provide her with the comforts and the
object which was inserted in the genitalia or in the anal necessities of life within his means, to treat her kindly
orifice of another person. and not cruelly or inhumanely. He is bound to honor her
x x x; it is his duty not only to maintain and support her,
Q: What if it was the finger which was inserted in the but also to protect her from oppression and wrong."
genitalia of a person? Is it acts of lasciviousness or rape by
sexual assault? Husbands do not have property rights over their wives'
bodies. Sexual intercourse, albeit within the realm of
A: Supreme Court said it is RAPE BY SEXUAL marriage, if not consensual, is rape. This is the clear
ASSAULT. According to the Supreme Court, it would be State policy expressly legislated in Section 266-A of the
so weird if what has been inserted is an instrument or Revised Penal Code (RPC), as amended by Republic Act
object, it would be rape by sexual assault, but if it (R.A.) No. 8353 or the Anti-Rape Law of 1997.
was finger, it would be rape by acts of
lasciviousness. The finger is within the meaning of an Contentions of the accused:
instrument or object insofar as rape by sexual assault is
1. Irrevocable implied consent theory
concerned.
2. The case should be viewed and treated
Ricalde v. People differently from ordinary rape cases and that
the standards for determining the presence of
XXX, a 10-year old boy, requested his mother to pick up consent or lack thereof must be adjusted on the
Richard (Ricalde), 31 years old, from MacDonald’s Bel- ground that sexual community is a mutual
Air Sta.Rosa. Richard was a distant relative and right and obligation between husband and
textmate of XXX. Because it was late, XXX’s mother wife.
told Richard to spend the night at their house. Richard
slept in the sofa, while XXX slept on the living room Supreme court: the contentions fail.
floor. Around 2:00 a.m., XXX woke to pain in his anus
1. The ancient customs and ideologies from
and stomach and something inserted in his anus. He
which the irrevocable implied consent theory
also saw Richard fondling his penis. When Richard
evolved have already been superseded by
returned to the sofa, XXX ran to her mother and told
modem global principles on the equality of
her what happened. The mother armed herself with a
rights between men and women and respect
knife for self-defense and confronted Richard, who
for human dignity established in various
remained silent. She then asked him to leave. The
international conventions, such as the
mother reported the incident to the barangay, which
CEDAW. It is now acknowledged that rape, as
then referred them to the police. Upon medical
a form of sexual violence, exists within
examination, the doctor found no signs of recent trauma
marriage. A man who penetrates her wife
or presence of spermatozoa in his anus. A criminal
without her consent or against her will
complaint was filed against Richard for rape through
commits sexual violence upon her, and the
sexual assault.
Philippines, as a State Party to the CEDA W
Supreme Court said that this is rape by sexual assault in and its accompanying Declaration, defines and
relation to RA 7610. It is important to state that such penalizes the act as rape under R.A. No. 8353.
assault is in relation to RA 7610 because the penalty for A woman is no longer the chattel-antiquated
Rape by sexual assault under Article 266-B is only practices labeled her to be. A husband who has
prision mayor which is a bailable offense but under RA sexual intercourse with his wife is not merely
7610 Section 5 (d), the law provides that in case of acts using a property, he is fulfilling a marital
of lasciviousness, if the victim is a child under 12 years consortium with a fellow human being with
of age, the penalty is reclusion temporal in its medium dignity equal to that he accords himself. He
period so it is important to increase the imposable cannot be permitted to violate this dignity by
penalty. coercing her to engage in a sexual act without
her full and free consent. Surely, the
III. MARITAL RAPE

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Philippines cannot renege on its international husband who vowed to be her refuge from cruelty. The
commitments and accommodate conservative herein pronouncement is an affirmation to wives that
yet irrational notions on marital activities that our rape laws provide the atonement they seek from
have lost their relevance in a progressive their sexually coercive husbands.
society.
Husbands are once again reminded that marriage is not
2. to treat marital rape cases differently from
a license to forcibly rape their wives. A husband does not
non-marital rape cases in terms of the
own his wife's body by reason of marriage. By marrying,
elements that constitute the crime and in the
she does not divest herself of the human right to an
rules for their proof, infringes on the equal
exclusive autonomy over her own body and thus, she
protection clause. The Constitutional right to
can lawfully opt to give or withhold her consent to
equal protection of the laws ordains that
marital coitus. A husband aggrieved by his wife's
similar subjects should not be treated
unremitting refusal to engage in sexual intercourse
differently, so as to give undue favor to some
cannot resort to felonious force or coercion to make her
and unjustly discriminate against others; no
yield. He can seek succor before the Family Courts that
person or class of persons shall be denied the
can determine whether her refusal constitutes
same protection of laws, which is enjoyed, by
psychological incapacity justifying an annulment of the
other persons or other classes in like
marriage.
circumstances. As above discussed, the
definition of rape in Section 1 of R.A. No. 8353 Sexual intimacy is an integral part of marriage because
pertains to: (a) rape, as traditionally known; it is the spiritual and biological communion that
(b) sexual assault; and (c) marital rape or that achieves the marital purpose of procreation. It entails
where the victim is the perpetrator's own mutual love and self-giving and as such it contemplates
spouse. The single definition for all three only mutual sexual cooperation and never sexual
forms of the crime shows that the law does not coercion or imposition.
distinguish between rape committed in
The Court affirms the penalty of reclusion perpetua, for
wedlock and those committed without a
each count of rape, meted upon the accused-appellant
marriage. Hence, the law affords protection to
for being in accord with Article 266-A in relation to 266-
women raped by their husband and those
B of the RPC. Further, he shall not be eligible for parole
raped by any other man alike. The posture
pursuant to Section 3 of R.A. No. 9346, which states that
advanced by the accused-appellant arbitrarily
"persons convicted of offenses punished with reclusion
discriminates against married rape victims
perpetua, or whose sentences will be reduced to
over unmarried rape victims because it
reclusion perpetua, by reason of this Act, shall not be
withholds from married women raped by their
eligible for parole under Act No. 4180, otherwise known
husbands the penal redress equally granted by
as the Indeterminate Sentence Law, as amended.
law to all rape victims. Further, the Court
adheres to and hereby adopts the rationale in ART 266-B - PENALTIES
Liberta in rejecting the argument akin to those
In case of RAPE BY SEXUAL ASSAULT, the penalty is
raised by herein accused-appellant. A
only PRISION MAYOR. It is a bailable offense.
marriage license should not be viewed as a
license for a husband to forcibly rape his wife If it is a RAPE BY CARNAL KNOWLEDGE, note that the
with impunity. A married woman has the same penalty is RECLUSION PERPETUA. It is a non-bailable
right to control her own body, as does an offense
unmarried woman. She can give or withhold
QUALIFIED RAPE BY CARNAL KNOWLEDGE:
her consent to a sexual intercourse with her
husband and he cannot unlawfully wrestle Reclusion Perpetua to Death:
such consent from her in case she refuses.
1. When rape is committed with the use of a deadly
Rape is a crime that evokes global condemnation weapon
because it is an abhorrence to a woman's value and 2. When rape is committed by two or more persons
dignity as a human being. It respects no time, place, age, 3. When by reason or on occasion of rape, the victim
physical condition or social status. It can happen becomes insane
anywhere and it can happen to anyone. Even, as shown 4. When rape is attempted and homicide is
in the present case, to a wife, inside her time-honored committed
fortress, the family home, committed against her by her

129 |
Penalty to be imposed is the capital punishment of dementia is only simple rape. But if in the information,
death, so the extreme penalty of death it was alleged that the offender knew of the mental
disorder and the same was proven during trial, it is
1. When by reason or on the occasion of rape,
considered as qualified rape which has the penalty of
homicide is committed
death.
2. When the victim is under 18 years of age and the
offender is a parent, ascendant, step-parent, ■ It is knowledge on the part of the accused of the
guardian, relative by consanguinity or affinity mental retardation of the victim and the allegation of
within the 3rd civil degree, or the common-law the same in the information and proof of such
spouse of the victim knowledge will make the crime qualified rape.
3. When the victim is under the custody of the police
or military authorities or any penal institution
4. When the rape is committed in full view of the
spouse, the parent, any of the children of the
SPECIAL COMPLEX CRIME IN RAPE:
relative by consanguinity within the 3rd civil degree
5. When the victim is a religious and gauged in 1. When rape is attempted and a homicide is
legitimate religious calling or vocation and he committed by reason or on the occasion thereof
known to be such by the offender before or during (attempted rape with homicide).
the commission of the rape 2. When by reason or on the occasion of rape,
6. When the victim of the rape is below 7 years of age homicide is committed (rape with homicide).
7. When the said offender knows that he has been
People v. Laoag and People v. Villaflores
afflicted with HIV virus or AIDS or any other
sexually transmissible disease and the virus of the “by reason or on the occasion of rape homicide
disease is transmitted to the victim is committed”
8. When the said offender is a member of the AFP or
By reason of rape, homicide is committed – the
parliamentary units, the PNP or any other member
criminal intent of the offender is to rape the victim and
of the law enforcement agency who took advantage
in order to consummate the crime, he has to kill the very
of his position in order to facilitate the commission
victim of the rape therefore, the victim of the rape is the
of the crime
victim of homicide.
9. By reason or on the occasion of rape, the said victim
suffered permanent physical mutilation or On the occasion of rape, homicide is committed
disability – the original criminal intent is to rape the victim but in
10. When the offender knew that the offended party or the course of having carnal knowledge of the victim, the
victim is pregnant at the time of the commission of accused had to kill someone. The killing of the victim
rape need not be the victim of the rape. The victim of the
11. When the offender knew of the mental disability, killing may be any person so long as the homicide took
emotional disorder and/or physical handicap of the place on the occasion of rape.
offended party at the time of the commission of the
People v. Laoag
crime
There were two ladies, A and B, walking along the rice
Q: W, 19 years old but has only a mental capacity of a 7-year-
field where they were met by Laog and dragged them
old child. She roams around the street, dirty. M saw her and
behind a building. When Laog tried to undress A, B
had carnal knowledge with her. M was charged of simple
shouted. B was stabbed by Laog several times, hit her
rape. Is he liable as charged?
with a lead pipe, and then covered her with grass.
A: Yes. This is because has carnal knowledge of a Thereafter he raped A, and hit her with a lead pipe and
woman who is deprived of reason. A person who is a covered her with grass. Laog was prosecuted for Murder
mental retardate is one who is deprived of reason. and Rape. The RTC and CA convicted him for rape and
murder.
Q: What if in the information, it was alleged that the man
knew that the woman was a mental retardate at the time of The Supreme Court said that since it is a special
the commission of the crime? The same was proven during complex crime of Rape with Homicide, it is immaterial
trial. What crime is committed? whether the victim of rape is different than the victim of
the killing. For as long as the killing took place by reason
A: Qualified rape. Rape of a mental retardate, one
or on the occasion of the said rape, even if the victims
who is deprived of reason, one who is suffering from
are different, it is still a special complex crime of Rape

130 |
with Homicide wherein the penalty is the maximum B often see each other, B missed A. And so she visited the
penalty of Death. accused in the prison cell. They fell in love and got married.
What is the effect of such valid marriage on the penalty
■ Since Rape with Homicide is a special complex crime,
already imposed by the court?
regardless of the number of times the victim is raped.
Regardless of the fact that the victim of rape is different A: Such penalty will be extinguished. A valid
from the person who was killed, the crime committed is marriage can extinguish a penalty already
a single indivisible offense, a composite crime, a special imposed by the court.
complex crime of rape with homicide. The same is true
Q: What if A and B are husband and wife. A, the husband
with Attempted Rape with Homicide. In Attempted
raped B, the wife. B filed a case against the husband. During
Rape with Homicide, regardless of the fact that the
trial on the merits, A asked for B’s forgiveness. B pardoned
victim of the attempted rape is different from the victim
A. What is the effect of the pardon granted by B to A?
of homicide, since it is a special complex crime, we have
attempted rape with homicide. A: In case of marital rape, pardon granted by
wife to the husband will extinguish the criminal
liability.
ART 266-C – EFFECT OF PARDON
Q: What if the husband has already been convicted by final
In case of rape, PARDON will not extinguish the criminal judgment and is already serving his sentence behind bars
liability of the offender. According to Art. 266, pardon will then suddenly, the wife decided to pardon the husband.
not extinguish the criminal liability of the offender. It is only What is the effect of such pardon?
through:
A: Such pardon by the wife will also extinguish
1. The offended woman may pardon the offender the penalty already imposed by the court.
through a subsequent valid marriage, the effect of
ART 266-D – PRESUMPTIONS
which would be the extinction of the offender’s
liability ⮚ Any form of resistance will be considered as a
2. The legal husband maybe pardoned by forgiveness struggle in the crime of rape.
of the wife provided that the marriage is not void ab
initio [Justice Peralta: Before RA 8353, the said accused can be
convicted of Rape, it is necessary that the woman must prove
EXCEPTION: In case of MARITAL RAPE. If the legal that she struggled, “Tama na, tama na, tama na.” but now,
wife has forgiven or pardoned the legal husband. no more.]
Q: A raped B. B filed a case against A. While the case is A and B are lovers. A was trying to have sexual congress to
ongoing trial, A asked for B’s forgiveness. B pardoned A. B. Initially, B consented but before the act, B said “stop”. The
What is the effect of such pardon? man did not stop. A is liable of rape because any form of
resistance or when a woman is in such a situation that she
A: The pardon has no effect at all on the criminal
cannot give a valid consent, it is already considered as a form
liability of A. Pardon by the offended party does not
of struggle in the crime of rape and therefore the offender
extinguish the criminal liability of the offender in the
can be held liable for rape.
crime of rape.
Q: When is there PRESUMPTION OF RESISTANCE?
Q: A raped B. B filed a case against A. During trial on the
merits, they often see each other and they fell in love and A: If in the course of the commission of rape, the said
decided to get married. What is the effect of such valid offended party has performed any acts in any degree
marriage on the criminal liability of the offender? amounting to resistance of rape or when the said
offended party cannot give a valid consent.
A: The valid marriage will extinguish the
criminal liability of the offender.
A: The valid marriage will extinguish the
criminal liability of the offender. VIOLENCE AGAINST WOMEN AND THEIR
CHILDREN ACT (VAWC) – R.A. 9262
Q: A raped B. B filed a case against A. During trial on the
merits, they often see each other. However, marriage did not Violence against women and their children
take place. The offender was convicted by the court. The ⮚ refers to any act or a series of acts committed by any
judgment became final and executory. The accused is person against a woman who is his wife, former wife,
already serving his sentence in Muntinlupa. Since the A and or against a woman with whom the person has or had

131 |
a sexual or dating relationship, or with whom he has serious and moral grounds as defined in Article 73
a common child, or against her child whether of the Family Code;
legitimate or illegitimate, within or without the family
2. deprivation or threat of deprivation of financial
abode, which result in or is likely to result in physical,
resources and the right to the use and enjoyment of
sexual, psychological harm or suffering, or economic
the conjugal, community or property owned in
abuse including threats of such acts, battery, assault,
common;
coercion, harassment or arbitrary deprivation of
liberty. 3. destroying household property;
Acts consisting violence against women and 4. controlling the victims' own money or properties
children: or solely controlling the conjugal money or
properties.
A. "Physical Violence" refers to acts that include bodily
or physical harm; Acts of Violence Against Women and Their Children - The
crime of violence against women and their children is
B. "Sexual violence" refers to an act which is sexual in
committed through any of the following acts:
nature, committed against a woman or her child. It includes,
but is not limited to: (a) Causing physical harm to the woman or her child;
a) rape, sexual harassment, acts of lasciviousness, (b) Threatening to cause the woman or her child
treating a woman or her child as a sex object, physical harm;
making demeaning and sexually suggestive
(c) Attempting to cause the woman or her child physical
remarks, physically attacking the sexual parts of the
harm;
victim's body, forcing her/him to watch obscene
publications and indecent shows or forcing the (d) Placing the woman or her child in fear of imminent
woman or her child to do indecent acts and/or physical harm;
make films thereof, forcing the wife and
(e) Attempting to compel or compelling the woman or
mistress/lover to live in the conjugal home or sleep
her child to engage in conduct which the woman or her
together in the same room with the abuser;
child has the right to desist from or desist from conduct
b) acts causing or attempting to cause the victim to which the woman or her child has the right to engage in,
engage in any sexual activity by force, threat of or attempting to restrict or restricting the woman's or
force, physical or other harm or threat of physical her child's freedom of movement or conduct by force or
or other harm or coercion; threat of force, physical or other harm or threat of
physical or other harm, or intimidation directed against
c) Prostituting the woman or child.
the woman or child. This shall include, but not limited
C. "Psychological violence" refers to acts or omissions to, the following acts committed with the purpose or
causing or likely to cause mental or emotional suffering of effect of controlling or restricting the woman's or her
the victim such as but not limited to intimidation, child's movement or conduct:
harassment, stalking, damage to property, public ridicule or
(1) Threatening to deprive or actually depriving the
humiliation, repeated verbal abuse and mental infidelity. It
woman or her child of custody to her/his family;
includes causing or allowing the victim to witness the
physical, sexual or psychological abuse of a member of the (2) Depriving or threatening to deprive the woman
family to which the victim belongs, or to witness or her children of financial support legally due her
pornography in any form or to witness abusive injury to pets or her family, or deliberately providing the
or to unlawful or unwanted deprivation of the right to woman's children insufficient financial support;
custody and/or visitation of common children.
(3) Depriving or threatening to deprive the woman
D. "Economic abuse" refers to acts that make or attempt or her child of a legal right;
to make a woman financially dependent which includes, but
(4) Preventing the woman in engaging in any
is not limited to the following:
legitimate profession, occupation, business or
1. withdrawal of financial support or preventing the activity or controlling the victim's own mon4ey or
victim from engaging in any legitimate profession, properties, or solely controlling the conjugal or
occupation, business or activity, except in cases common money, or properties;
wherein the other spouse/partner objects on valid,

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(f) Inflicting or threatening to inflict physical harm on Philippines. According to petitioner, respondent
oneself for the purpose of controlling her actions or made a promise to provide monthly support to their
decisions; son. However, since the arrival of petitioner and her son
in the Philippines, respondent never gave support to the
(g) Causing or attempting to cause the woman or her
son, Roderigo. respondent came to the Philippines and
child to engage in any sexual activity which does not
remarried in Cebu City, and since then, have been
constitute rape, by force or threat of force, physical
residing thereat. Petitioner, through her counsel, sent a
harm, or through intimidation directed against the
letter demanding for support from respondent.
woman or her child or her/his immediate family;
However, respondent refused to receive the letter.
(h) Engaging in purposeful, knowing, or reckless
Because of the foregoing circumstances, petitioner filed
conduct, personally or through another, that alarms or
a complaint affidavit with the Provincial Prosecutor of
causes substantial emotional or psychological distress
Cebu City against respondent for violation of Section
to the woman or her child. This shall include, but not be
5, paragraph E(2) of R.A. No. 9262 for the latter’s unjust
limited to, the following acts:
refusal to support his minor child with petitioner.
(1) Stalking or following the woman or her child in
Arguments of Van Wilsem:
public or private places;
1. He is a Holland citizen and there is no law in
(2) Peering in the window or lingering outside the
Holland obligating him to give support
residence of the woman or her child;
2. He is a foreigner and as such, not bound under
(3) Entering or remaining in the dwelling or on the RA 9262
property of the woman or her child against her/his 3. The crime has already prescribed
will;
Supreme Court:
(4) Destroying the property and personal
1. Under the Doctrine of Processual
belongings or inflicting harm to animals or pets of
Presumption, although there was allegation of
the woman or her child; and
the Holland Law, he was not able to prove the
(5) Engaging in any form of harassment or same and as such, it is as if the Holland Law is
violence; the same as the Philippine law, hence he is
bound under RA 9262.
(i) Causing mental or emotional anguish, public ridicule
2. Under the Generality Characteristic of the
or humiliation to the woman or her child, including, but
criminal law, although he is a foreigner, he is
not limited to, repeated verbal and emotional abuse,
residing in the Philippines and the crime being
and denial of financial support or custody of minor
committed in the Philippines, he is liable
children of access to the woman's child/children.
under RA 9262.
DATING RELATIONSHIP- refers to a situation wherein 3. The act of unjustified failure to give support to
the parties live as husband and wife without the benefit of his child is a continuing offense and as such it
marriage or are romantically involved over time and on a has no prescriptive period.
continuing basis during the course of the relationship. A
SECTION 25 – PUBLIC CRIME
casual acquaintance or ordinary socialization between two
individuals in a business or social context is not a dating Q: A and B are husband and wife. The husband has been
relationship. beating the wife for years. The wife was only tolerating the
beatings so as not to break the marriage until one time, the
SECTION 24 – PRESCRIPTIVE PERIOD
husband inflicted injuries to the wife. B suffered serious
If it involves physical abuse; it shall prescribe after physical injuries and became unconscious. She was brought
20 years. to the hospital. The neighbor who saw the incident took pity
If it involves psychological, sexual, and economical of the wife and filed a case of Violence against Women and
abuse; it shall prescribe in 10 years. their Children against the husband. Will the case prosper
although it was filed by a mere neighbor?
Del Socorro v. Van Wilsem
A: Yes, the case will prosper. This is because under
Petitioner Norma and respondent Ernst Johan Section 25, RA 9262 is a public crime. Since it is a public
contracted marriage in Holland. They had a son. crime and not a private crime, it can be brought to court
However, their marriage was terminated by divorce. by any competent person or citizen who has personal
Thereafter, petitioner and her son came home to the knowledge of the facts and circumstances relative to the

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crime. It is not necessary that she is not the offended SECTION 27 – PROHIBITIVE DEFFENSE
party or the wife or the mistress who will file the case. It
Q: The case filed against the husband prospered. It is now
suffices that any person who has knowledge of the facts
on the trial of the merits and during trial, the husband
and circumstances relative to the said abuse/violence
invoked as part of his defenses that at the time he was
can file a case against the offender
beating the wife, he was under the influence of liquor or the
SECTION 26 – BATTERED WOMAN SYNDROME AS he is a drug addict, and so, according to him, he was not
A DEFENSE knowledgeable or aware of his acts. Can these be invoked as
defenses on the part of the husband?
⮚ Under Sec. 26, it is provided that victim survivors
founded to be suffering from this battered women A: No, they cannot be invoked as defenses. This
syndrome shall be exempted from both criminal and is because under Article 27 of RA 9262 expressly
civil liability notwithstanding the absence of any of provides that these are prohibited defenses. The fact
the elements of self-defense. that the offender was under the influence of a liquor or
⮚ The court however shall be held by a testimony of a any illicit drugs or any other mind-altering substances
psychologist or psychiatrist if the woman is indeed are considered prohibitive defenses therefore the man
suffering from the so called battered women is prohibited to invoke these defenses.
syndrome.
Q: What if the husband has been repeatedly beating his wife. ANTI-HAZING LAW – R.A. 8049
One time, he arrived home and did not beat the wife and Hazing is an initiation rite or practice which is used as an
instead, went directly to the bedroom and slept. While he admission into membership in any fraternity or any other
was sleeping, the wife, who at the time was suffering from organization wherein the said recruit/neophyte/applicant is
Battered Woman Syndrome, took a knife and stabbed the placed under embarrassing or humiliating situations such as
husband to death. He covered the husband with the blanket forcing him to do menial, silly, and foolish tasks or services
and went out of the house with their children. Later, or subjecting him into psychological or physical injury or
neighbors smelled a bad odor coming from the house and so crime.
they went inside the house and discovered the deceased body
of the husband. The wife was the suspect and was arrested. People v. Bayabos (2015)
She was prosecuted for the crime of parricide. If you are the The indictment merely states that psychological pain
counsel of the wife, what defense would you lay in order to and physical injuries were inflicted on the victim. There
exempt your client from criminal liability. is no allegation that the purported acts were employed
A: The defense of Battered Woman Syndrome. as a prerequisite for admission or entry into the
BWS is a scientifically defined pattern of psychological organization. Failure to aver this crucial ingredient
and behavioral symptoms found in women in battering would prevent the successful prosecution of the
relationship as a result of cumulative abuse; it is a criminal responsibility of the accused, either as
disease on the part of the woman. And under Section 26 principal or as accomplice, for the crime of hazing. Plain
of RA 9262, victim-survivors who are found by the court reference to a technical term – in this case, hazing – is
to be suffering from BWS do not incur criminal and civil insufficient and incomplete, as it is but a
liability notwithstanding the absence of any of the characterization of the acts allegedly committed and
elements of justifying circumstance of self-defense. thus a mere conclusion of law. Section 6, Rule 110 of the
BWS is akin to justifying circumstance. There is Rules of Court, expressly states that the information
no criminal and civil liability. It is not an exempting must include, inter alia, both “the designation of the
circumstance because in exempting circumstance, you offense given by the statute” and “the acts or omissions
do not incur any criminal liability but there is civil complained of as constituting the offense.” The Special
liability. Prosecutor’s belated argument38 in his Petition before
this Court that the successful completion of the
To prove the fact that a woman is suffering indoctrination and orientation program was used as a
from BWS, it is necessary that the prosecution prerequisite for continued admission to the academy
must present expert witness (psychiatrist or – i.e., attainment of active midshipman status – does
psychologist) because courts/judges by themselves not cure this defect in the Information. Thus, the
cannot determine if indeed the woman was Information must be quashed, as the ultimate facts it
suffering from BWS. There must be expert presents do not constitute the crime of accomplice to
testimony coming from the psychiatrist or hazing.
psychologist.
Q: Is hazing totally prohibited in the Philippines?

134 |
A: No. Hazing is not totally prohibited in the Q: When is there a prima facie evidence of participation?
Philippines. Hazing is allowed provided that the
A: Any person who is present in the said hazing or
following requisites are present:
initiation rite shall constitute a prima facie evidence
1. There must be a prior written notice sent to the that there is a participation and shall be held liable as
head of the school authorities or the head of principal.
the organization 7 days before the said
Q: What if in the said hazing an officer beat an applicant and
initiation rites and this prior written notice
he hit the neck thereby causing the death of the said
shall contain the following:
neophyte/recruit/applicant and so when prosecuted he said:
a. It shall indicate the date of the said
“I have no intention to commit so grave a wrong as that
initiation rites which shall not be more
committed”. Can such defense be used so as to mitigate his
than 3 days.
criminal liability?
b. It shall indicate/state the names of the
neophytes or applicants who will A: No such defense is prohibited defense. Under RA
undergo the said hazing or initiation 8049; the defense that such person has no intention to
rites. commit so grave a wrong as that committed cannot be
c. It shall contain an undertaking which used by an accused under RA 8049.
states that there shall be no physical
violence employed in any form on these ⮚ Whenever a person hits an applicant/neophyte,
neophyte recruits or applicants. he is already performing a felonious act
2. Upon the receipt of such prior written notice; therefore he shall be held criminally liable for all
the head of the school or organization shall the consequences of his actions. (Art 4 book 1)
assign atleast 2 representatives from their ⮚ In the case of Lenny Villa Hazing; Sereno et. al.
school or organization who must be present considered Art. 4 wherein they ruled Reckless
during the time of the said initiation rite or Imprudence resulting to homicide.
hazing and these 2 representatives shall see to o (I disagree) In Reckless imprudence,
it that no amount of physical violence shall be the said person must be performing an
employed on any person or any neophyte or act which is not felonious but by reason
recruit or applicant during the said hazing or of negligence or imprudence, a felony
initiation rites. resulted. Therefore, in the case of Lenny
Villa, the ruling shall be homicide, it
Q: What if in the course of the said hazing or initiation rite shall not be reckless imprudence.
someone died or suffered physical injuries; who shall be held
criminally liable? ANTI- CHILD ABUSE ACT (R.A. 7610)
A: If in the course of hazing or initiation rite, someone SECTION 3 –
died or some suffered any physical injuries; all of the CHILDREN – SUBJECTS OF RA 7610 ARE
officers and members of the said fraternity or CHILDREN WHO ARE:
organization who are present and who participated in
the said initiation rite shall be liable as principal. 1. Below 18 years of age
Q: What if the said initiation rite was conducted or held in a 2. Above 18 years of age who do not have the capacity to
house of an Aling Nene? Is Aling Nene criminally liable? fully protect themselves against any abuse, neglect,
cruelty or maltreatment because of their physical or
A: Aling Nene is liable as an accomplice if she has mental disability or foundation
knowledge of the conduct of the said initiation rites and
she did not do any act in order to prevent its occurrence. So even if the offended party is 21 years of age but he is
physically handicapped or he has a mental disability, RA
⮚ If the said initiation rite took place in the house of 7610 will apply to the offended party
a member or an officer of the said fraternity or
sorority; the parents of the said members or CHILD ABUSE – Child abuse refers to the
officers shall be held liable not as an accomplice maltreatment, whether habitual or not, of the child which
but as a principal if they have such knowledge of includes any of the following:
the said conduct of the initiation rites and they did ▪ Physical or psychological abuse, neglect,
not perform any act inorder to prevent its cruelty, sexual abuse and emotional
occurrence. maltreatment;

135 |
▪ Any act by deeds or words which debases, of remorse, the accused-appellant further held the boy
degrades or demean the intrinsic worth and up by his ears and pushed him down on the floor." On
dignity of a child as a human being. her part, the trial judge said that the physical pain
experienced by the victim had been aggravated by an
▪ Unreasonable deprivation of his basic needs
emotional trauma that caused him to stop going to
for survival, such as food and shelter; or
school altogether out of fear of the petitioner,
▪ Failure to immediately give medical treatment compelling his parents to transfer him to another school
to an injured child resulting in serious where he had to adjust again. Such established
impairment of his growth and development or circumstances proved beyond reasonable doubt that the
in his permanent incapacity or death. petitioner was guilty of child abuse by deeds that
degraded and demeaned the intrinsic worth and dignity
Q: What if two children, A and B were fighting over a gun
of Michael Ryan as a human being.
toy. The mother of A saw B beating A so A’s mother held B
and gave him a tender slap. However, because B is still a Araneta v. People
child, his face became reddish. Based in the medical
The provision (Section (10) a) punishes not only those
certificate, it showed that the said act of slapping was the
enumerated under Article 59 of Presidential Decree No.
cause of the injury sustained by B that made his face reddish
603, but also four distinct acts, i.e., (a) child abuse, (b)
that will heal within the period of one hour. What crime was
child cruelty, (c) child exploitation and (d) being
committed by the mother of A? Is the mother liable for Child
responsible for conditions prejudicial to the child’s
abuse or is the mother liable for slight physical injuries?
development. The Rules and Regulations of the
A: The mother of A is liable for slight physical questioned statute distinctly and separately defined
injuries only and not for violation of RA 7610. It child abuse, cruelty and exploitation just to show that
happened at the spur of the moment and cannot be said these three acts are different from one another and from
that the mother had the intention to debase, degrade, or the act prejudicial to the child’s development. Contrary
demean the intrinsic worth of the child as a human to petitioner’s assertion, an accused can be prosecuted
being. and be convicted under Section 10(a), Article VI of
Republic Act No. 7610 if he commits any of the four acts
Bongalon v. People
therein. The prosecution need not prove that the acts of
Not all acts committed against a child will result to child child abuse, child cruelty and child exploitation have
abuse, a violation of RA 7619. It is necessary that in the resulted in the prejudice of the child because an act
said act, there was this intention to debase, degrade or prejudicial to the development of the child is different
demean the intrinsic worth of a child as a human being. from the former acts.
Rosaldes v. People Sanchez v. People
The petitioner contends that she did not deliberately Appellant contends that, after proof, the act should not
inflict the physical injuries suffered by Michael Ryan to be considered as child abuse but merely as slight
maltreat or malign him in a manner that would debase, physical injuries defined and punishable under Article
demean or degrade his dignity. She characterizes her 266 of the Revised Penal Code. Appellant conveniently
maltreatment as an act of discipline that she as a school forgets that when the incident happened, VVV was a
teacher could reasonably do towards the development child entitled to the protection extended by R.A. No.
of the child. She insists that her act further came under 7610, as mandated by the Constitution. As defined in
the doctrine of in loco parentis. the law, child abuse includes physical abuse of the child,
whether the same is habitual or not. The act of appellant
In the crime charged against the petitioner, therefore, falls squarely within this definition. We, therefore,
the maltreatment may consist of an act by deeds or by cannot accept appellant’s contention.
words that debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being. The act SECTION 5 – CHILD PROSTITUTION AND OTHER
need not be habitual. The CA concluded that the SEXUAL ABUSE
petitioner "went overboard in disciplining Michael
CHILDREN DEEMED TO BE EXPLOITED IN
Ryan, a helpless and weak 7-year old boy, when she
PROSTITUTION AND OTHER SEXUAL ABUSE
pinched hard Michael Ryan on the left thigh and when
she held him in the armpits and threw him on the floor ⮚ Children, whether male or female, who for money,
and as the boy fell down, his body hit the desk causing profit, or any other consideration or due to the
him to lose consciousness but instead of feeling a sense coercion or influence of any adult, syndicate or

136 |
group, indulge in sexual intercourse or lascivious presented before the Supreme Court was whether or not
conduct. Christian may be convicted for violation of Republic Act
7610. He argues that his promise to marry and use of the
PERSONS LIABLE:
withdrawal method are not inducement or persuasion
a. Those who engage in or promote, facilitate or as to make the case within the purview of the offense.
induce child prostitution The phrase “due to the coercion or influence of any
adult” is the relevant phrase for interpretation.
b. Those who commit any act of sexual intercourse
According to him, it must be accompanied by some form
or lascivious conduct with child exploited in
of coercion or intimidation to constitute child abuse.
prostitution or subject to other sexual abuse.
The Supreme Court:
c. Any person who shall derive any profit or
advantage therefrom, whether as manager or “Section 5(b), Article III of RA 7610 pertinently reads:
owner of the establishment where the prostitution
SEC. 5. Child Prostitution and Other Sexual Abuse. –
takes place.
Children, whether male or female, who for money,
Jojit Garingaro v. People profit, or any other consideration or due to the coercion
or influence of any adult, syndicate or group, indulge in
In this case, a 16-year old girl was brought to a hospital
sexual intercourse or lascivious conduct, are deemed to
due to abdominal pain. She was advised to stay to be
be children exploited in prostitution and other sexual
observed. When her parents left her alone, Garingaro,
abuse.
the nurse, entered the room and examined her. The girl
hesitated, however, Garingaro insisted and lifted her The penalty of reclusion temporal in its medium period
blouse and touched her breasts and thereafter left. After to reclusion perpetua shall be imposed upon the
a few minutes, he returned with a stethoscope. He following: x x x x
placed it on her abdomen and suddenly lowered her
(b) Those who commit the act of sexual intercourse or
pajamas and inserted his finger in her genitalia. She
lascivious conduct with a child exploited in prostitution
crossed her legs to stop the nurse and told him that she
or subject to other sexual abuse; Provided, That when
just had her period. The nurse left the room after
the victim is under twelve (12) years of age, the
washing his hands. When her parents arrived, she asked
perpetrators shall be prosecuted under Article 335,
to leave the hospital and told her parents what
paragraph 3 for rape and Article 336 of Act No. 3815, as
happened upon arrival at their home. Garingaro was
amended, the Revised Penal Code, for rape or lascivious
charged with Acts of Lasciviousness in relation to RA
conduct, as the case may be; Provided, That the penalty
7610 (Anti-Child Abuse Act) He was convicted by the
for lascivious conduct when the victim is under twelve
lower court and CA which was affirmed by SC.
(12) years of age shall be reclusion temporal in its
Caballo v. People medium period x x x x (Emphasis and underscoring
supplied)
Christian, a dancer, met AAA, his choreographer’s
niece, in her uncle’s place. When she stayed in her As determined in the case of Olivarez v. CA (Olivarez),
uncle’s place, she and Christian became sweethearts. He the elements of the foregoing offense are the following:
succeeded in convincing her to have repeated sexual (a) The accused commits the act of sexual intercourse or
intercourse because of his promise to marry and an lascivious conduct; (b) The said act is performed with a
assurance that they will use the withdrawal method so child exploited in prostitution or subjected to other
she will not get pregnant. She, however, became sexual abuse; and (c) The child, whether male or female,
pregnant, and Christian, shocked with the development, is below 18 years of age.
proposed that she had an abortion. She acceded to the
In this case, the existence of the first and third elements
request but failed, hence a child was borne out of the
remains undisputed. Records disclose that Caballo had
relationship. When confronted by Christian’s mother,
succeeded in repeatedly having sexual intercourse with
he promised to marry AAA. The mother later filed a case
AAA who, during all those instances, was still a minor.
for violation of Section 10(a) of Republic Act 7610. In his
Thus, the only bone of contention lies in the presence of
defense, Christian contended that they were
the second element. On this note, the defense submits
sweethearts; AAA was not a virgin anymore when they
that AAA could not be considered as a “child exploited
had sexual intercourse; eventually they broke up
in prostitution and other sexual abuse” since the
because of the intervention of AAA’s mother. Christian
incidents to do not point to any form of “coercion” or
was convicted by the Regional Trial Court for violation
“influence” on Caballo’s part.”
of Section 10(a) of Republic Act 7610.The issue

137 |
In this relation, case law further clarifies that sexual committing lascivious conduct with a child who is
intercourse or lascivious conduct under the coercion or exploited in prostitution or subjected to sexual abuse
influence of any adult exists when there is some form of constitutes the offense. It is a malum prohibitum, an evil
compulsion equivalent to intimidation which subdues that is proscribed. A child cannot give consent to a
the free exercise of the offended party’s free will. contract under our civil laws. This is on the rationale
Corollary thereto, Section 2(g) of the Rules on Child that she can easily be the victim of fraud as she is not
Abuse Cases conveys that sexual abuse involves the capable of fully understanding or knowing the nature or
element of influence which manifests in a variety of import of her actions. The State, as parens patriae, is
forms. It is defined as: under the obligation to minimize the risk of harm to
those who, because of their minority, are as yet unable
The employment, use, persuasion, inducement,
to take care of themselves fully. Those of tender years
enticement or coercion of a child to engage in or assist
deserve its protection.
another person to engage in, sexual intercourse or
lascivious conduct or the molestation, prostitution, or The harm which results from a child’s bad decision in a
incest with children. sexual encounter may be infinitely more damaging to
her than a bad business deal. Thus, the law should
To note, the term “influence” means the “improper use
protect her from the harmful consequences of her
of power or trust in any way that deprives a person of
attempts at adult sexual behavior. For this reason, a
free will and substitutes another’s objective.”
child should not be deemed to have validly consented to
Meanwhile, “coercion” is the “improper use of x x x
adult sexual activity and to surrender herself in the act
power to compel another to submit to the wishes of one
of ultimate physical intimacy under a law which seeks to
who wields it.”
afford her special protection against abuse, exploitation
In view of the foregoing, the Court observes that and discrimination. (Otherwise, sexual predators like
Caballo’s actuations may be classified as “coercion” and petitioner will be justified, or even unwittingly tempted
“influence” within the purview of Section 5, Article III of by the law, to view her as fair game and vulnerable
RA 7610: prey.) In other words, a child is presumed by law to be
incapable of giving rational consent to any lascivious act
First, the most crucial element is AAA’s minority. It is
or sexual intercourse. x x x x (Emphasis and
undisputed that AAA was only 17 years old at the time
underscoring supplied; citations omitted)
of the commission of the crime and is hence, considered
a child under the law.31 In this respect, AAA was not Second, coupled with AAA’s minority is Caballo’s
capable of fully understanding or knowing the import of seniority. Records indicate that Caballo was 23 years old
her actions and in consequence, remained vulnerable to at the time of the commission of the offense and
the cajolery and deception of adults, as in this case. therefore, 6 years older than AAA, more or less. The age
disparity between an adult and a minor placed Caballo
Based on this premise, jurisprudence settles that
in a stronger position over AAA so as to enable him to
consent is immaterial in cases involving a violation of
force his will upon the latter.
Section 5, Article III of RA 7610; as such, the argument
that AAA and Caballo were sweethearts remains Third, Caballo’s actions effectively constitute overt acts
irrelevant. The Malto ruling is largely instructive on this of coercion and influence. Records reveal that Caballo
point: repeatedly assured AAA of his love for her, and even,
promised to marry her. In addition, he also guaranteed
For purposes of sexual intercourse and lascivious
that she would not get pregnant since he would be using
conduct in child abuse cases under RA 7610, the
the “withdrawal method” for safety. Irrefragably, these
sweetheart defense is unacceptable. A child exploited in
were meant to influence AAA to set aside her
prostitution or subjected to other sexual abuse cannot
reservations and eventually give into having sex with
validly give consent to sexual intercourse with another
him, with which he succeeded.
person.
Fourth, at least, with respect to the parties’ first sexual
The language of the law is clear: it seeks to punish
encounter, it is observed that the brash and unexpected
“[t]hose who commit the act of sexual intercourse or
manner in which Caballo pursued AAA to her room and
lascivious conduct with a child exploited in prostitution
pressed on her to have sex with him, effectively placed
or subjected to other sexual abuse.”
her in, to a certain extent, a position of duress.. An
Unlike rape, therefore, consent is immaterial in cases important factor is that AAA refused Caballo’s incipient
involving violation of Section 5, Article III of RA 7610. advances and in fact, asked him to leave. However, AAA
The mere act of having sexual intercourse or eventually yielded. Thus, it stands to reason that she

138 |
was put in a situation deprived bf the benefit of clear a. By using force or intimidation; or
thought and choice. In any case, the Court observes’ that
b. When the offended party is deprived of reason or
any other choice would, nonetheless, remain tarnished
otherwise unconscious; or
due to AAA ‘s minority as above-discussed.
c. By means of fraudulent machination or grave abuse of
Hence, considering that Caballo’s acts constitute
authority; and
“coercion” and “influence” within the context of the law,
and that AAA indulged in sexual intercourse and/or d. When the offended party is under 12 years of age.
lascivious conduct with Caballo due to the same, she is
(3) That the offended party is another person of either
deemed as a “child exploited in prostitution and other
sex.
sexual abuse”; as such, the second element of the subject
offense exists. In fine, finding all elements to be present, Notably, the parties already stipulated on AAA’s
the Court hereby sustains Caballo’s conviction for minority, that she was, at the time of the assault, under
violation of Section 5(b), Article III of RA 7610.” 12 years of age. The only issue in this case then concerns
the first element which is whether or not petitioner
Imbo v. People
committed acts of lasciviousness or lewdness against his
Nonito was charged with violation Acts of own daughter, AAA. The details of the testimony on the
Lasciviousness in relation to Section 5, Article III of act establish, even dramatize, the gross incest during the
Republic Act 7610. It appears that between the period night in question. The offended daughter narrated that
of October 14, 2003 to January 25, 2004, while the her lecherous father licked her vagina and mashed her
entire household was asleep and retired for the night, breasts. On more than one occasion, we have held that
AAA, Nonito’s 11 year-old daughter was awakened by the lone testimony of the offended party, if credible, is
her father committing acts of lasciviousness on her, by sufficient to establish the guilt of the accused.⁠ The fact
mashing her breasts and licking her vagina. Despite that no other member of their household corroborated
calls for help, CCC, her mother, did not wake up; her the testimony of AAA is not definitive of the commission
repeated calls for help prompted Nonito to leave. The of the crime. By its very nature, sexual abuse, in this
next day, she told her mother of what Nonito had done case, acts of lasciviousness by the petitioner against his
to her. In his defense, Nonito denied the charge, own daughter, is generally done out of sight of people
averring that he and CCC fought on the night of August and is only attested to by the victim and the perpetrator.
6, 2010, which impelled CCC to manufacture the charge On the other hand, the inconsistencies pointed out by
against him. The RTC however, believed the testimony petitioner do not discount at all the possibility of him
of AAA, and convicted Nonito as charged, sentencing sexually abusing his own daughter on the night in
him to suffer an indeterminate sentence of FOURTEEN question. As already pointed out in the past: Lust is no
(14) YEARS, EIGHT (8) MONTHS OF RECLUSION respecter of time and place⁠. In this case, both the trial
TEMPORAL AS MINIMUM TO SEVENTEEN (17) court and the Court of Appeals found the testimony of
YEARS, FOUR (4) MONTHS OF RECLUSION AAA credible over petitioner’s defense of denial and
TEMPORAL AS MAXIMUM in accordance with Section alibi. We subscribe to the settled rule that denial is a
5 of Republic Act No. 7610, otherwise known as the weak defense as against the positive identification by,
Special Protection of Children Against Child Abuse, and straightforward narration of the victim. Both denial
Exploitation and Discrimination. His appeal to the and alibi are inherently weak defenses and constitute
Court of Appeals denied, he went all the way to the self-serving negative evidence which cannot be
Supreme Court, assailing the credibility of the accorded greater evidentiary weight than the positive
testimony of AAA, as well as the imposition of the declaration by a credible witness.⁠
penalty provided for in Section 5 RA 7610 despite the
We also affirm both lower courts’ ruling on the
fact that the Information in the case did not indicated
application of Section 5, Article III of R.A. No. 7610 for
its applicability.
the imposable penalty on petitioner.
Under Article 336 of the RPC, the elements of the crime
Contrary to the contention of petitioner that the penalty
of Acts of Lasciviousness are:
in Section 5, Article III of R.A. No. 7610 is inapplicable
(1) That the offender commits any act of lasciviousness since there was no allegation relating thereto in the
or lewdness; Information, we find that the elements and act of sexual
abuse under R.A. No. 7610 were sufficiently alleged in
(2) That it is done under any of the following
the Information and duly proven during trial.
circumstances:

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The Information specifically stated that: (1) At the time Q: What if an old man, 75 years old, who is not related to the
of the incident, AAA was a minor; (2) Petitioner child who is a girl of seven years, were found in a room inside
committed a lascivious act against AAA by kissing her a motel and both of them were dressed. They were not doing
private parts and mashing her breasts; and (3) Corollary any act when the police came and rescued the girl. Can the
to paragraph 2, petitioner subjected AAA to sexual police file a case against the man?
abuse, debasing, degrading or demeaning the offended
A: Yes, the police can file a case against the old
party’s intrinsic worth and dignity as a human being.
man. The man can be prosecuted for attempt
That petitioner committed Acts of Lasciviousness commit child prostitution or exploitation. There
against AAA is bolstered by Section 32, Article XIII of is an attempt to commit child prostitution or
the Implementing Rules and Regulations of R.A. No. exploitation when any person who, not being a relative
7610 which defines lascivious conduct as follows: of a child, is found alone with the said child inside a
room or hotel or inn or any pension house, apartelle or
(T)he intentional touching, either directly or through
other similar establishments, or vessel, vehicle or any
clothing, of the genitalia, anus, groin, breast, inner
other hidden or secluded area under the circumstances
thigh, or buttocks, or the introduction of any object into
which would lead a reasonable person to believe that the
the genitalia, anus or mouth of any person, whether of
child is about to be exploited in prostitution and other
the same or opposite sex, with an intent to abuse,
sexual abuse.
humiliate, harass, degrade or arouse or gratify the
sexual desire of any person, bestiality, masturbation, In this case, they were found in a motel room; they were
lascivious exhibition of the genitals or pubic area of a not related to each other. Definitely, any reasonable
person. mind would believe that something happened to the
man and the child because why would a man bring a
It needs to be restated, too, that the mere act of
child seven years of age inside a motel room and not in
committing lascivious conduct with a child who is
any other place. Evidently, any reasonable mind would
exploited in prostitution or subjected to sexual abuse
believe that the child is being subjected to prostitution
constitutes the offense. It is a malum prohibitum, an
or exploitation.
evil that is proscribed and was duly alleged in the
Information against petitioner. Q: When the police raided a sauna bath, a lawyer was found
inside receiving services from a child. Can the lawyer be
Above all, it is quite clear by specific provision of Section
prosecuted of any crime?
5 Article III of R.A. No. 7610 that when the victim is
under 12 years of age, the perpetrators shall be A: Yes, he can be prosecuted under RA 7610 for
prosecuted under the RPC, but the penalty is that which attempt to commit child prostitution or child
is provided in R.A. No. 7610. Petitioner’s submission exploitation for receiving services. There is an
that he cannot be penalized under R.A. No. 7610 attempt to commit child prostitution when any person
because the Information failed to indicate its is found receiving services from a child in a sauna parlor
applicability, is, therefore, without merit. or bath, massage clinic, health club, and other similar
establishment.
SECTION 6 – ATTEMPT TO COMMIT CHILD
PROSTITUTION ■ Sabi ni ma’am, “You men must beware, if you go to
a health clubs or clinic, make sure that the person
a. There is an attempt to commit child prostitution or
giving massage or any other services is not a minor,
exploitation when any person who, not being a
otherwise you can be prosecuted. It is just a matter
relative of a child, is found alone with the said child
of defense that you are not aware that the said
inside a room or hotel or inn or any pension house,
person is a minor. But still, you can be prosecuted
apartelle or other similar establishments, or vessel,
and arrested because it is a mere attempt to commit
vehicle or any other hidden or secluded area under
child prostitution.” E pano pag babae? HAHAHA
the circumstances which would lead a reasonable
person to believe that the child is about to be SECTION 7 – CHILD TRAFFICKING
exploited in prostitution and other sexual abuse.
Child Trafficking – is committed by any person who shall
b. There is an attempt to commit child position when engage in trading and dealing with children including, but
any person is found receiving services from a child not limited to the act of buying and selling of a child for
in a sauna parlor or bath, massage clinic, health money, or for any other consideration, or barter.
club, and other similar establishment.
SECTION 8 – ATTEMPT TO COMMIT CHILD
TRAFFICKING

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ACTS CONSIDERED AS AN ATTEMPT TO COMMIT

CHILD TRAFFICKING:
1. When a child travels alone to a foreign country
without any valid reason or without any clearance from
DSWD or without any written permit or justification
from the child’s parents or guardian.
2. When a pregnant woman executes an affidavit of
consent for adoption for consideration
3. When a person, agency, establishment or child-
caring institution recruits women or couples to bear
children for the purpose of child trafficking
4. When a doctor, hospital or clinic official or employee,
nurse, midwife, local civil registrar or any other person
simulates birth for the purpose of child trafficking.
5. When a person engages in the act of finding children
among low income families, hospitals, clinics, nurseries,
day-care centers, or other child-caring institutions who
can be offered for the purpose of child trafficking.
Q: A pregnant woman was on her seventh month. She
executed an affidavit of consent for the adoption of her baby
in exchange for 500, 000 pesos. Can the said would-be
mother be held liable of any crime?
A: Yes, is liable for attempt to commit child
trafficking. The baby has not yet been brought into life
and yet, the mother is already executing an affidavit
allowing the adoption of the said baby. Obviously, the
intention of the mother is to sell the baby, to traffic the
baby and therefore she can be held liable for attempt to
commit child trafficking.
SECTION 12 – EMPLOYMENT OF CHILDREN
What if children under 15 years of age are allowed
to work?
⮚ As a rule, children under 15 years of age are not

allowed to work; they are prohibited from work.
How about what you see on TV? Before, there was
Santino. He was under 15 years of age. How come
he is allowed to work?
⮚ There are exceptions wherein children under 15

years of age are allowed to work.
1. If the work is under the services of members of
the family of the minor provided that the minor is
being brought to school or given education.
2. Those in entertainment, TV or radio, provided
that it is allowed by the DOLE and provided that
there is a contract which is agreed by the parents or
guardian by the child.

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TITLE NINE 1. The kidnapping or detention should have lasted for

more than 3 days;
CRIMES AGAINST PERSONSAL LIBERTY AND
SECURITY (ARTICLES 267 – 292) 2. If it is committed by simulating public authority.
ARTICLE 267 – KIDNAPPING AND SERIOUS ▪ By pretending to be police officers,
ILLEGAL DETENTION pretending to be NBI agents
ELEMENTS: 3. If any serious physical injuries are inflicted upon
the person kidnapped or detained or threats to kill
1. The offender is a private individual
him are made.
2. He kidnaps or detains another or in any other manner
to deprive him of his liberty 4. If the person kidnapped or detained is a minor
3. The kidnapping and detention is illegal; and (unless the offender is his parents); a female, or a
4. It is committed in any of the following circumstances: public officer.
a. If the kidnapping or detention should have
lasted for more than 3 days. ☝ The absence of any of the circumstance will make the
b. If it is committed simulating a public crime Slight Illegal Detention under Art 268.
authority. ☝ Note that the penalty is reclusion perpetua to death.
c. If threats to kill had been made upon the Circumstances which will qualify to death penalty:
person kidnapped or any serious physical
injuries are inflicted upon same. 1. If the purpose of the kidnapping is to extort ransom
d. If the person kidnapped or detained is a minor, from the victim or from any other person.
female, or a public officer. Kidnapping and Serious Illegal Detention for
☝ Any of the circumstances present, then we have serious Ransom
illegal detention.
RANSOM is the money, price, or any other consideration
Offender – He must be a private individual because if given or demanded for the redemption of the liberty of the
he is a public officer who has been vested by law to make person who has been detained or incarcerated.
arrest and he detains a person; it will be arbitrary detention
under Art 124. People v. Mamantak
Q: Can a public officer commit kidnapping and serious While the mother and the daughter where in a food
illegal detention? chain in tondo; the mother lost the said child. She had
been looking for the said child for a year. A year and six
A: Yes, if the said public officer has not been vested by months thereafter, the said mother received a call from
law with the authority to effect arrest and to detain a a woman who sounded to be a masculine man from
person then the said public officer is acting in his private Lanaodel Norte according to the said woman. The
capacity. Although a public officer; since he is acting in woman said that she has the child with her and the
his private capacity, the crime committed is kidnapping woman was demanding P 30,000 in exchange for the
and serious illegal detention under Art 267 and not child. The said woman, Mamantak and company asked
arbitrary detention under Art 124. the mother to go to a certain restaurant. The mother
Q: When is there detention? went to the said restaurant however the mother already
informed the authorities. Upon the exchange of the
A: There is detention if the offender restrains a person child and the demand; Mamantak and co. were arrested
or the liberty of another person. He must be detained, by the said authorities. The crime charged was:
incarcerated. There must be showing that there is a Kidnapping and Serious Illegal Detention for Ransom.
restraint on his person or liberty; otherwise, if there is
no restraint on the person or liberty on the part of the RTC ruled that it is only kidnapping and serious illegal
offended party, it could be any other crime but not detention but not for ransom because according to the
kidnapping and serious illegal detention. trial court; the amount given is measly a sum to be
considered as ransom because according to the RTC; it
⮚ The law requires that the kidnapping and detention is only in payment for the board and logging of the child
must be illegal therefore there must be no reasonable during the time that she was in the captivity of the said
ground. woman.
Circumstances which will make the crime serious: SC ruled that the crime committed is kidnapping and
serious illegal detention for ransom. Even if it is only 5

142 |
centavos; if it was given in exchange for the liberty of a A: The obvious intent of X is to detain Y in order to
person who has been detained, by whose liberty has extort money from the parents, therefore the crime
been restricted; it is already considered as ransom. committed is Kidnapping and Serious Illegal Detention
There is no such thing as small amount in so far with Ransom. But in the course of the said detention,
as ransom is concerned. the victim is killed, so we have the special complex crime
of Kidnapping and Serious Illegal Detention for
Q: Let’s say A is indebted to B; B was asking payment from
Ransom with Homicide.
A, A however said that he has no money until B got fed up so
what B did is he kidnapped and detained the minor child of Q: What if in the same problem; the father learned about the
A. He then called A telling the same: “I will only release your said kidnapping so the father informed the NBI agents. The
minor child the moment you give your indebtedness in the NBI agents were able to track down the place where the said
amount of a million pesos”. Is the crime committed child was being hidden so the NBI agents together with the
kidnapping and serious illegal detention for ransom? said father went to the hideout. There was an exchange of
gun fires between A (the kidnapper) and the NBI agents.
A: Yes, it is already kidnapping and serious illegal
While there was an exchange of gun fires, the father saw his
detention for ransom even if the amount being asked by
child so the father rushed towards the son, carry the son and
the kidnapper is the indebtedness of the father of the
they were able to leave the said hideout. While they were
said child. Any amount demanded in exchange for the
leaving, A the kidnapper saw them and A the kidnapper shot
liberty of the person detained; that is already considered
the father. What crime/s is/are committed?
as ransom.
A: In so far as the minor is concerned; the crime
2. When the victim is killed or dies as a consequence of the
committed is Kidnapping and serious illegal
kidnapping or detention.
detention even if it did not last for a period of more
Kidnapping and Serious Illegal Detention with than 3 days, the fact that the offended party is a minor,
Homicide. it is already kidnapping and serious illegal detention.
⮚ This is a special complex crime. Therefore, since it In so far as the father who has been killed; since he is
is a special complex crime; regardless of the number of not the victim of serious illegal detention, it will
victims killed; it is still kidnapping and serious illegal constitute a separate and distinct crime of homicide.
detention with homicide. Therefore, there are 2 crimes committed by the said
People v. Laranaga kidnapper. Kidnapping and serious illegal detention in
so far as the child is concerned and homicide in so far as
⮚ There were two kidnap victims and these two the father who has been killed is concerned.
sisters were both killed and raped yet the SC held
that the crime committed was kidnapping and Q: What if both the father and son were shot by A? What
serious illegal detention with homicide and rape. crime/crimes is/are committed?
A: Insofar as the child is concerned, the intent is to
⮚ Despite the fact that there were 2 victims who were
extort ransom, therefor the crime committed is
killed and raped because regardless of the numbers
Kidnapping and Serious Illegal Detention for Ransom
of the victims killed, since it is a special complex
but in the course thereof, he killed the child so the crime
crime; in the eyes of the law there is only one crime
is Kidnapping and Serious Illegal Detention for
committed so it is only: Kidnapping and Serious
Ransom with Homicide.
illegal detention with homicide.
As far as the father is concerned, the father is not the
☝ Note however that it is required that the victim himself
victim of the kidnapping, therefore, the killing of the
is the one who has been killed. If it is another person; it
father would constitute a separate and distinct charge of
will result to a separate and distinct crime because the
homicide.
law is particular that the person detained/ kidnapped
must be the one who is killed or died as a consequence Hence, A would be liable of two crimes – Kidnapping
thereof. and Serious Illegal Detention for Ransom with
Homicide and Homicide.
Q: X abducted Y to extort ransom from the parents of Y. X
brought Y to a secret place but when Y attempted to escape, QUESTION FROM QUIZ (1A ’19-’20)
X shot Y, the young boy and he died. What crime/crimes
committed by X? As Riza was waiting for a ride, Jun, on board his motorcycle
passed by, & grabbed Riza's 5-months old baby Josh from

143 |
her arms. Jun left a note that states: "P1M Bukas 8am victim herself or any other person for as long as the killing
Jollibee Quiapo kung gusto mo makita buhay anak mo" & took place on occasion of the rape, it is rape with homicide.
sped away. The victim of the homicide need not be the victim of the rape.
The incident was seen by Policemen Sy and Cruz. On board In case of kidnapping and serious illegal detention with
the police car, they chased Jun. When Jun saw them, he homicide or kidnapping and serious illegal detention with
threw Josh on the street. Sy & Cruz stopped their car, picked- rape, for this special complex crime to arise, the law requires
up Josh, brought him to the hospital but the child died due that the victim of the kidnapping must be the very victim of
to severe head injuries. the homicide, otherwise, it will give rise to a separate and
distinct charge. Because the law say if the victim is killed or
What crime/s is/are committed by Jun? Explain.
dies or if the victim is raped.
ANSWER:
KIDNAPPING AND FORCIBLE ABDUCTION
1. Jun committed the special complex crime of SERIOUS ILLEGAL WITH RAPE
Kidnapping and Serious Illegal Detention for DETENTION WITH
Ransom with Homicide. RAPE
Jun, a private individual, forcibly took baby Josh from Riza, Special Complex Crime Complex crime
thereby depriving him of liberty and sped away. Said
kidnapping is illegal and serious because the victim is a intent of offender, at the intent is with lewd design
minor. outset is to detain the
offended party
Art. 267 provides that the penalty shall be death where the
kidnapping was committed for purpose of extorting ransom if the said victim had been if there are many acts of
from the victim or any other person; or when the victim is raped for a number of times, rape, you only need one act
killed or dies as a consequence thereof. regardless of the number of of rape to complex with
times she had been raped, forcible abduction. The
In this case, Jun’s purpose of extorting ransom became the crime committed is only other acts of rape will
evident when he left a note asking for P1M from Riza in one single indivisible offense constitute separate and
exchange for Josh’s life and liberty. But Jun threw Josh on of KASIDWR – all acts of distinct charges
the street when chased by policemen. Since Josh died, the rape are absorbed
death occurred as a consequence of the kidnapping.
if rape is only attempted, it in case of forcible abduction,
In People v. Dionaldo, the SC said that where the person will constitute a separate if rape is only attempted, it is
kidnapped is killed in the course thereof, whether the killing and distinct charge – so absorbed in the crime of
was purposely sought or a mere afterthought, the serious illegal detention and forcible abduction
kidnapping and murder or homicide shall be punished as a attempted rape
special complex crime.
3. When the victim is raped.
People v. Mirandilla
Kidnapping and Serious Illegal Detention with
Rape The girl just went out to buy candies. When she was out,
a man, X, suddenly grabbed her and forcibly brought
⮚ It is necessary that the victim is the one who has her on a tricycle then to different places. In every place,
been raped. he would have carnal knowledge with the girl. This was
the 39-ordeal of the girl who had been raped for 27
⮚ Again; since this is a special complex crime;
times. The man is liable of only one crime –
regardless of the times that the victim has been
Kidnapping with Serious Illegal Detention
raped. The crime committed is only kidnapping
with Rape. All the 27 counts of rape done by X on the
and serious illegal detention with rape. There is no
woman, not only rape by carnal knowledge but also rape
kidnapping and serious illegal detention with
by sexual assault, are all considered as absorbed in the
multiple rape.
case of Kidnapping with Serious Illegal Detention with
DIFFERENT FROM RAPE WITH HOMICIDE AND Rape. Since this is a special complec crime, regardless
ATTEMPTED RAPE WITH HOMICIDE; HOW of how many times the victim was raped, we have only
the single indivisible offense of Kidnapping with Serious
In case of rape with homicide or attempted rape with
Illegal Detention with Rape.
homicide, even if the victim of the homicide is the rape

144 |
QUERY FROM CLASS: How to determine if the the house, she saw her child at the door with torn clothes and
accused has lewd design for him to be charged of the blood. So the man was charged with serious illegal detention
crime of forcible abduction with rape? with rape. Is the charge correct?
PROSEC’S SUGGESTED ANSWER: If you will A: The charge is wrong because the obvious intention of
compare People v. Mirandilla with People v. Cayanan the man is to rape the child and not to detain the child
and People v. Amaro (crimes Against Chastity), the therefore the SC said: the crime committed would be 2
answer to the query if how lewd design is identified – “it counts of statutory rape not only a single indivisible
depends on the SC’s appreciation of the evidence.” offense of kidnapping and serious illegal detention with
rape but 2 counts of statutory rape because the said
In Mirandilla case – abduction was obviously done with
child is under 12 years of age and she was raped and
lewd design and intent to rape so the 27 acts of rape
molested twice. Therefore, unless and until there was an
were all ABSORBED in the special complex crime.
intent to detain on the part of the offender; it could be
In Cayanan case – the 15-year-old girl was abducted any other crime but not kidnapping and serious illegal
near the school obviously with lewd design, yet SC said detention.
it is qualified rape because based on accused’s previous
Q: A saw his rival in business walking. He abducted his
act of rape, accused’s intent was to rape again the sister-
enemy and placed him inside the van to teach him a lesson.
in-law. SC said the abduction with lewd design was
The following morning, the said enemy was found in a vacant
merely incidental and is absorbed in rape if the real
lot with 10 gunshot wounds. What crime is committed?
intent is to rape the victim.
A: The crime committed is Murder. Obviously, there
In Amaro case – the obvious intent was to rape the 7-
was no intent to detain the offended party. The intent
year old child, yet the SC said it is forcible abduction
was to kill him. Therefore, the crime committed is
with rape.
murder and not kidnapping and serious illegal
Studying these 3 cases, SC’s decisions are confusing. detention with homicide or murder as the case may be.
These cases were included in the syllabus, for students
⮚ In order for kidnapping and serious illegal detention to
to compare the rulings.
amount to with rape, murder, with homicide with
For purposes of the BAR, and other exams, answer physical injuries; it is necessary that there is an intent to
based on the accused’s ORIGINAL CRIMINAL INTENT detain and in the course of the said detention, the victim
(according to the facts stated). If, however, the problem dies, raped, subjected to torture or other dehumanizing
has the very same facts as these 3 cases, answer acts.
according to the SC’s decision and cite the case as your
basis. ⮚ Again, as mentioned earlier; the absence of any of the
circumstances which will make illegal detention serious
4. When the victim is subjected to torture or any will make the crime Slight Illegal Detention under Art
dehumanizing acts. 268.
Kidnapping and Serious Illegal Detention with ARTICLE 268 – SLIGHT ILLEGAL DETENTION
Physical Injuries
ELEMENTS:
⮚ The presence of any of these circumstances will bring
1. The offender is a private individual
about the imposition of maximum penalty of death.
2. That he kidnaps or detains another or in any other
Q: A, a 6 yr old child is playing at a playground at about 5 manner deprived him of his liberty
o’clock in the afternoon while the mother is hanging clothes. 3. Kidnapping is not attended by any of the
A man (X) gave the child a candy and the child was so happy. circumstances in Article 267.
Later, the man again approached the child and gave the child
Q: What if A was so envious of his neighbor. To teach the
money and then the said man invited the child to go with
neighbor a lesson, he kidnapped and detained the said
him. Since the child was so happy because the man was so
neighbor and placed the said neighbor in a secluded place in
good to her; the child went with the said man. At 6 o’clock;
a vacant area one morning. However, later on, A felt sorry
the mother came looking for the child but the child was no
for his neighbor and he released his neighbor that night.
longer in the playground. Meanwhile, the man brought the
What is the effect in the criminal liability of the offender A?
child to his place. That evening, the mother kept on looking
for the child however they could not locate the child. In the A: Under Art 268 (Slight Illegal Detention); if the
house of the man, the child was molested and raped twice. offended party has been released. Such release will be
The following morning, when the mother opened the door of

145 |
considered as a privileged mitigating circumstance Q: A was walking when suddenly he was arrested by B, a
because from the penalty of reclusion temporal, the police officer. The police officer said that a case has to be
penalty would be lowered by one degree that is prision filed against him. The arrest was made without warrant of
mayor. arrest. A was not caught committing a crime in flagrante
delicto and not also an escapee but he was incarcerated.
Voluntary release of the victim may only be
Thereafter a case has been filed against him however since
considered as a privileged mitigating circumstance
there was no complainant, the fiscal dismissed the case for
the following requisites must concur:
lack of probable cause. What crime is committed by the
1. It is necessary the release has been made within 3 police officer?
days from the commencement of the said
A: The crime committed is unlawful arrest.
kidnapping.
Q: What about the fact that he has been detained arbitrarily?
2. It must have been made without the offender
having attained or accomplished his purpose. A: It is already absorbed because the intention of the
said police officer is to file a case against him that is; to
3. It must have been made before the institution of the
deliver him to the proper authorities. Therefore, the
criminal proceedings against the said offender.
arbitrary detention is merely incidental in the said act of
Q: What if the person kidnapped by A is a public officer? He unlawful arrest.
is mad with the said public officer and so he kidnapped the
ARTICLE 270 – KIDNAPPING AND FAILURE TO
same and detained him in the morning. In the evening, he
RETURN A MINOR
immediately released the public officer because he told
himself that perhaps the NBI would look after him so he ⮚ Kidnapping and failure to return a minor is
immediately released the public officer. Will such release committed by: any person who had been entrusted
mitigate his criminal liability? with the custody of a minor who shall deliberately fail
to restore the said minor to his parents or guardians.
A: No. the fact that the person kidnapped is a public
officer; the crime would immediately be kidnapping and ☝ What is being punished is the deliberate failure to
serious illegal detention under 267. And if the crime is restore the minor to his parents or guardians.
committed under Art 267, no amount of voluntary Q: Who is the offender?
release will mitigate the criminal liability of the
offender. A: The offender is the person entrusted with the custody
of a minor.
☝ So if the victim is a minor, a female, or a public officer;
automatically, it will be kidnapping and serious illegal
detention and no amount of voluntary release will Q: When will the crime arise?
mitigate the offender’s criminal liability.
A: The crime will arise if the offender shall deliberately
fail to restore the said minor to his parents or guardians.
ARTICLE 269 – UNLAWFUL ARREST Q: What if A and B has a child and they entrusted the child
to X as they will be going for a vacation for a week. They told
⮚ Unlawful arrest is committed by any person who
X to deliver the child to them after 7 days. A week after, the
shall arrest or detain another without authority by
husband and wife arrived home but X failed to deliver the
law or without reasonable ground therefor and his
said child. The reason of X was he was so busy with his work
main purpose is to deliver him to the proper
that he forgot that it was already the 7 th day from the time
authorities.
that he has been entrusted with the child. Can he be held
⮚ The purpose is: to deliver him to the proper liable under Art 270?
authorities. A: No because he did not deliberately fail to restore the
⮚ If the offender is a public officer, you have to know said minor to his parents or guardians. The law requires
the intent of the offender. deliberate failure. Here, he only failed because of
negligence or just because he was so busy.
If the intent is to detain – arbitrary detention.
ARTICLE 271 – INDUCING A MINOR TO ABANDON
If the intent is to deliver him to the authorities, to HIS HOME
file a case against him without legal ground – the
crime is unlawful arrest.

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⮚ It is committed by: any person who induces a minor 1. Offender retains a minor in his service.
to leave the home of his parents, guardians, or person
2. It is against the will of the minor.
entrusted with the custody of the said minor.
3. It is under the pretext of reimbursing himself of a debt
⮚ The crime will arise even if the child has not left the incurred by an ascendant, guardian or person
house of the parents or guardians. Mere inducement entrusted with the custody of such minor.
with intent to cause damage will suffice.
⮚ It is committed by: Any person who shall detain a child
Q: A and B husband and wife’s marriage has been declared
in his service against the will of the child under the
a nullity by the court and the custody of their 5 yr old child
pretext of reimbursing a debt incurred by the parents,
has been given definitely to the mother. However, the father
ascendants, guardian or any person entrusted with the
has been given visiting rights. One Sunday, the father visited
custody of the child.
the 5 yr old son and the son was brought out by the father.
Usually, whenever the father takes his son out; he will return ARTICLE 274 – SERVICES RENDERED UNDER
the child by night time. However, this time, the father did COMPULSION IN PAYMENT OF DEBT
not bring back the child to the house of the mother and so
ELEMENTS:
the mother demanded the return of her son but the father
still failed to return their child therefore the mother filed a 1. Offender compels a debtor to work for him, either as
case of Kidnapping and failure to return a minor under Art household servant or farm laborer.
270 against the father. Will the case prosper?
2. It is against the debtor’s will.
A: Yes the case will prosper. Under Art 271 it is provided
3. The purpose is to require or enforce the payment of a
that Art 270 and 271 can also be committed not only by
debt.
strangers but also by the father or the mother. The only
difference is that under Art 270; if the offender is any ⮚ It is committed by: a creditor to shall compel a debtor to
other person the penalty is reclusion perpetua. But if the work for him as a household servant or a farm laborer
offender is the father or the mother, note that the against the will of the said debtor inorder to require or
penalty is so low; only arresto mayor or a fine of not enforce the payment of a debt.
more than P300 or both fine and penalty depending
ARTICLE 275 – ABANDONMENT OF PERSONS IN
upon the discretion of the court therefore, even the
DANGER AND ABANDONMENT OF ONES OWN
father or the mother can be held liable under Articles
VICTIM
270 and 271. The only difference is their respective
penalties. ACTS PUNISHED:
☝ IN ARTICLES 270 AND 271, the crime may be I. Failing to render assistance to any person whom the
committed by the parents of the minors. If it is the offender found in an uninhabited place wounded or in
parent, the penalty is only arresto mayor. danger of dying when he can render such assistance
without detriment to himself, unless such omission
ARTICLE 272 – SLAVERY
shall constitute a more serious offense.
ELEMENTS:
ELEMENTS:
1. The offender purchases, sells, kidnaps or detains a
1. The person wounded or dying is found in an
human being.
uninhabited place
2. The purpose of the offender is to enslave such human 2. The giving of help would not be detrimental to
being. himself
3. He failed to render help
⮚ It is committed by: Any person who shall buy, sells,
kidnaps or detains a person for the purpose of II. Failing to render help or assistance to another whom the
enslaving the said person. offender has accidentally wounded or injured.
⮚ If the purpose is to engage in immoral traffic; then III. Failing to deliver a child under 7 years of age whom the
the penalty will be qualified. offender has found abandoned, to the authorities or to
his family, or failing to take him to a safe place.
ARTICLE 273 – EXPLOITATION OF CHILD LABOR
Q: A saw B at Luneta Park. He was wounded and bitten by a
ELEMENTS: dog and he was crying for help. However, A, instead of
helping B left. Is A liable under Art 275?

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A: No because the place is not an uninhabited place. Afraid of the people's ire, Lito increased the speed of his car
Luneta Park is a public place. People come and go there. & left.
Therefore, A is not liable under Art 275 despite the fact
Karl was brought to the hospital & the doctor said his eye
that B is wounded and dying.
injury would heal within 2 weeks.
Uninhabited place
What crime/s is/are committed by Lito? Explain.
⮚ One wherein there’s a remote possibility for the
ANSWER:
victim to receive some help.
Lito is liable of Abandonment of One’s own victim under Art.
Q: What if in the same problem, A found B in a forest? So A
275 (2) of RPC, which punishes anyone who shall fail to help
went hunting in a forest when he suddenly saw B in the
or render assistance to another whom he has accidentally
middle of the forest. There was this big trunk of tree on the
wounded or injured.
neck of B and he cannot move. He was begging for the help
of A. A however left. Later, B was rescued. Can he file a case Although the injury caused by Lito on Karl’s right eye is
in violation of Art 275 against A? purely an accident without fault or intent, thereby exempting
him from any criminal liability, Lito is obligated by law to
A: Yes, because B was found by A in an uninhabited
help him. His failure to render any assistance, like bringing
place and he was wounded and in danger of dying
him to the clinic, makes him liable for Abandonment.
because there’s a big trunk of tree on his neck and
there’s no detriment on the part of A to render ARTICLE 276 – ABANDONING A MINOR
assistance but he failed to render assistance therefore A
ELEMENTS:
may be held liable for violation of Art 275.
1. Offender has the custody of the child.
Q: But what if when A found B and he was bitten by a snake
and the snake was still there. B was asking for help however 2. Child is under 7 years of age.
A did not give help because there’s a snake. He’s afraid that
3. He abandons such child.
he might get bitten by the snake too. Can A be held liable
under Art 275? 4. He has no intent to kill the child when the latter is
abandoned.
A: No because helping B will be detrimental on his part.
⮚ Abandoning a minor is committed by any person who
Q: What if A was driving his vehicle when suddenly his car
has been entrusted with the custody of a child under 7
tripped on a stone so the stone flew and hit an eye of a
years of age and he abandons the said child
bystander. The left eye bled. Is A liable?
permanently, deliberately, and consciously with no
A: No because it is purely accidental; it is an exempting intent to kill the said child.
circumstance. He was performing an act with due care
and accident happened without fault or negligence on ⮚ The penalty will be qualified if death resulted from the
his part said abandonment or when the safety of the child has
been placed in danger.
Q: What if when the left eye of the bystander bled; A saw him
and he knows that the bystander is his victim. However, Q: A woman; an OFW worker who left her newly born child
instead of bringing the bystander to the hospital; he inside a garbage bin of an aircraft/airplane and later she has
increased his speed and left. Is A criminally liable this time? been arrested. What crime is committed by the said mother?
A: Yes. A: The crime committed is Abandoning a Minor

under Art. 276. The mother is in custody of the child and
For the first act he is not liable because it is purely she deliberately or and consciously abandoned her child
accidental but when he failed to render help or without the intent to kill. Obviously, there was no intent
assistance to his own victim. This time, he is criminally to kill because she could have killed the said child
liable under Art 275. instead she placed her child inside a garbage can in the
restroom of an aircraft so there was no intent to kill
QUESTION FROM QUIZ (1A ’19-’20)
therefore the crime committed is Abandoning a Minor
Q: Lito was driving carefully on his way home, when the tire under Art. 276.
of his car hit a stone on the road. The stone flew & hit the
right eye of Karl. It started to bleed & Karl could not see so
he slumped on the sidewalk.

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ARTICLE 277 – ABANDONMENT OF MINOR BY A person entrusted in any capacity with the care if such
PERSON ENTRUSTED WITH HIS CUSTODY; child.
INDIFFERENCE OF PARENTS
V. Including any child under 16 years of age to abandon the
ACTS PUNISHED: home of its ascendants, guardians, curators or teachers
to follow any person entrusted in any of the callings
I. ABANDONMENT OF A CHILD BY A PERSON
mentioned in paragraph 2 or to accompany any habitual
ENTRUSTED WITH HIS CUSTODY.
vagrant or beggar, the offender being any person.
⮚ It is committed by: any person who, having
⮚ These acts are considered as exploitation of minors
entrusted with the living and education of a minor
because these acts endanger the life and safety, the
shall deliver a minor to a public institution or other
growth and development of the minors. (usually these
persons without the consent of the person who
involves circus)
entrusted such minor to the care of the offender or,
in his absence, without the consent of the proper Note: If the delivery of the said child is on the basis of a
authorities. consideration, compensation or money, the penalty will be
QUALIFIED.
II. INDIFFERENCE OF PARENTS
⮚ Mere act of delivering the child gratuitously under 16
⮚ It is committed by: any parent who neglects any of
years of age; the crime is already committed.
his children by not giving them the education which
their station in life requires and financial capability ⮚ The fact that it is with consideration; the penalty will be
permits. qualified.
Q: H and W, husband and wife, got separated. The husband ARTICLE 280 – QUALIFIED TRESSPASS TO
would not give any support to their child. Later, became sick DWELLING
and lost her job. She now has no means to provide for the
child so she asked H who is very rich to give support but H ⮚ It is committed by: a private individual who shall
refused. What case or cases may W file against H? enter the dwelling of another against the will of the
latter.
A: W may file a case for Article 277 – Indifference of
Parents. Also, W may file a case for violation of RA 9262 ELEMENTS:
– According to del Socorro v. Val Wilsem, unjustified 1. Offender is a private individual
failure to give support is a criminal act.
⮚ It is committed by a private individual because
ARTICLE 278 – EXPLOITATION OF A CHILD
if it is a public officer acting under a color of
ACTS PUNISHED: authority, then the crime is under Art 128
which is: Violation of Domicile.
I. Causing any boy or girl under 16 to engage in any
dangerous feat of balancing, physical strength or 2. He enters the dwelling of another
contortion, the offender being any person.
3. Such entrance is against the will of the latter.
II. Employing children under 16 years of age who are not
⮚ As discussed under Art. 128; when the law says
the children or descendants of the offender in
against the will, there must be a prohibition or
exhibitions of acrobat, gymnast, rope walker, diver, or
opposition from entering whether express or
wild animal tamer, the offender being an acrobat, etc.,
implied.
or circus manager or person engaged in any of said
callings. ⮚ Mere entry without consent will not bring about
III. Employing any descendants under 12 years of age in QUALIFIED TRESSPASS TO DWELLING.
dangerous exhibitions enumerated on the next ⮚ If the door is opened therefore it means that anyone
preceding paragraph, the offender being engaged in any could enter even without the consent of the owner and
of the said callings. the moment he enters he is not liable for qualified
IV. Delivering a child under 16 years of age gratuitously to trespass to dwelling because there is no prohibition or
any person if any of the callings enumerated in opposition from entering.
paragraph 2, or to any habitual vagrant or beggar, the
⮚ It is necessary that there is an opposition or prohibition
offender being an ascendant, guardian, teacher, or a
from entering. It can be expressed prohibition (e.g. A

149 |
note which states: “Do Not Enter” or the door was closed
and a person knocked so the owner got up and opened
Q: Let’s say there are these town houses. In one of the town
the door but upon seeing the person he immediately
houses, town house A; there’s no person living at the
closed the door) or implied prohibition (e.g. Door is
moment and there was this sign: FOR RENT/ FOR LEASE.
closed even if it is not locked).
X entered the said town house. What crime is committed by
WHEN A PERSON IS ALLOWED TO ENTER A X? Is it qualified trespass to dwelling or is it trespass to
DWELLING (HE WILL NOT BE LIABLE FOR property?
TRESSPASS TO DWELLING):
A: It is trespass to property because it is closed
1. When the offender enters a dwelling of another for premises which is uninhabited at the time of the
the purpose of preventing some serious harm for entering and he entered without first securing the
himself or any other occupant of the dwelling or permission of the owner/care taker.
any other person
Q: What if there is this house which is occupied by husband
2. When the offender enters the dwelling to render
A and B. Husband A and B went for a vacation for a month.
some service to humanity or to justice
So for a month, there is no person in the said place. X learned
3. When the place is entered to is a tavern or an inn
that there is no person in the said place. He entered the said
and the public places are open at the time of
place. What crime is committed? Is it qualified trespass to
entering.
dwelling or trespass to property?
ARTICLE 281 – OTHER FORMS OF TRESSPASS TO
A: The crime committed is Qualified Trespass to
DWELLING
Dwelling. The said place is a residential place and
(TRESSPASS TO PROPERTY) there is someone who is occupying it even if at the
moment there are no people because the said husband
ELEMENTS:
A and B are on vacations, it is still considered as an
1. Offender enters the closed premises or the fenced inhabited place. Therefore, the moment anyone enters,
estate of another. the crime committed is trespass to dwelling and not
trespass to property.
2. Entrance is made while wither of them is
uninhabited. THREE KINDS OF THREATS:
3. Prohibition to enter is manifest yet offender enters. 1. Grave threats

2. Light threats
4. Trespasser has not secured the permission of the
3. Other light threats
owner or the caretaker thereof.
DISTINCTION: GRAVE, LIGHT, OTHER LIGHT
Trespass to property is committed by any person, a private
THREATS
individual or a public officer, who enters a closed premises
or fenced estate which at that time is uninhabited (no one is GRAVE LIGHT OTHER LIGHT
dwelling) and the prohibition to enter is manifest and the THREATS THREATS THREATS
offender enters the said uninhabited place without securing
The threat is The threat does Committed by
the permission of the owner or the care taker thereof.
always & always not amount to a threatening another
TRESSPASS TO TRESSPASS TO amounting to crime. It is with a weapon or
DWELLING PROPERTY and constituting always and draw such weapon
a crime. It may always subject to in a quarrel, unless
Place entered into is a Place entered into is a closed
or may not be a demand of it be in lawful self-
dwelling and premises or a fenced estate
subject to money or the defense; or orally
uninhabited. which is uninhabited.
demand of imposition of threatening, in the
Prohibition to enter can money or any other heat of anger,
Prohibition to enter must be
either be expressed or imposition of condition, even another with some
manifest.
implied. other though not harm not
conditions. The unlawful. constituting a
Entry was made against Entry was made without offender may or crime, and who by
the will of the owner or securing the permission from may not attain subsequent acts
the possessor of the said the owner or the care taker of his purpose. show that he did not
dwelling. the said property. persist in the idea

150 |
involved in his IV. Orally threatening to do another any harm not

threat; or orally constituting a felony.
threatening to do
So whether it be grave threats, light threats or other light
any harm not
threats, the essence of threats is INTIMIDATION. It is a
constituting a
promise of a future wrong, a promise of a future harm. Not
felony.
now, but in the future.
So, since it is a promise of a future wrong, threats may be
committed either personally or orally or it can also be
committed in writing or through an intermediary. If threats
ARTICLE 282 – GRAVE THREATS
are committed through writing or through an intermediary,
PUNISHABLE ACTS: the penalty is qualified.
I. Threatening another with the infliction upon his person, DIFFERENCE BETWEEN GRAVE THREATS, LIGHT
honor or property or that of his family of any wrong THREATS, OR OTHER LIGHT THREATS
amounting to a crime and demanding money or
OTHER
imposing any other condition even though not unlawful, GRAVE LIGHT
LIGHT
and the offender attained his purpose. THREATS THREATS
THREATS
II. By making such threat with the infliction upon his
person, honor or property or that of his family of any Threatening
wrong amounting to a crime and demanding money or another by
imposing any other condition even though not unlawful means of a
and without the offender attaining his purpose. weapon; or
(Elements for this act are the same with the first except
Threatening
that the purpose is not attained.)
another to
III. By threatening another with the infliction upon his
commit a wrong
person, honor or infliction upon his person, honor or
amounting to a
property or that of his family of any wrong amounting
crime BUT it is
to a crime, the threat not being subject to any demand The wrong The wrong
done in the heat
of money or imposition of any condition. threatened to threatened to be
of anger and
be committed committed does
ARTICLE 283 – LIGHT THREATS orally without
always amount not amount to a
the offender
Light threats is committed if a person threatens another with to a crime. crime.
persisting in the
the commission of any wrong which does not amount to a
idea involved in
crime. But it always subject to a demand of money or the
the crime; or
imposition of any other condition even though not unlawful.
By threatening
ARTICLE 284 – BOND FOR GOOD BEHAVIOR
another orally to
“In all cases falling within the two next preceding articles,
do another
the person making the threats may also be required to give
harm not
bail not to molest the person threatened, or if he shall fail to
constituting a
give such bail, he shall be sentenced to destierro.”
crime.
ARTICLE 285 – OTHER LIGHT THREATS Always coupled
May or may not
ACTS PUNISHED: with a demand of
be coupled
money or an
I. Threatening another with a weapon or by drawing such with a demand
imposition of any
weapon in a quarrel, unless it be in lawful self-defense. of money or an
other condition,
Here, the weapon must not be discharged. imposition of
even though
II. Orally threatening another, in the heat of anger, with any condition.
lawful.
some harm constituting a crime, without persisting in
the idea involved in his threat.
III. Any threat made in a jest or in the heat of anger
constitutes light threat only.

151 |
⮚ So whether it be grave threats, light threats or other back inside my house and if you are still here, I will kill you.”
light threats, the essence of threats is What crime is committed?
INTIMIDATION.
A: In this instance where B told A: “Get out of my house.
⮚ Essence of threat: promise of a future wrong, a If I still see you in the afternoon when I get back inside
promise of a future harm. Not now, not personal but in my house and if you are still here, I will kill you.” The
the future. crime committed is GRAVE THREATS. There is a
promise of a future wrong to be committed in the
⮚ Since it is a promise of a future wrong; threats may be afternoon if A is still there in the house.
committed either personally or orally or it can also be
committed in writing or through an intermediary or a Q: What if in the same problem, A was asking B to pay his
third person. indebtedness. B said: “Get out of my house! Otherwise, I will
kill you.” What crime is committed?
⮚ If threats are committed through writing or through an
A: The crime committed is GRAVE COERCION. The
intermediary or a third person; the penalty is
threat is present, direct, personal, immediate, and
qualified.
imminent. Not in the future, but now direct, personal
and immediate.
Q: So what if A went to the store and then from the said store ☝ Note that in case of threats made while committing
he learned that B had been spreading negative rumors physical injuries, threats are absorbed.
against him. And so A was so mad, he was so angry that he
went to the house of B and he called on B: “B get out of the ARTICLE 286 – GRAVE COERCIONS
house! I will kill you! I will kill you! Get out of the house B!” 2 way of committing grave coercion:
But B did not get out of the house. Instead, it was the son of
B who came out of the house and said: “What do you want I. PREVENTIVE COERCION – if a person prevents
with my father?” A angrily said that, “You let your father another, by means of violence, threat or intimidation,
come out or I will kill him because he has been spreading from doing something not prohibited by law.
negative rumors about me.” The son went inside the house II. COMPULSIVE COERCION – if a person compels
and did not come back. The father also did not come out of another, by means of violence, threat or intimidation, to
the house. And so later, A just left the house. What crime is do something against his will, whether it be right or
committed by A? Is it grave threats, light threats or is it other wrong, whether it be prohibited or not by law.
light threats? Q: What if, the offender prevents someone from doing
A: The crime committed is under Article 285 – something which is prohibited by law? So let us say A,
OTHER LIGHT THREATS. Orally, in the heat of wanted to enter the house of B, against the will of B. X saw A
anger, he threatened another with a harm constituting wanting to enter the house of B against the will of B. X
a crime, but he did not pursue with the idea in his threat. prevented A. A in his act of wanting to enter the house of B,
It is only other light threats. is an act prohibited by law, so X prevented A from doing so.
However, A still pursued with the act of entering and so what
Q: What if, let us say, A saw that B has a new car. It was a X did in order to prevent him is that X boxed A resulting in
luxury car. He knew that it was smuggled and so he told B: his injury of slight physical injuries. What crime is
“B, if you will not give me P500,000, I will call the Bureau of committed by X?
Customs, I will tell Commissioner Biazon right now that your
car is smuggled.” What crime if any is committed by A A: It is not grave coercion. Because X is preventing A by
against B? means of violence and intimidation, not from doing
something which is prohibited by law but from doing
A: It is LIGHT THREATS. He threatened to commit something which is prohibited by law. Therefore, it is
a wrong which does not constitute a crime. It is not a not grave coercion.
crime to inform the Bureau of Customs that the car was
smuggled and it is subject to a demand of money and The crime committed is SLIGHT PHYSICAL
the imposition of any other condition even though not INJURIES.
unlawful. ☝ In case of grave coercion, it is necessary that the
Q: What if A, who is the creditor of B, was inside the house offender compels another to do something against his
of B. He was asking B to pay his indebtedness. B said: “Get will, regardless of whether it be right or wrong,
out of my house. If I still see you in the afternoon when I get regardless of whether it is allowed or prohibited by law.
The fact is a person cannot put the law in his hands and

152 |
prevent someone from doing something so long as it is is a human conduct which annoys or vexes the said
against his will. female medical student.
☝ So in case of grave coercion, if the essence of threats is
ARTICLE 288 – OTHER SIMILAR COERCIONS;
intimidation or a promise of a future wrong, a promise
(COMPULSORY PURCHASE OF MERCHANDISE
of a future injury, the injury or threat is present, direct,
AND PAYMENT OF WAGES BY MEANS OF
personal, immediate and imminent. It is NOW. That is
TOKENS)
why, grave coercion cannot be committed in writing or
through an intermediary because it is always personal. Other light coercion is committed by forcing or
Hence, it is about to take place imminent and compelling directly or indirectly or knowingly permitting the
immediate. forcing or compelling any employee or laborer to buy
merchandise or commodities from the said employer. And
THREAT v. COERCION
lastly, by paying the wages due to the laborer or employees
THREAT COERCION by any tokens or object other than the legal tender currency
of the Philippines unless to be requested by the said
The wrong threatened to be employee or laborer.
The wrong threatened to be committed is direct,
committed is in the future personal, immediate and So it is more on LABOR – other light coercion.
imminent Q: What if a person, A threatened to kill B. and so B filed a
Cannot be committed in case of grave threats against A. The case was filed before the
writing or through court. Upon the filing of the court, what bail, if any, should
May be committed in writing the court impose on A in order to insure that A will not make
intermediary because it is
or through an intermediary good the said threat?
always personal and
immediate A: Under Article 284, we have BOND FOR GOOD
It is violence or intimidation BEHAVIOR. Bond for good behavior is a bail which is
The essence of threat is required by the court to be posted by any accused only
amounting serious enough
intimidation in the crimes of grave threats and other light threats. In
to amount to violence
the crimes of grave threats or other light threats, the
Penalty is qualified when: court would allow or would require an accused to file or
The coercion has something to do with the offended party’s to post a bond for good behavior in order to ensure that
right to suffrage or exercise of religion. he will not make good the said threat. If the said accused
failed to pay or post the said bond for good behavior,
ARTICLE 287 – LIGHT COERCION then the penalty hat would be imposed is destierro in
It is committed by a creditor who shall seize anything order to ensure that he will not make good the said
belonging to his debtor by means of violence or intimidation threat.
in order to apply the same to the indebtedness. REVELATION OF SECRETS:
There is one form of light coercion under Article 287, that is ARTICLE 290 – DISCOVERING SECRETS
UNJUST VEXATION. It is a form of light coercion. THROUGH SEIZURE OF CORRESPONDENCE
UNJUST VEXATION – refers to any human conduct, We have seizure of correspondence in order to discover the
which although not capable of producing any material harm secrets of another.
or injury, annoys, vexes, or irritates an innocent person.
This is committed by any person who shall seize any
Example in Book I: a person walking and hit with a lead pipe correspondence of another in order to discover the secret of
on the head. any person.
CASE OF BALEROS, JR.: NOTE: In case of seizure of correspondence in order to
There was a UST medical student. There was a cloth discover the secrets of another, DAMAGE is not element.
soaked with chemical pressed on her face. So there was Likewise, REVELATION is not an element.
this man, she was awakened with a man on top of her The mere act of seizing the correspondence of
placing a cloth soaked with chemical pressed on her another with the intention to discover the secrets,
face. The charge was attempted rape. Supreme Court the crime is already consummated. It is not necessary that
said it was just UNJUST VEXATION – nang-iinis the secret be revealed, it is not necessary that there be
lang daw yung lalaking yun. So, Supreme Court said it damage on the part of the offended party.

153 |
ARTICLE 291 – REVEALING SECRETS WITH THE Q: So what if A told B to come inside his room and when B
ABUSE OF OFFICE entered the room, A started scolding B. In scolding B, A said
scandalous remarks against B. Unknown to A, B was tape
This is committed by a manager or by an employee or by a
recording the private conversation between them. Can B
servant who reveals the secrets of his principal or master
later use the said tape recording in order to file a case of
learned by him in such capacity.
defamation or slander against A?
It is the REVELATION OF SECRETS which will
A: NO. Because the said act of tape recording
consummate the crime, not merely discovery but
without being authorized by all the parties to a
revelation of the said secrets. Again, damage is not an
private communication or spoken word is
element. It is not necessary that the offended party be
inadmissible in any judicial, quasi-judicial,
prejudiced or damaged.
legislative or administrative proceedings or
ARTICLE 292 – REVELATION OF INDUSTRIAL investigation.
SECRETS
This is committed by any person in charge, employee or
The ONLY EXCEPTION is when a police officer or peace
workman of a manufacturing or industrial establishment
officer is authorized by written order of the court to listen to,
who shall learn and discover the secrets of the industry and
intercept or record any communication in crimes involving
shall reveal the same to the prejudice of the owner thereof.
treason, espionage, inciting to war or giving motives for
In case of revelation of industrial secrets, mere revelation reprisals, piracy, mutiny, rebellion, conspiracy and proposal
of those secrets will not suffice. There must be to commit rebellion, sedition, conspiracy to commit sedition
DAMAGE OR PREJUDICE CAUSED TO THE and kidnapping. Only in these instances and provided that
OFFENDED PARTY. the said peace officer is authorized by a written order coming
from the court may he be allowed to intercept, listen to or
The law requires to the prejudice of the owner thereof.
record the private communication or spoken word.
RA 4200 – ANTI-WARTAPPING LAW
BAR: TELEPHONE EXTENSION
The following acts are punishable:
⮚ As held by Gaanan v. People, the one listening, Y, is
1.) It shall be unlawful for any person, without not liable for violation of RA 4200. The extension
securing the consent of all the parties to any private line of a telephone is not within the meaning of a
communication or spoken word, to tap any wire or tape recording device and therefore, even if Y can
cable, or by using any other device or arrangement overhear secretly the conversation, RA 4200 is not
to secretly overhear, intercept or record such violated.
private communication or spoken word by using a
device commonly known as a Dictaphone or
dictagraph, walkie talkie, tape recorder, or other
similar devices.
2.) Knowingly possessing any tape record, wire record,
disc record, or any other such record, or copies
thereof, of these private communications or spoken
words.
3.) Replaying these any tape record, wire record, disc
record to another person.
4.) Communicating the contents of the said tape
record, wire record or disc record, in writing or
verbally to another person.
5.) Furnishing transcriptions of these tape record, wire
record or disc record whether totally or partially to
any other person.
What is foremost prohibited is the act of tapping, recording
or intercepting any private communication or spoken word
without the consent of all the parties. Without being
authorized by all the parties to the said private
communication or spoken word.

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TITLE TEN ARTICLE 294 - ROBBERY WITH VIOLENCE

AGAINST OR INTIMIDATION OF PERSONS
CRIMES AGAINST PROPERTY
The following acts constitute robbery with violence
ARTICLE 293 – ROBBERY
against or intimidation of persons:
Robbery is committed by any person, who with intent to gain
1.) When by reason or on occasion of the robbery, the
shall take any personal property belonging to another by
crime of homicide is committed.
means of violence against, or intimidation of any person, or
2.) When robbery is accompanied by rape or
using force upon anything.
intentional mutilation or arson.
ELEMENTS OF ROBBERY: 3.) When by reason or on occasion of such robbery, any
of the physical injuries resulting in insanity,
1. That the offender unlawfully takes a personal
imbecility, impotency or blindness is inflicted.
property
4.) When by reason or on occasion of robbery, any of
2. That the said personal property belongs to another
the physical injuries resulting in the loss of the use
person
of speech or the power to hear or to smell, or the
3. There must be intent to gain in the taking of the said
loss of an eye, a hand, foot, an arm, or a leg or the
property
loss of the use of any such member or incapacity to
4. That the said taking is either by means of violence
go to work in which the injured person is thereto
against, or intimidation of any person, or using force
habitually engaged is inflicted.
upon anything
5.) If violence or intimidation employed in the
UNLAWFUL TAKING – is the deprivation of the offended commission of the robbery is carried to a degree
party of his personal property with an element of clearly unnecessary for the commission of the
permanency. So, it is necessary that in taking the personal crime
property from another person, there is an element of 6.) When in the course of its execution, the offender
permanency. shall have inflicted upon any person not
responsible for the commission of the robbery any
The law requires that the property must be personal
of the physical injuries in consequence of which the
property, not real property because real property is under
person injured becomes deformed or loses any
Article 312 – Occupation of real property.
other member of his body or loses the use thereof
The personal property must belong to another person or becomes ill or incapacitated for the performance
because if it does not belong to another person it cannot be of the work in which he is habitually engaged for
said that there is intent to gain on the part of the offender. more than 90 days or the person injured becomes
The law requires that there must be intent to gain. ill or incapacitated for labor for more than 30 days
7.) If violence employed by the offender does not cause
Intent to gain is an internal state of mind. So how can you
any of the serious physical injuries defined in
prove intent to gain? The law presumes there is intent to gain
Article 263, or if the offender employs intimidation
the moment there is taking of the personal property of
only.
another person. Intent to gain is presumed by law.
In other words, we have
Two ways of committing robbery:
1. robbery with homicide
I. Robbery with violence against or intimidation (Art.294)
2. robbery with rape
II. Robbery with the use of force upon things (Art.299)
3. robbery with intentional mutilation
The value of the property taken in robbery with violence 4. robbery with arson
against or intimidation against people is immaterial because 5. robbery with serious physical injuries
the penalty is dependent on the violence used by the offender 6. robbery with unnecessary violence
against the offended party. However, in Robbery with the 7. simple robbery
use of force upon things (Art.299), the value of the property ☝ The hierarchy must be observed because in the
taken is material because the penalty is dependent on the commission of the crime of robbery, all had been
value of the property taken. committed – there was homicide, there was rape, there
was intentional mutilation, there was serious physical
injuries, the house was burned –you only have one
single indivisible offense, the robber is only liable for
only one crime which is Robbery with Homicide because
it is the first in hierarchy. All the other acts are absorbed

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in the single indivisible offense of Robbery with wife started shouting so A also shot the wife. The wife also
Homicide. What you take in consideration is hierarchy died. What crime/s is committed?
in the Article 294 and not the hierarchy as how the
A: Two persons are killed still, the crime committed is
crime is committed.
still a single indivisible offense of robbery with
☝ Ex. In the course of the robbery, the robber first raped
homicide. All the killings are merged into a composite
the victim, thereafter, he killed the victim. Rape took
intergraded whole that is a single indivisible offense of
place ahead of homicide and yet, the crime committed
robbery with homicide.
is Robbery with Homicide because you consider the
hierarchy of 294. Q: What if let us say, in the same problem, so A went to the
house of X and took the jewelry. He was on his way out when
ROBBERY WITH HOMICIDE
he bumped the door and so the owner of the house was
Robbery with homicide is a special complex crime awakened. A went down and saw the back of the robber. He
or a composite crime or a single indivisible offense. In chased the robber. In the garden, A tried to shoot the owner
reality two or more crimes have been committed, the of the house and so A jumped on him and they struggled for
robbery and the homicide yet, in the eyes of the law only the possession of the gun. In the course of struggle for the
one crime, a single indivisible offense of robbery with possession of the gun, the gun fired hitting a ballot vendor
homicide. passing by. The ballot vendor died. What crime/s is
committed?
Q: When should the killing or the homicide take place?
A: The crime committed is still the single indivisible
A: In case of robbery with homicide, for as long as the offense of robber with homicide. Since it is a special
original intent of the offender, for as long original complex crime, even if the victim of the robbery is
criminal design is to commit robbery or to rob, the different from the victim of the homicide, it is still
killing may take place before, during or after the said robbery with homicide. Even if it is only accidental
robbery provided, that the original intent/ original killing it is still robbery with homicide so long as the
criminal design is to commit robbery or to rob. killing is by reason or on occasion of the said robbery.
Since it is a special complex crime, regardless of the Q: So what if, A, B, and C entered the house of X in order to
number of the persons killed there is only a single commit robbery. They have already taken the valuables
indivisible offense of robbery with homicide. Even if the when the owner of the house was awakened. It was only A
killing is an unintentional killing or accidental killing who saw the owner of the house was awaken and so A shot X
still, it is a single indivisible offense of robbery with and killed him. Are they all liable for robbery with homicide
homicide. Even if the victim of the said robbery is or only A who shot X?
different from the victim of the killing, it is still
robbery with homicide. There lies the difference A: All of them are criminally liable for the crime of
between Article 294 and Article 267. In kidnapping and robbery with homicide. Under Article 8, that in case of
serious illegal detention with homicide, the victim of the an express or direct conspiracy, the conspirators are
kidnapping and serious illegal detention must be the liable only for the crime agreed upon. The crime agreed
victim in the said killing to amount to kidnapping and is to commit robbery but how come all of them are liable
serious illegal detention. But in case of robbery with for homicide? Because it falls under the exception that
homicide, regardless of who the offended party may be, when the resulting felony is a special complex crime
whether the offended party in robbery is different from because you cannot separate or divide a special complex
the offended party in the killing it is still robbery with crime. Therefore, even if it was only A who killed the
homicide. victim, even if their agreement is only to commit
robbery, because homicide or the killing was committed
Q: So let us say, A entered the house of B in order to commit by reason or on occasion of the said robbery, all of them
robbery. He took the valuables therein and after taking the are criminally liable for the crime of robbery with
jewelry suddenly the box of jewelry fell so X was awaken. homicide.
When A saw that X was awaken, A shot X. X died. What
crime is committed? The only exception to the exception is when B and C
performed acts in order to prevent A from committing
A: Robbery with homicide because by reason or on the homicide.
occasion of robbery, homicide was committed.
People v. Cabbab
Q: What if in the same problem, when X was awaken, the
robber, A, shot X. The wife was also awakened and so the Let us say, A and B versus X, Y and Z. A and B
committed robbery and upon leaving the said place, X

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and Y saw A and B and shot them and made gun fires. but also Cainglet while, the other two was outside
Z, a police officer dove into the canal in order to prevent serving as lookouts. So the said woman, Clarissa, was
himself from being killed. A and B went directly to X and raped by two persons and she was raped three times.
Y and killed them both. And thereafter, A and B took the Suyu and Cainglet raped her by carnal knowledge. Not
winnings. Based on the circumstances or facts the fiscal only that, Cainglet also inserted two fingers to her
filed the following cases before the RTC, robbery, genitals therefore, he also committed rape by sexual
double murder, and attempted murder, robbery assault. What crimes are committed by the 4 persons?
because of the taking of the winnings, double murder for What crime/s they should be criminally liable of?
the death of X and Y and attempted murder as to the
Supreme Court said, they are all liable for the single
police officer who dove into the canal. What is the ruling
indivisible offense of Robbery with Rape. Regardless of
of the RTC? It said wrong ka fiscal! The crime is robbery
the fact that two persons raped the victim, regardless of
with double homicide and attempted murder. Then it
the fact that the victim was raped 3 times, regardless of
went to appeal on the Court of Appeals, sabiniya wrong
the fact that there is two nature of rape committed
fiscal! Wrong ka din RTC! The crime committed is
against the victim (rape by carnal knowledge and rape
robbery with homicide and attempted murder. Then it
by sexual assault), still the crime committed is the single
went up to the Supreme Court. Sc said, malika fiscal!
indivisible offense of robbery with rape.
Mali ka RTC! Mali kadin CA! Mali kayo lahat! The only
crime committed is the single indivisible crime of There are four conspirators but not all of them raped the
robbery with homicide. Because all the acts are victim. Yet they are all liable for robbery with rape
considered absorbed in the crime of robbery with because the two lookouts did not perform acts in order
homicide despite the fact that two persons were killed, to prevent the consummation of the said rape. So since
despite the fact that one person was greatly injured, all it is a special complex crime and a single indivisible
these circumstances are merged into a composite offense all the other rapes are merged into a composite
integrated whole that is single indivisible offense of integrated whole that is robbery with rape.
robbery with homicide.
The same theory applies in case of robbery with
ROBBERY WITH RAPE intentional mutilation and robbery with arson.
Just like robbery with homicide, is also a special Q: The woman, W, was walking when a man, M, appeared in
complex crime or a single indivisible offense. So, for as front of her. He boxed the woman and carried the woman to
long as the intention of the offender is to commit a secluded place and had carnal knowledge with her against
robbery, rape may be committed before, during or after her will. After, he had carnal knowledge with her for the
the commission of robbery. Since it is a special complex second time. When he was about to leave, he saw the shiny,
crime, regardless of the number of times the victim was beautiful necklace of W and grabbed the same while the
raped, the crime committed is only robbery with rape. woman tried to prevent him. Then he left. What
There is no such crime as robbery with multiple rapes. crime/crimes is/are committed?
There is only robbery with rape.
A: There are two crimes committed – two counts
Q: So a woman was walking on her way home and because it of rape and simple robbery (with intimidation).
was pay day here comes X. X dragged the woman in a dark
The intent was to rape the woman and he committed the
place and took the bag and took the money inside it. And
act twice so two counts of rape. Then he forcibly took the
then he found the woman attractive so he raped the woman
necklace despite the fact that the woman tried to
not once but twice. What crime/s is committed?
prevent him from taking the same.
A: X committed the crime of robbery with rape
It is not robbery because the robbery was not the
regardless of the times the woman was raped.
original criminal intent.
People v. Suyu
ROBBERY WITH INTENTIONAL MUTILATION,
Two persons, boyfriend and girlfriend, they were having ARSON, AND SERIOUS PHYSICAL INJURIES
snack and saw the shadow of 3 men. And these 3 men
For as long as the intent or the criminal design of the
were pushing the truck trying to open the door. They
offender is to commit robbery, the intentional
took their valuables and the boyfriend hurriedly left the
mutilation, arson or serious physical injuries may be
girlfriend allegedly to ask help to the police. The
committed before, during or after the commission of the
girlfriend was alone with the three men and they
said robbery.
dragged her into a nipa hut and there she was raped by
the mastermind, Suyu. Not only she was raped by Suyu

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Q: So let say A and B saw X walking. It was pay day and so A QUESTION FROM QUIZ (1A ’19-’20)
and B announced a holdup. They were both armed with guns
and so what X did since they were both armed with guns, he Past 11:00 in the evening, Tisoy, wanting to rob the house of
gave the bag. By reason thereof, A and B already left the Rex, broke the lock of the door & entered. He thought Rex
place. While A and B was waiting for a ride in a waiting shed, was fast asleep so he was shocked to see him watching tv.
A and B divided the things they took from X. So A told B, Nervous, he immediately fired at Rex who fell on the sofa.
this is your share. B said, why is my share smaller than your Tisoy ransacked the house of Rex, taking all his money, and
share?! And so B got and he shot A. A died. What is the crime left.
committed? Rex, though fatally wounded, was able to ask help from his
A: The crime committed is robbery with homicide neighbors. Rex surived after an immediate medical
because even if it was also an offender who was killed, operation, but had to stay in the hospital for 2 months.
the killing took place by reason of the said robbery. Rex was able to identify Tisoy from the gallery of pictures
Q: So what if in the same problem, so A and B were already shown to him by the police. Armed w/ a warrant of arrest,
dividing the things they took and B said, wait why is my the police looked for Tisoy but failed. A month later, the
share so small? B got mad shot A but A did not die. A suffered police got a tip that Tisoy was seen at VEERUS Mall.
serious physical injuries. What crime is committed? Policemen immediately went to said mall, & saw Tisoy
outside. When Tisoy saw the police fast approaching, he
A: The crime committed is robbery with serious opened a parked taxi, stabbed the driver to death, boarded
physical injuries. the taxi, & left. The police chased Tisoy but they lost him.
Q: What if in the same problem, A were dividing the things Sensing that he was able to escaped from the police, Tisoy
and B said, why is my share so small compared to your parked the taxi. He was about to get out when he took notice
share? B got mad and what he did was took an ice pick from of a wallet at the floor of the taxi at the back seat. He took the
his pocket and stab A in his face and placed the ice pick in wallet & upon opening, he found P2,000.00, $200, & a call
A’s face. A suffered serious physical injuries and deformity center agent ID of one Aurora Remigio. He placed the wallet
in his face. It caused physical ugliness to A therefore there is inside his bag & left the taxi. He went into hiding from one
deformity. What crime/s is committed? town to another until he was arrested in Cebu.
A: This time the crime committed by B is not the single What is/are the crime/s committed by Tisoy? Explain.
indivisible crime of robbery with serious physical
injuries but two crimes, Robbery and Serious physical SUGGESTED ANSWER:
injuries under paragraph 3 of Article 263 because of the Tisoy is liable of the following crimes:
deformity. Why? Because under paragraph 4 of Article
294, when the serious physical injury that resulted is a 1.) Special Complex Crime of robbery with Serious
deformity or the loss of any of the member of his body, Physical Injuries (SPI), Art. 294 of RPC.
the law requires that the said physical injury or In this special complex crime of robbery with SPI, the
deformity must be inflicted because of the execution of original criminal design of the accused is to rob and SPI is
a robbery and to a person not responsible to the inflicted by reason or on occasion of robbery. As long as the
commission of the crime of robbery. Here, the intent is to rob, SPI may be inflicted before, during or after
deformity was inflicted after the robbery, not before. the robbery.
Not only that. The deformity was inflicted on A, the
person responsible for the commission of the robbery. In this case, the original criminal intent of Tisoy was to
commit robbery. He entered the house wanting to rob. That
If the serious physical injuries inflicted resulted to a he shot Rex ahead of ransacking the house is of no moment
deformity or to a loss of any of the member of his body as the shooting took place in order to facilitate robbery,
or loss of the use of any such member or incapacity to hence done by reason or on occasion thereof. It is SPI
go to work in which the injured person is thereto because the wounds inflicted on rex made him ill for 2
habitually engaged for more than 90 days, under months.
paragraph 3 of Article 263, it is required that in order to
amount to a single indivisible offense the said deformity
or serious physical injury must be inflicted in the course 2.) He also committed carnaping under RA 10883. The
of the execution of the robbery and to a person not elements of carnapping are: a.) there is actual taking of
responsible to the commission of the robbery. motor vehicle that belongs to another; b.) it was done with
Otherwise, it will bring about a separate and distinct intent to gain; c.) without the consent of the owner or with
crime.

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violence against or intimidation of persons or force upon 3 ways of committing robbery with use of force upon
things. Here, Tisoy actually took a taxi with intent to gain things:
(i.e. to facilitate his escape from the police, after stabbing the
I. When a person enters the dwelling, house, public
driver. Since the killing of the driver took place in the
building or edifice devoted to worship where personal
commission of carnapping, the penalty is life imprisonment.
property is taken through:
a. An opening not intended for entrance or egress
b. By breaking any wall, roof, or floor or breaking
3.) He also committed Theft. Under Art. 308 of RPC,
any door or window.
any person who having found lost property shall fail to
c. By using false keys, picklocks or similar tools
deliver the same to the local authorities or to its owner is
d. By using any fictitious name or pretending the
liable of theft. In this case, tisoy found the lost wallet of
exercise of public authority
Aurora inside the taxi he carnapped, yet he failed to bring it
☝ Under the first act, the essence of the crime is in the
to the owner or to the authorities.
unlawful entry; it is the act of trespassing and also the
ARTICLE 295 – ROBBERY WITH PHYSICAL taking of the property of another. It is necessary that the
INJURIES, COMMITTED IN AN UNINHABITED entire body must have entered, otherwise, even if there
PLACE AND BY A BAND, OR WITH THE USE OF is breaking, it would only amount to theft and that
FIREARM ON A STREET, ROAD OR ALLEY. breaking would amount only to aggravating
circumstance. The Supreme Court ruled that when the
ARTICLE 296 – DEFINITION OF A BAND AND
law used the word “enter”, it means that the entire body
PENALTY INCURRED BY THE MEMBERS
must have entered said place to take the property of
THEREOF.
another.
ARTICLE 297 – ATTEMPTED AND FRUSTRATED
Q: A, in order to rob the house made an opening in the roof,
ROBBERY COMMITTED UNDER CERTAIN
sufficient for him to enter. So he used a rope in going down
CIRCUMSTANCES.
and thereafter he took the valuables and then left. What
Q: A and B were walking when suddenly X stopped them and crime is committed?
announced a holdup. A struggled with X and in the course
A: Robbery by use of force upon things. A made an
thereof, X killed him by shooting him with his gun. X tried
opening and he was able to enter fully.
to get the bag of B but police officers came into the scene so
he left. What crime/crimes is/are committed? Q: What if he made an entry, let down a rope with a hook
and used it in taking the valuable?
A: The original intent of X was to rob but in the course
thereof, he killed A so robbery with homicide. However, A: The crime committed only is theft with aggravating
X was not able to get the bag of B do the crime circumstance of the breaking of the roof. His body did
committed is Attempted Robbery with Homicide. not enter the premises.
ARTICLE 298 – EXECUTION OF DEEDS BY MEANS II. When the offender manages to enter said inhabited
OF VIOLENCE OR INTIMIDATION place, dwelling, public place or place dedicated to
religious worship without any unlawful entry, or is an
Section Two – Robbery by the use of force upon
insider, and once inside, he used force in opening in
things
order to:
ROBBERY WITH USE OF FORCE UPON THINGS ⮚ Break doors, wardrobes, chests, or any other
ARTICLE 299 – ROBBERY IN AN INHABITED kind of locked or sealed furniture or receptacle
HOUSE OR PUBLIC BUILDING OR EDIFICE ☝ The second act is when the offender was able to enter
DEVOTED TO WORSHIP without unlawful entry or was an insider and once
inside, breaks the doors, wardrobes, chest, receptacles,
⮚ Another form of robbery is robbery with the use of and thereafter took the personal properties inside the
force upon things in Art 299. house.
⮚ In case of violence against persons, the value of the Q: A and B are brothers, living in the same house and in the
property is not important because the penalty is the same room but have different cabinets where each of the
basis of the violence. cabinets have locks. One time brother A was in need of
money and wanted to borrow money from brother B, but
⮚ In Art. 299, the basis of the penalty is the value of the
brother B was out of the house. So what brother A did was
property taken.
that he forcibly opened the cabinet of brother B and took the

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expensive jewelry of brother B and appropriated the jewelry? receptacle. Instead, he took the cabinet and
What are the crimes committed? Is Brother A only liable receptacle outside to open it.
civilly?
Circumstances that will qualify robbery with use of
A: A is guilty of robbery with use of force upon things. force upon things:
He is an insider, and he used force to break open the
ARTICLE 300 – ROBBERY IN AN UNINHABITED
cabinet of B. He did not commit theft. Since the crime
PLACE AND BY A BAND.
committed is robbery, brother A is criminally liable and
civilly liable. Because under Article 332, it is only on ⮚ Under Article 300, if robbery is committed with in
cases of theft, swindling, estafa, and malicious an uninhabited place and by a band — the law used
mischief, wherein there’s no criminal liability but only the conjunction AND, both must concur in order to
civil liability in case of relatives living together. amount a qualifying circumstance, to increase the
Q: In the same problem, what if A was in need of money, he penalty. So it should be in an uninhabited place
saw the expensive watch of B on top of the table and sold the and by a band, therefore both must be present.
watch. What crime was committed? Q: A, B, C, D, and E went inside an unlocked house of W and
A: A committed the crime of theft since there is no his family while they were about to have dinner. A, B, C, D,
breaking or forcibly opening the receptacle. Under Art and E were armed with armalites and pointed them at W and
332, he is only liable for civil liability. They are free from his family, saying “We are not here to harm you. Give us your
criminal liability. valuables.” W went to his bedroom and later handed to A the
valuables. A, B, C, D, and E left. Crime committed?
Art. 332. Persons exempt from criminal
liability. — No criminal, but only civil A: Robbery in band. When more than three armed
liability, shall result from the commission of malefactors committed the crime of robbery, it is
the crime of theft, swindling or malicious robbery in band.
mischief committed or caused mutually by the Q: What if when the 5 armed men were about to leave but
following persons: they realized that the W and his family might identified them
1. Spouses, ascendants and descendants, or so they fired against W and all eight members of the family.
relatives by affinity in the same line. Crime committed?
2. The widowed spouse with respect to the A: Robbery with Homicide. This is because the
property which belonged to the deceased original criminal intent was to rob and in the occasion
spouse before the same shall have passed thereof, the victims were killed. Regardless of the
into the possession of another; and number of persons killed – nine – still, it is robbery with
Homicide. Supreme Court said that there is no such
3. Brothers and sisters and brothers-in-law crime as Robbery in Band with Homicide because
and sisters-in-law, if living together. Robbery with Homicide is a special complex crime
which the law itself combined and the law only
The exemption established by this article
combines robbery and homicide.
shall not be applicable to strangers
participating in the commission of the ARTICLE 295 – ROBBERY WITH PHYSICAL
crime. INJURIES, COMMITTED IN AN UNINHABITED
PLACE AND BY A BAND, OR WITH THE USE OF
⮚ Since it refers to simple crimes, if the crime
FIREARM ON A STREET, ROAD, OR ALLEY.
committed is estafa through falsification of public
document, there will be criminal liability. This ● In case of robbery with serious physical injuries,
exemption from criminal liability will only lie in the unnecessary violence or simple violence, how will the
cases mentioned in Art. 332. crime be qualified?
III. When the offender manages to enter said inhabited
The answer is under Art. 295, where if the said
place, dwelling, public place, or place dedicated to
robbery is:
religious worship without any unlawful entry, once
inside he took the sealed receptacle outside to be opened 1. Committed in an uninhabited place OR by
or forced open. a band
⮚ The offender was able to enter and once inside, he 2. By attacking any moving train, street car,
did not use force to open the close cabinet or motor vehicle or airship

160 |
3. By entering the passenger’s Since he was found in possession of picklocks that is

compartments in a train; or intended for the commission of Robbery, he is therefore
4. Taking the passengers by surprise in their liable under Art. 304.
respective conveyances
■ If what is used is a locksmith; the penalty will be
5. On a street, road, highway, or alley and
qualified.
the Intimidation is made use of a firearm
☝ That in case of robbery with violence or intimidation on Q: What if let’s say A knew that the house of B was vacant so
persons, the qualifying circumstances are present, only A with the use of a picklock opened the front door of the
one of these is sufficient to qualify the penalty. The law house by the use of the said picklocks and then he entered
here uses the conjunction OR not AND. the said house. He took the valuables and then he got out of
Q: What are the circumstances which will qualify the crime the said house and there was a guard who saw him and
of Robbery with Physical Injuries? frisked him and there was picklocks found in his possession.
A: ART 295. When the robbery with violence What crime/s is/are committed by A?
against or intimidation of persons is qualified if the A: In this case, A is only liable for 1 crime that is;
Robbery is committed in: Robbery with force upon things under Art. 299.
1. an uninhabited place; He is no longer liable under Art. 304 because under Art
2. by a band; 299; may use a picklocks and other similar tools as a
3. by attacking a moving train, street car, mode of entering a house.
motor vehicle, or airship Q: Let’s say A was on board a jeepney was 5 passengers and
4. by entering the passengers compartments in the moment the jeepney passed by a guard, A announced a
a train, or in any other manner taking the holdap. So he said holdap and pointed his gun towards other
passengers thereof by surprise in the passengers. While pointing out the gun towards the
respective conveyances passengers, he asked the passengers to give him their
5. on a street, road, highway or alley and the valuables. While the other passengers was giving him their
intimidation is made with use of firearms. valuables, one passenger tried to fight with A so A shot the
NOTE that the law used the conjunctive OR therefore, the passenger and after that he left without being able to take
presence of anyone of this will already qualify the crime of any of the valuables of the passengers. The passenger who
Robbery with Physical Injuries. However, this only applies was shot was brought into the hospital but he did not
to Robbery with Physical Injuries, Robbery with unnecessary survived. The intention was to rob however Robbery was not
violence, and Simple Robbery. consummated. What crime/s is/are committed by A?
Q: What if A knows that the house of B was vacant so A saw A: The crime committed by A is attempted
that there was a window opened and so he got a ladder put it robbery with homicide. This is also a special
right beside the window and climb the ladder to get inside complex crime. Here robbery was attempted because he
the house by passing through the window. Thereafter, he got was unable to take any of the property. The fact that A
out of the house and he passed through the main door. And was able to announce hold-up and bring the valuables
in the house there is a guard. The guard arrested him and he to him means that the original design is to commit
was frisked. Upon being frisked; found in his possession are robbery. It was attempted because he was unable to take
picklocks. What crime if any is committed by A? the property, and in the course of thereof, he killed the
owner.
A: The crimes committed by A are Robbery with
force upon things under Art. 299 and ⮚ In order to amount to special complex crime, it is
Possession of Picklocks under Art. 304. necessary that both the robbery and homicide must
be consummated.
There are 2 crimes committed because the offender
entered the house through an opening not intended for Q: What if in the course of robbery, the said owner was shot
the entrance or egress. He entered through a window but was able to survive. What crime is committed?
and a window is an opening not intended for the A: The crime committed is robbery with physical
entrance or egress. By the mere act of entering, he injuries depending on the injuries sustained by the
already committed Robbery by force upon things. He victim. In order to amount to robbery with homicide, it
did not use the picklocks. He passed through the is necessary that both crimes must be present and there
window. It is an act of unlawful entry. is no such thing as robbery with frustrated
homicide or attempted homicide, for it is the law
which provides for the crime which must be complexed,

161 |
and the law does not provide that frustrated homicide circumstance. The proper designation of the crime is
or attempted homicide must be complexed with robbery with homicide. The fact that it is committed by
robbery. 4 armed men is only an aggravating circumstance.
Under Art. 296, if a band committed robbery, it is only
In the instant case, since the killing took place at the
an aggravating circumstance.
spur of the moment, then it is robbery with homicide.
Q: A went to the house of B. A told B “this is a hold up and ARTICLE 306 – BRIGANDAGE
bring out the valuables”. Instead of bringing the valuables to Under Article 306, it is committed by at least 4 armed men
A, B panicked and shouted. A therefore shot B. B died. A also for the purposes of -
panicked and left the place without bringing his loot. What
is/are the crime/s committed? 1. committing robbery in the highway;
2. kidnapping persons for the purpose of extortion or
A: The crime committed by A is attempted robbery with ransom
homicide. This is also a special complex crime. Here 3. for any other purpose to be attained by means of
robbery was attempted because he was unable to take force and violence.
any of the property. The fact that A was able to
announce hold-up and bring the valuables to him means Art. 296 Art. 306
that the original design is to commit robbery. It was Both require at least 4 armed persons
attempted because he was unable to take the property,
and in the course of thereof, he killed the owner. It is required that the 4 The crime is already
armed men must actually consummated by the mere
☝ In order to amount to special complex crime, it is take part in the commission fact that 4 armed men
necessary that both the robbery and homicide must be of the robbery formed a band of robbers.
consummated.
It is not required that they
Q: What if in the course of robbery, the said owner was shot actually commit the
but was able to survive. What crime is committed? enumerated purposes.
A: The crime committed is robbery with physical
injuries depending on the injuries sustained by the
victim. In order to amount to robbery with homicide, it PD 532 (THE ANTI-HIGHWAY ROBBERY LAW OF
is necessary that both crimes must be present and there 1974)
is no such thing as robbery with frustrated In PD 532, brigandage is defined as the seizure of any
homicide or attempted homicide, for it is the law person for ransom, extortion, or other unlawful purposes, or
which provides for the crime which must be complexed, the taking away of property of another by means of violence
and the law does not provide that frustrated homicide against or intimidation of persons of force upon things or
or attempted homicide must be complexed with other unlawful means, committed by any person on any
robbery. Philippine highway.
In the instant case, since the killing took place at the Art 306 vs. PD 532, or the Anti-Highway Robbery
spur of the moment, then it is robbery with homicide. Law of 1974
Chapter Two People v. Cerbito
BRIGANDAGE Art. 306 PD 532
What if robbery was committed by 4 armed men? Requires that there must be No requisite as to the
ARTICLE 296 – DEFINITION OF A BAND AND at least 4 armed men number of perpetrators of
PENALTY INCURRED BY THE MEMBERS the crime
THEREOF Even a single person can
Q: A was walking, suddenly there are 4 men with knives and commit the crime of
took A’s bag which is full of money. A put up a fight. And so brigandage
these armed men killed A. What crime is committed? Is the The mere formation of the There must be an actual
crime committed robbery in band with homicide? band of robbers for any of commission of the crime or
A: There is no such crime as robbery by a band with the purposes mentioned will no crime will arise
homicide. The said use of band is only an aggravating bring about the crime

162 |
to the movements or whereabouts of police authorities,

or who, in any manner, shall acquire or receive property
taken by the said band or persons shall be liable as an
accomplice.
There is a predetermined or There is no preconceived ■ If the crime is under Article 306, the owner of the
preconceived victim victim. It is committed canteen shall be held liable under Article 307 –
indiscriminately on any Aiding and abetting a band of brigands.
person passing on the
highway as long as it is Q: If the kidnapping was done for purpose of ransom and it
committed in a Philippine was committed by 4 armed men, would it still amount to 2
highway. separate crimes of kidnapping for ransom and brigandage or
only either brigandage or kidnapping for ransom?
Q: A, B, C, D, and E were having a drinking spree with W
where W divulge that he will withdraw the next day 5M for A: If the said kidnapping to extort ransom was done
him to buy a car. The next day, after withdrawing the cash indiscriminately (no particular victim in mind) on
from the bank, while W was driving along a highway, another Philippine highway, crime is brigandage under PD 532. The
van cut his vehicle and stopped him. A, B, C, D, and E number of kidnappers is immaterial.
alighted armed with knives and at knifepoint, they took the Otherwise, it is kidnapping for ransom under Art. 267 of
5M. what is the crime committed? RPC. That 4-armed men acted together to kidnap would be
A: Brigandage because here, there is a predetermined appreciated as an aggravating circumstance – band. (Art. 14
victim, W. of RPC).
Q: Let’s say A, B, C, D, and E for a number of months or Chapter Three

weeks, they have already committing robbery along a THEFT
highway. This time, they were having a drinking spree in a
canteen along the highway. While they were having a ARTICLE 308 – THEFT
drinking spree in a canteen along the highway, they needed ⮚ Theft is committed by any person who, with intent to
more beer/liquors, however, they ran out of money and so A, gain but without violence against or intimidation of
B, C, and D decided to commit robbery on any person who persons or without use of force upon things, shall take
passes by the highway. They positioned themselves along the personal property of another without the latter's
highway and flagged down the first vehicle that they saw and consent.
it happened to be a taxi. The taxi driver, thought that they
were passengers so he stopped. The moment they opened the Theft is likewise committed by:
door of the taxi, they, at gun point took his earnings and 1. Any person who, having found lost property, shall
thereafter allowed the taxi driver to get out of the said place. fail to deliver the same to the local authorities or to
Thereafter, these four men gave the money that they took as its owner;
payment to the owner of the canteen. The owner of the 2. Any person who, after having maliciously damaged
canteen saw how these four men got the money. The owner the property of another, shall remove or make use
of the canteen received the money in exchange of beer. What of the fruits or object of the damage caused by him;
crime is committed by the 4 men? and
A: The four men shall be liable for Highway 3. Any person who shall enter an enclosed estate or a
Robbery or Brigandage under PD 532. It is field where trespass is forbidden or which belongs
Highway Robbery under PD 532 because the robbery to another and without the consent of its owner,
was committed indiscriminately, there is no particular shall hunt or fish upon the same or shall gather
or predetermined victim. cereals, or other forest or farm products.
What crime is committed by the owner of the The definition is almost the same as robbery. The difference
canteen? lies in the case of robbery where there is violence or
intimidation of persons and use of force upon things, while
A: The owner of the canteen is liable as an in theft, there is no violence, intimidation against persons or
accomplice. This is because under Section 4 of PD force upon things.
532, it states that any person who knowingly and in any
manner aids or protects pirates or highway Other acts tantamount to theft:
robbers/brigands, such giving them any information as

163 |
1. A person who found a lost personal property of Q: A was a security guard. The owner of the house left his
another but did not give it to the lawful authority or key to the security guard. However, the security guard used
owner, there is theft. the key to open the house of the owner and took the
2. A maliciously caused damaged to the property of B, valuables. What crime is committed?
he makes use of the fruits of the damage.
A: The Security Guard is liable for qualified theft
3. Any person who enters a closed premises or fenced
because of grave abuse of confidence.
property of another where trespass is forbidden
and without consent of the owner shall hunt, or fish Q: X and Y are sisters. While Y was out, X took cellphone of
upon the same or shall gather, fruits, cereals, or Y and appropriated the proceeds to her own personal
other forest or farm products. benefit. What crime is committed? Is she liable of theft or
qualified theft?
Valenzuela v. People
A: The crime is Simple Theft. It is not qualified theft
There is no frustrated theft. In this case, the offender
because the taking of the cellphone, although the same
took boxes of tide from SM North Edsa and placed it in
may have been committed with abuse of confidence, but
the taxi. Before they were able to left the premises of
this will not suffice to qualify theft. What will qualify
SM, they were apprehended. The offenders were
theft is grave abuse of confidence which the Supreme
charged of consummated theft. They did not deny that
Court defines as the existence of relationship of
they committed theft but their defense is that they
guardianship, dependency, and vigilance between the
committed frustrated theft.
offender and offended party.
The SC En Banc in 2007 ruled that there is no crime as
RA 6539, as amended by RA 10883
frustrated theft. In case of theft, unlawful taking is
deemed complete the moment the offender gain (ANTI-CARNAPPING ACT)
possession of the property of another, theft is
Anti-carnapping law was amended by RA 10883 which
consummated.
provides that Carnapping – is the taking with intent to
ARTICLE 309 – PENALTIES gain, of motor vehicle belonging to another without the
consent of the latter, or by means of violence against or
ARTICLE 310 – QUALIFIED THEFT
intimidation of persons, or by use of force upon things.
Theft is qualified in the following instances:
PENALTIES BROUGHT ABOUT BY RA 10883:
1. If theft is committed by a domestic servant
If carnapping is committed without violence against or
2. If committed with grave abuse of confidence
intimidation of persons, the penalty is 20 years and 1 day to
3. If the property stolen is a (a) motor vehicle, (b) mail
30 years.
matter, or (c) large cattle
4. If the property stolen consists of coconuts taken If carnapping is committed with violence or intimidation of
from the premises of the plantation persons, or by force upon things, the penalty is 30 years and
5. If the property stolen is taken from a fishpond or 1 day to 40 years.
fishery
If the carnapping is committed and in the course thereof, the
6. If property taken on the occasion of fire,
owner, the driver, or the occupant of the car is killed or is
earthquake, typhoon, volcanic eruption, or any
raped, the penalty is life imprisonment.
other calamity, vehicular accident, or civil
disturbance. ELEMENTS:
Q: A is a domestic servant. When his master was out of the 1. Actual taking of motor vehicle
house, A went to the masters’ bedroom and took the jewelry. 2. The vehicle belongs to another
In the information cited that he was a domestic servant but 3. There is intent to gain in the taking of the vehicle of
the information did not state that A took the jewelry with another
grave abuse of confidence. Is A liable for qualified theft? 4. Said taking is taking without the consent of the
owner or by means of violence or intimidation or by
A: Yes, according to the Supreme Court, the law uses
means of force upon things.
the conjunction OR. The fact that the accused is a
domestic servant, it will suffice. The law does not Q: A was driving his car and suddenly felt the need to answer
require that abuse of confidence to be established. It will the call of nature so he parked his vehicle. Suddenly, there
suffice that the accused is a domestic servant. was X and saw A was out of the car, and the door of the car

164 |
was open and the key was left inside the car. X drove away The Anti-Cattle Rustling Law, although a special law, is not
with the car. What is the crime committed? malum prohibitum but a malum in se. Under Sec. 10 of the
law, it is expressly provided that this law amends Art. 309
A: The crime committed is carnapping. Even if there is
and 310 of the RPC. Since it is an amendment, the SC it is a
no violence or intimidation against person or force upon
malum in se and not a malum prohibitum.
things, so long as said taking is without the consent of
the owner, it will amount to carnapping. ARTICLE 311 – THEFT OF THE PROPERTY OF THE
NATIONAL LIBRARY AND NATIONAL MUSEUM.
If there is no intimidation, violence, or no force upon
things, the penalty is 20 years and 1 day to 30 years. ⮚ The value of the property is immaterial because the
law prescribed the penalty of arresto mayor or fine
Q: In the given situation, what if A saw X and there was a
or both.
fight that ensued between them. X shot A, and X was able to
take the vehicle. A however survived due to immediate Chapter Four
medical treatment. What is/are the crimes committed by X?
USURPATION
A: The crime committed by X is only carnapping. The
fact that X shot A, where there is frustrated homicide, it ARTICLE 312 – OCCUPATION OF REAL PROPERTY
falls under violence or intimidation which was used by OR USURPATION OF REAL RIGHTS IN
the offender in committing the crime. Since there is PROPERTY.
violence, the penalty is 30 years and 1 say to 40 years. ACTS PUNISHED:
Q: If again, in the same problem, A tried to stop X and X shot I. Occupation of real property which is committed by any
A. A died. What is the crime committed? person who by means of violence against or
A: The fact that the owner is killed or raped as a intimidation shall occupy the real property of another
consequence, the penalty is life imprisonment. It will ⮚ Penalty depends on resulting crime plus amount of
bring about a higher penalty, but not as a special gain
complex crime because it is a Special Penal Law. II. Usurpation of real rights in property committed by any
Though it is akin to a special complex crime, the killing person who by means of violence against or
is absorbed. The crime is carnapping. intimidation shall usurp any real rights in property of
another person
PD 533 (ANTI-CATTLE RUSTLING LAW)
Q: There was a vacant lot. Here comes A and B and his
Cattle Rustling - defined as the taking away by any means, family. The said land or property was being guarded by X. A
method or scheme, without the consent of the owner/raiser, and B went inside the vacant lot and tried to build a nipa
of any large cattle whether or not for profit or for gain, or house because they do not have any house. And so the guard
whether committed with or without violence against or told them that A and B has no right to build a nipa house
intimidation of persons or force upon things. It includes the because the lot is owned by Y. However, A and B told the
killing of a large cattle or taking it as a meat or hide without guard that they do not have any house. In the course of the
the consent of the owner/raiser. argument, A and B killed the guard. What is/are the crimes
Large Cattle- shall include cow, carabao, horse, mule, ass, committed?
or other domesticated member of the bovine family. Goats A: The crime committed is only occupation of real
are not large cattle. (sabi nung isang justice sa SC na prof property. The killing is only a means to occupy the real
naming dati, si Lawyer daw pag kinidnap cattle rustling daw property. It falls under violence against or intimidation
tawag dun. Ang evil nya!) of persons in occupying the real property.
Q: A’s carabao was tied on the mango tree. X saw the carabao Q: In the same problem A and B put up their house in the
alone. So what X did was he untied the carabao and took the vacant property. The owner learned this and went to A and
carabao away. A saw X with his carabao so A tried to catch B’s house. However, A and B killed the owner.
up with X. As A was able to catch up with X, a fight ensued.
X took his bolo and hacked A to death. What is the crime A: In this case, two crimes are committed. The killing
committed by X? took place after occupying the place. This time, the
crimes committed are occupation and homicide or
A: The crime committed by X is only cattle rustling. The murder as the case maybe.
fact that the owner was killed is within the meaning of
violence or intimidation against persons. It will not Art. 313. Altering boundaries or landmarks. — Any
bring about a separate and distinct crime of murder. person who shall alter the boundary marks or monuments

165 |
of towns, provinces, or estates, or any other marks intended ■ Estafa is always bailable. Unlike in Qualified Theft,
to designate the boundaries of the same, shall be punished the higher the value of the property, the higher the
by arresto menor or a fine not exceeding 100 pesos, or both. increase in penalty so it is possible that the penalty
will reach death penalty so there is a situation
Chapter Five
wherein the offender is under preventive detention
CULPABLE INSOLVENCY because qualified theft is not a bailable offense.
Unlike in Estafa, the penalty is dependent on the
Art. 314. Fraudulent insolvency. — Any person who
value of the damage but there is a maximum
shall abscond with his property to the prejudice of his
penalty which is pegged at 20 years so estafa is
creditors, shall suffer the penalty of prision mayor, if he be a
always bailable because the penalty cannot go
merchant and the penalty of prision correccional in its
beyond 20 years. The only exception is in case of
maximum period to prision mayor in its medium period, if
Syndicated Estafa under PD 1689.
he be not a merchant.
SYNDICATED ESTAFA:
ELEMENTS:
CHAPTER SIX – SWINDLING AND OTHER
DECEITS 1. Any act of Estafa under Article 315 or 316 is
committed
ARTICLE 315 – SWINDLING/ESTAFA
2. It is committed by group of five persons acting as a
THREE KINDS OF ESTAFA: syndicate
3. The defraudation consists in the misappropriation of
I. ESTAFA WITH UNFAITHFULNESS OR ABUSE OF
money contributed by the stockholders or members
AUTHORITY – ART 315 (1)
of the corporation, rural banks, cooperatives,
II. ESTAFA BY MEANS OF FALSE PRETENSES OR
"samahang nayon(s)", or farmers' associations, or of
FRAUDULENT ACTS EXECUTED PRIOR TO OR
funds solicited by corporations/associations from the
SIMULTANEOUSLY WITH THE COMMISSION OF
general public.
THE CRIME – ART 315 (2)
III. ESTAFA THROUGH FRAUDULENT MEANS – ART People v. Tibayan
315 (3)
In this case, a judicious review of the records reveals
ELEMENTS: (whatever be the crime of estafa, there TGICI’s modus operandi of inducing the public to
are always two general/common elements): invest in it on the undertaking that their investment
would be returned with a very high monthly interest
1. The offender defrauded another by reason of abuse of
rate ranging from three to five and a half percent (3%-
confidence or by means of deceit.
5.5%). Under such lucrative promise, the investing
⮚ It does not necessarily mean that there must always public are enticed to infuse funds into TGICI. However,
be deceit. In lieu of deceit, estafa can be committed as the directors/incorporators of TGICI knew from the
by means of abuse of confidence. start that TGICI is operating without any paid-up
2. Damage or prejudice capable of pecuniary estimation is capital and has no clear trade by which it can pay the
caused to the offended party or to a third person. assured profits to its investors, they cannot comply with
⮚ It is necessary that there must be damage or their guarantee and had to simply abscond with their
prejudice caused to the offended party or to a third investors’ money. Thus, the CA correctly held that
person. accused-appellants, along with the other accused who
⮚ The law requires that this damage or prejudice are still at large, used TGICI to engage in a Ponzi
must be capable of pecuniary estimation because scheme, resulting in the defraudation of the TGICI
the penalty in estafa is dependent on the damage investors.
caused to the offended party. Hence, it is necessary
To be sure, a Ponzi scheme is a type of investment fraud
that the said damage or prejudice must be capable
that involves the payment of purported returns to
of pecuniary estimation. You can estimate its value
existing investors from funds contributed by new
because the penalty is dependent on the value of the
investors. Its organizers often solicit new investors by
damage caused.
promising to invest funds in opportunities claimed to
generate high returns with little or no risk. In many
■ Whatever be the kind of estafa, there must always
Ponzi schemes, the perpetrators focus on attracting new
be the presence of these two elements.
money to make promised payments to earlier-stage
investors to create the false appearance that investors

166 |
are profiting from a legitimate business. It is not an of marijuana to B. When B reviewed the said boxes of
investment strategy but a gullibility scheme, which marijuana, B discovered that on the uppermost portion, they
works only as long as there is an ever increasing number were premium quality marijuana but on the lower portion,
of new investors joining the scheme. It is difficult to they were of poor quality marijuana. Can B file a case of
sustain the scheme over a long period of time because estafa against A?
the operator needs an ever larger pool of later investors
A: Yes, B can file a case of estafa with
to continue paying the promised profits to early
unfaithfulness or abuse of confidence against A.
investors. The idea behind this type of swindle is that
This is because the law says that even if it is based on an
the “con-man” collects his money from his second or
illegal or immoral consideration, there must be a
third round of investors and then absconds before
substitution of the quality or quantity, in this case, of the
anyone else shows up to collect. Necessarily, Ponzi
said dangerous drugs which have been delivered by A to
schemes only last weeks, or months at the most.
B.
As opposed to the case of:
b) By misappropriating or converting, to the
Hao v. People prejudice of another, money, goods, or any
There was this duly formed company, ABC Corporation, other personal property received by the
and this corporation enticed W to make investment in offender in trust or on commission, or for
the corporation. They promised huge profits so W first administration, or under any other
invested 1M and a huge profit was given to him obligation involving the duty to make
prompting him to increase his investment. So now he delivery of or to return the same, even
gave 10M of which he was given 50% of the profits. So though such obligation be totally or
he was enticed further and deposited 100M. He was partially guaranteed by a bond; or by
given a check and this time, the check bounced. Looking denying having received such money,
for the officers of ABC Corporation, he found out that goods, or other property.
they were already gone and the office was closed. W ⮚ VERY POPULAR KIND OF ESTAFA
charged all officers of ABC Corporation of Syndicated ⮚ It is necessary that the offender received
Estafa. The Supreme Court held that the officers are not from the offended party money, goods or
liable of Syndicated Estafa but only Simple Estafa under other personal property. When the said
Article 315(2)(a) or Estafa under False Pretense. offender receives such thing from the
offended party money, goods or personal
It is not syndicated estafa because there is only one
property, what has been transferred to the
victim and that is W and therefore the third element of
offender was JURIDICAL POSSESSION
Syndicated Estafa is wanting. Since there is only one
of the said property.
victim, it cannot be said that the money was solicited
⮚ If only material possession has been
from the general public.
transferred to the offender, and the
I. ESTAFA WITH UNFAITHFULNESS OR ABUSE offender misappropriated or converted
OF CONFIDENCE the same, the crime committed is only
THREE PUNISHABLE ACTS: theft or qualified theft but not estafa. So in
a) By altering the substance, quantity, or order for the crime of estafa to arise, it is
quality or anything of value which the necessary that the offender has juridical
offender shall deliver by virtue of an possession of the money, goods or
obligation to do so, even though such personal property.
obligation be based on an immoral or illegal Juridical Possession – is a possession in the concept of
consideration. an owner; it is a real right over the property during the time
⮚ It can either be based on legal or illegal that the property is in his possession, he has better right even
consideration. The law does not take into than that of the owner of the said property.
consideration that it must always be legal.
Even if the consideration is immoral or Corpus v. People
illegal, still, estafa is committed if there is In case of Estafa through misappropriation or
an alteration or substitution. conversion, there is no requisite that demand be in
Q: A and B entered into an agreement, A has to deliver to B writing. Any form of demand so long as demand has
premium quality of marijuana. B paid. A delivered two boxes been made and the offender failed to return the thing,
there is already estafa. In fact, if it is already agreed that

167 |
the offender has already taken the thing, demand is not employee of the said bank. In fact, in case of deposits in
necessary. bank, the said client will not be able to get back the very
same money that he has deposited. Hence, the crime
Q: What if A rented a bicycle from B. A will use the bicycle
committed by the teller is only qualified theft but not
for three hours and shall pay B 500 pesos for the use of the
estafa.
said bicycle. Upon payment, A is now using the bicycle.
Three hours had lapsed, A failed to deliver the bicycle to B. Q: What if A is an employee in a company, XYZ corporation.
B demanded the return of the bicycle. A did not return the He was a field worker and whenever he goes to the field to
bicycle. Can B file a case of estafa against A? work, he has this cash advance given by the company. One
time, he went to work with a cash advance, however, upon
A: B can file a case of estafa against A. Estafa is
returning to work, he failed to liquidate the cash advance. A,
the crime committed by A because when B gave the
despite notices by the company, failed to liquidate the cash
bicycle to A, it was based on a contract of lease (a
advance. So the corporation filed a case against A. Will the
contract of rent), hence, juridical possession had been
case prosper?
transferred from B to A. A, during the three-hour period
has juridical possession over the said bicycle and during A: The case will not prosper. The Supreme Court
this period, A has better right to the property than B, the said that a cash advance is equivalent to a loan,
owner thereof. When A failed to return the said bicycle therefore when the company gave cash advance to the
to B after three hours, then he committed estafa. employee, there is not only transfer of the said money to
the employee but transfer of ownership of the said
Q: What if A told B to obtain a loan in his favor in a bank and
money. The employee is now the owner of the said
then he gave B his diamond ring as collateral for the said
money. When you say liquidate, it means that he is
loan. However, B, instead of using the ring as collateral for
paying his indebtedness to the company, therefore their
the loan, B sold the ring and misappropriated the proceeds
relationship as employer and employee, insofar as the
of sale. What case, if any, may A file against B? Is B liable for
cash advance is concerned, is that of a creditor-debtor
estafa?
and not that of entrustor-entrustee. Hence, there is no
A: B is not liable for Estafa. When A gave the ring estafa committed, there is no theft committed. The
to B, what has been transferred to B is only material liability of the employee is only civil in nature. The
possession of the ring. It is not juridical possession company can only file a case of sum of money against
because B is merely an agent of A so that B will be the the employee for failing to pay his indebtedness in the
one to use the said ring as collateral in order to obtain a form of cash advance to the company.
loan in favor of A. Juridical possession remains with the
owner, A, hence the crime committed is only c) By taking undue advantage of the signature
qualified theft. of the offended party in blank, and by
writing any document above such signature
Q: What if A is a regular customer in the bank. A went to the in blank, to the prejudice of the offended
bank, went to the teller who usually deposits his money and party or of any third person.
he gave the teller 1 million in cash plus the passbook. A told
the teller, “Here is my passbook and 1 million in cash. Please Q: The manager of a company has a blank document which
deposit it to my account. I am in a hurry to go to work and contains only the signature. The manager gave it to the
be back in the afternoon.” A left the passbook to the teller secretary and told the secretary to use the document for
and went to the office. In the afternoon, before going home, emergency purposes. When the manager left, the secretary
A went back to the bank, however the teller was not there so wrote in the document stating that the manager will
A asked for his passbook. The bank gave him the passbook shoulder or pay his entire loan in a lending firm. What crime
but when A looked at the passbook, the 1 million was not is committed by the said secretary? Is the said secretary
deposited to his account. What crime/crimes if any may A liable for estafa or estafa through falsification of a private
file against the teller on whom he gave the said money to document or falsification of a private document. Which of
deposit in his bank account? the three crimes is committed by the secretary?
A: The crime committed by the teller is only A: The crime committed is Estafa. This is because
Qualified Theft. It is not estafa because when A gave the manager entrusted to the secretary the document in
the money to the teller to deposit to his bank account, blank which contains his signature and the secretary
what has been transferred was only material possession wrote therein above the signature to the prejudice of the
of the said money. It is not the juridical possession manager because the manager now assumes an
taking into consideration that the participation of the obligation. SO the crime committed by the secretary is
said teller is as that of the bank, the teller being a mere estafa.

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Q: What if in the same problem, the secretary placed the falsification of a public document, estafa through
blank document on top of his table. Here comes B, a falsification of an official document, estafa through
customer of the said company. B while talking to the falsification of a commercial document. Because in
secretary saw the document with the signature of the these kinds of falsification, damage is not an
manager and so he surreptitiously took one of those element.
documents, brought it home and wrote in the document
above the signature that the manager shall be the one to pay II. ESTAFA BY MEANS OF FALSE PRETENSES OR
all his indebtedness in a lending firm. What crime is FRAUDULENT ACTS EXECUTED PRIOR TO OR
committed by the said customer? Is the customer liable for SIMULTANEOUSLY WITH THE COMMISSION
estafa or estafa through falsification of a private document. OF THE FRAUD
A: The customer is liable for Falsification of a
Private Document under Art 172. This is because he
caused that the manager participated in an act or
proceeding when he did not so participate, one of the FIVE PUNISHABLE ACTS:
acts of falsification punished in Article 171 and 172.
a) By using fictitious name, or falsely
✰ Why not estafa through falsification of a pretending to possess power, influence,
private document? qualifications, property, credit, agency,
⮚ Because there is no such crime as estafa business or imaginary transactions, or by
through falsification of a private means of other similar deceits.
document. You cannot complex estafa Q: What of there were four licensed nurses who all want to
with falsification of a private document work in Canada. Here comes X. X learned that A, B, C, and
because both estafa and falsification of a D passed the board so he went to their house and told them
private document HAVE DAMAGE AS that X has a placement agency that has all the qualifications
ELEMENT, and one and the same damage to help them find work in Canada. A, B, C, and D believed X,
cannot give rise to two crimes therefore and X demanded that they give X 100k for processing fees.
you can never complex estafa and They gave the money to X. A, B, C, and D never saw X again.
falsification of a private document. It is Later X was arrested. What are the crimes committed by X?
either estafa or falsification of a private
document. A: A, B, C, and D can file two cases against X.
Estafa under article 315 (2)(a) and Illegal
When is it estafa? Recruitment in Large Scale under the Labor
Code. These two cases are cumulative and not
⮚ If estafa can be committed without falsifying the exclusive each other; hence, the offender can be charged
private document but the falsification of a private of these two crimes at the same time.
document merely facilitated the commission of the
crime, then the appropriate charge is estafa Estafa under 315 (2) (a) is committed because X
because the falsification of a private document is misrepresented to them that he has the qualification
merely incidental. and the agency to bring them to work in another country
when in fact, he does not have such qualification and
⮚ If estafa cannot be committed without falsifying
agency. Where it not for the said misrepresentation by
the private document, the crime committed is
X, the offended parties A, B, C and D would not have
falsification of a private document because estafa is
parted with the said 100 Thousand pesos in cash.
a mere consequence.
⮚ So you only have to choose between estafa and The other crime committed by X is Illegal
falsification of a private document but you can Recruitment in Large Scale. In Labor Code, if
never complex the two. There is no such crime as Illegal Recruitment is committed against three or more
estafa through falsification of a private document. persons, individually or as a whole, it is considered as
Illegal Recruitment in Large Scale. On the other
⮚ But there is such a thing as estafa through hand, if it is committed by five or more persons, it is
falsification of a public document because in
considered as Syndicated Illegal Recruitment.
falsification of a public document, damage is not an
Both crimes are considered crimes involving economic
element. So in a deed of absolute sale was falsified
sabotage under the Labor Code and is the reason why it
in order to deceive another in the crime of estafa, it
is a non-bailable offense.
will give rise to the complex crime of estafa through

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■ So if the only charge is estafa under 315 (2) (a) thirtieth day of the month, this check will be funded. I will
is the only charge, the offender can post bail have money deposited in here because it is my payday.” B
but if there is also a charge of Illegal received the check. On the thirtieth day of the month, the
Recruitment in Large Scale, then he shall be date stated on the check, B deposited the check, however the
behind bars while the case is ongoing check was dishonored due to insufficiency of funds. B sent a
b) By altering the quality, fitness, or weight of notice of dishonor to A. However, A, despite receipt of the
anything pertaining to his art or business. said notice of dishonor failed to make good of the check or
make arrangement with the bank in order to cover the
Q: In the market, you bought a kilo of apples. The vendor
amount of the check. What case, if any, can B file against A?
put on the scale one apple which is already one kilo. What
May B file a case of estafa under Art 315 (2)(d) against A or
crime if any is committed by the vendor?
can B file a case of violation of BP 22 against A?
A: The crime committed estafa by altering the
A: B can only file a case of violation of BP 22
quality, fitness or weight of anything pertaining
against A. B cannot file a case of estafa under Art
to his art or business. He alters the weight of the
315 (2) (d) because B has already boarded the
apple which pertains to his business and therefore he
construction materials and A has already taken the
can be held liable for estafa under 315 (2)(b).
construction materials. A week later, B went to A asking
c) By pretending to have bribed a Government for the payment and it was only at the time that A gave
employee the check that bounced. Therefore the issuance of the
d) By postdating a check or issuing a check in check was in payment of an obligation which already
payment of an obligation when the offender exists at the time. Estafa under 315 (2)(d) cannot be
had no funds in the bank OR his funds committed if the check was issued in payment of a pre-
deposited therein were not sufficient to existing obligation because for estafa under Art 315
cover the amount of the check. (2)(d) to arise, it is necessary that the issuance of the
check is in concomitance with the defraudation.
⮚ Also a very popular form of estafa – estafa by
postdating a check. Q: A is in need of construction materials, he went to B. A said
⮚ For this kind of estafa to arise, it is necessary he needed construction materials. B said he can get it if he
that the issuance of the check must be in had money. A said he didn’t have any money at the moment
concomitance with the defraudation (act of but was issuing a postdated check instead dated on the
defrauding) because note that Art 315 says that thirtieth day of the month. He guaranteed B that the check
estafa by means of false pretenses or will be funded on the thirtieth day of the month. B received
fraudulent acts exerted prior to or the check and boarded the construction materials needed by
simultaneously with the commission of fraud. A inside the truck of A. On the thirtieth day of the month, B
Therefore, it is necessary that the issuance of deposited the check but the check was dishonored by the
the check is in concomitance with the bank for insufficiency of funds. Notice of dishonor was sent
defraudation, that is, the offender would not to A. However, despite of lapse of three days, A failed to
have parted with his property would it not for make good of the check or at least made arrangement with
the promise that the check would be funded. the bank in order to cover the full amount of check. May B
⮚ The offender is given a period of three days to file a case of estafa under Art 315 (2) (d) against A? May B
make good of the check. If the offender failed file a case of violation of BP 22 against A?
to make good the check, it is said to be prima A: B can file both Estafa under Art 315 (2) (d)
facie evidence of deceit constituting the and violation of BP 22 against A. Estafa was
fraudulent act or false pretenses. committed by A because the check was issued, it was
Q: A was constructing his vacation house. He suddenly ran only received by B at the time of the construction of
out of materials so A went to B. A told B that he is in need of materials was delivered. The check was received by B
the construction materials. B said, “okay, you can get your upon guarantee given by A that on the thirtieth day of
construction materials.” A said “I don’t have money at the the month, the check will be funded. Therefore, the
moment. I will pay next week.” So B gave the needed issuance of the check was in concomitance with the
construction materials, boarded them in A’s truck and A defraudation. Estafa under Art 315(2)(d) is committed.
went. A week after, B went to A, asking for the payment of Likewise, violation against BP 22 is committed because
the construction materials. A said “B, I have no money at the violation of BP 22 will arise whenever a check had been
moment. B, I am issuing to you a check, post-dated, on the issued and the said check was dishonored upon
thirtieth day of the month. B, I guarantee you, on the presentment to the drawee bank. There immediately

170 |
arises violation of BP 22. (The essence of the crime of b. By resorting to some fraudulent practice to
BP 22 is the issuance of a worthless check) insure success in a gambling game
⮚ In the book of Reyes, there was a
A can be prosecuted for two crimes – Estafa under
cockfight. The offender removed the thing
Article 315 (2)(d) and violation of BP 22 – at the same
on the feet of rooster and so, by reason
time. These remedies are committed not exclusively of
thereof, he won the game. So the offender
each other therefore A can be prosecuted at the same
resorted to some fraudulent practice to
time of both cases.
insure success in the gambling game.
e) By obtaining any food, refreshment or
accommodation at a hotel, inn, restaurant, c. By removing, concealing, or destroying, in
boarding house, lodging house, or whole or in part, any court record, office
apartment house and the like without files, document, or any other papers
paying therefor, with intent to defraud the
proprietor or manager thereof, OR by QUESTION FROM QUIZ (1A ’19-’20)
obtaining credit at a hotel, inn, restaurant, Jen gave Era pieces of jewelry for sale on commission basis.
boarding house, lodging house, or They agreed that Era would remit the proceeds of the sale &
apartment house by the use of any false return the unsold items to Jen w/in 60days. The period
pretense, OR by abandoning or lapsed w/o Era remitting the proceeds nor returning the
surreptitiously removing any part of his jewelries. Jen demanded by phone that Era remit the sales'
baggage from a hotel, inn, restaurant, proceeds & return the unsold items. Era promised to do so
boarding house, lodging house or but failed. Instead, she issued postdated checks. Jen made
apartment house after obtaining credit, further demands, the last of which was in writing, but they
food, refreshment or accommodation were all unheeded. When Era deposited the checks to her
therein without paying for his food, account, the drawee bank di
refreshment or accommodation.
⮚ The offender went to a hotel or inn to obtain shonored them for insufficient funds. Era was charged with
food, refreshment or accommodation, he did Estafa and Violation of BP22.
not pay. Or he obtain credit, he did not pay. Will the charges against Era prosper? Explain.
Or his goods are inside the hotel, he abandons
his goods, he abandons his valuables, he ANSWER:
surreptitiously removes parts of his baggage The case of Estafa will prosper. All the elements of Estafa
therein. through Misappropriation or Conversion, under Article 315
(1) (b), RPC are present. Jen gave Era pieces of jewelry in
III. ESTAFA THROUGH FRAUDULENT MEANS trust or on commission with an obligation to sell or return
THREE PUNISHABLE ACTS: the same within 60 days if unsod. There was
a. By inducing another, by means of deceit, to misappropriation when Era failed to remit the proceeds of
sign any document jewelry sold or return the pieces of jewelry unsold despite
⮚ CASE: Intestate Estate Of Manolita demand, to the damage and prejudice of Jen.
Gonzales Vda. De Carungcong v.
Jen’s demand via phone and later in writing will suffice. In
People
Corpuz v. People, the SC said that in Estafa through
In this case, the Japanese son-in-law asks
Misappropriation, demand may come in any form. It may be
the mother-in-law to sign a document. He
formal or written or verbal.
induced her to sign a document saying
that it was about taxes but in truth and in However, the case of violation of BP 22 will not prosper
fact, it is a SPA for the sale of the property because Era did not receive a written demand or notice of
in Tagaytay and by reason thereof, the dishonor on the checks that bounced.
mother-in-law, who was already blind,
Although proof of receipt of written notice of dishonor is not
signs the document therefore Sato, the
an element of BP 22, it is necessary in order to establish that
Japanese son-in-law, was able to sell the
the issuer of a check was aware of the insufficiency of funds
said property. This is the kind of Estafa by
when he issued the check dishonored by the drawee bank.
inducing another by means of deceit to
Said notice of dishonor must be in writing and received by
sign a document.
the drawer of the check as provided for in said law.

171 |
1. The drawer of the check received a notice of

dishonor within five days, he deposited the amount
in the bank to cover the check, there will arise no
BOUNCING CHECKS LAW (B.P. 22) prima facie evidence of knowledge of insufficiency
of funds.
[relate to Art 315 (2) (d)]
2. Within 5 banking days, he went to the bank and
SECTION 1 – CHECKS WITHOUT SUFFICIENT made arrangement for the amount necessary to
FUNDS cover the check.
☝ Five banking days is important
ACTS PUNISHABLE:
Q: What if A issued a check to B in favor of an obligation, B
I. Making or drawing and issuance of a check
was however a businessman who was too busy so he was able
knowing at the time of issue that the offender
to deposit the check 120 days from the date appearing on the
does not have sufficient funds in the bank.
check (beyond the 90-day period). The check presented was
⮚ The drawer of the check knew that at the time of the
dishonored. Notice of dishonor was sent to A and A failed to
issuing of the check, he has no funds in the bank
make good the check within 5 banking days. Can B still file a
II. The failing to give sufficient funds or credit with
case for violation of BP 22 against A?
the drawee bank such that when the check
presented within the period of 90 days from the A: Yes, B can file a case for violation of BP 22
date appearing on the check, it was dishonored against A. This is because for as long as a check is not
by the drawee bank. yet a stale check, if the check was deposited and it was
⮚ At the time of the issuance of the check, the drawer dishonored, violation of BP 22 is committed. Here, the
has funds in the bank, however, the crime will arise check was deposited 120 days from the date appearing
because he failed to make good the check or he on the check. The fact that it was deposited beyond the
failed to keep funds to the said drawee bank within 90-day period would only mean that there is no longer
the period of 90 days such that when the check was prima facie presumption of knowledge of insufficiency
deposited within 90 days, it was dishonored by the of funds. However, such prima facie presumption
drawee bank. knowledge of insufficiency of funds can be proven
through other evidence, so still, violation of BP 22 is
SECTION 2 – PRIMA FACIE EVIDENCE OF committed.
KNOWLEDGE OF INSUFFICIENCY OF FUNDS
The 90-day period in the second act is only important in
The making, drawing and issuance of a check payment of order to determine prima facie knowledge of
which is refused by the drawee because of insufficient funds insufficiency of funds. In the first act, at the outset, at
in or credit with such bank, when presented within ninety the time of the issuance of the check, the drawer, has
(90) days from the date of the check shall constitute prima already prima facie knowledge that he has no funds in
facie knowledge of insufficiency of funds. the bank. In the second act, the fact that the offender
⮚ This prima facie knowledge of insufficiency of has kept funds in the bank for 90 days and thereafter
funds, however, will not arise if the drawer of the the depositor deposited the check beyond 90 days, what
check deposited the amount necessary to cover the is only erased is the act of prima facie knowledge of
check within five (5) banking days from the date of insufficiency of funds by the drawer of the check but this
receipt of notice thereof. knowledge can still be proven by other facts, hence, 90-
day period does not mean that there is no case of BP 22.
⮚ Therefore, for the prima facie of knowledge of
insufficiency of funds to arise, the following are the When is BP 22 not committed?
elements or the requisites:
Wong v. Ca
1. The check must be deposited within 90 days
from the date appearing on the check. In this case, the check was deposited 157 days after
2. That the drawer of the check received a the date appearing on the check.
notice of dishonor either from the bank or The SC said that it is not yet a stale check. A check
from the payee or holder of the check becomes stale when it is deposited after six months
3. The drawer of the check failed to make good or after 180 days.
of the check within 5 banking days.
Q: B was so busy, he deposited the check on the 181st day
No prima facie knowledge of insufficiency of funds from the date appearing on the check. The check was

172 |
dishonored. Can he file a case of violation of BP 22 against mere mistake of fact without any taint of
A? negligence, the appropriate penalty is fine in lieu of
imprisonment.
A: No, B cannot file a case of violation of BP 22
3. The SC said if the penalty imposed by the court is
against A. This is because the check has no more value
fine only, and the said offender or drawer of the
since it is already a stale check under the Negotiable
check is insolvent to pay the fine, then there is no
Instruments Law. It is no longer the fault of the drawer
legal obstacle for the imposition of subsidiary
that he has no funds in the bank. It is the fault of the
imprisonment under Art. 39 of Book I of RPC.
holder or the payee of the check that he failed to deliver
or deposited the check within the period required by Lim v. People
law.
Even if the offender makes good of the check beyond
SECTION 1 – PENALTY five-banking days allotted by law, still the fiscal, upon
learning that the offender had already made good the
Under Section 1 of BP 22, the penalty for violation of BP 22
check before the filing of the case before the court, the
is imprisonment of 30 days to 1 year or a fine not less than
fiscal should not have filed a case of BP 22 against the
but not more than double the value of the check or in no case
offender. Unlike estafa, violation of BP 22 is a crime
to exceed 200, 000 pesos, or both fine and imprisonment at
against public interest and the moment the value of the
the discretion of the court
check had been paid, public interest is no longer
Are these still the penalties or have they been damaged.
amended by the SC by SC-A.C. No. 12-2000 and SC-
The SC said, in the bottom of decision, that the ruling is
A.C. No. 13-2001?
only applicable in violation of BP 22 and not in Estafa
The penalty of 30 days to 1 year and the fine are still the by post-dating a check because in the latter, even if the
penalty prescribed by law. Even if the SC issued these offender made good of the check after the case has been
two circulars, the SC cannot amend the law. The SC does filed, such act would not relieve the person from
not have that power; only congress has that power. criminal liability because what is being punished in
estafa is the presence of false pretense, the presence of
SC-A.C. No. 12-2000
fraud therefore, in estafa by post-dating a check, the
It is stated in SC-A.C. No. 12-2000 that in lieu of offender is only given 3 days to make good the check and
imprisonment, the penalty to be imposed in violation of if he failed, he is already liable for estafa and no amount
BP 22 should only be fine, that is, if based on the facts of payment would free him from criminal liability.
and circumstances of the offense and the offender, the
ARTICLE 316 – OTHER FORMS OF SWINDLING
check was issued in good faith or under mere mistake
of fact without any taint of negligence. SC said that the OTHER FORMS OF SWINDLING CAN BE
appropriate penalty should be fine in lieu of COMMITTED BY THE FOLLOWING:
imprisonment.
⮚ Any person who, pretending to be owner of any real
Because of this SC-AC No. 12-2000, many MTC judges property, shall convey, sell, encumber or mortgage
thought that imprisonment is no longer a penalty for the same.
violation of BP 22. They thought that now, the penalty ⮚ Any person, who, knowing that real property is
for violation of BP 22 is only fine. And because of this encumbered, shall dispose of the same, although
misunderstanding on the part of MTC judges, the SC has such encumbrance be not recorded.
to issue another administrative circular, the SC-A.C. No. ⮚ The owner of any personal property who shall
13-2001 in order to clarify SC-A.C. No. 12-2000. wrongfully take it from its lawful possessor, to the
SC-A.C. No. 13-2001 prejudice of the latter or any third person.
⮚ Any person who, to the prejudice of another, shall
The SC made the following clarifications:
execute any fictitious contract.
1. The SC-A.C. No. 12-2000 does not remove ⮚ Any person who shall accept any compensation
imprisonment as an alternative penalty for given him under the belief that it was in payment of
violation of BP 22. Therefore, imprisonment is still services rendered or labor performed by him, when
a penalty for violation of BP 22. in fact he did not actually perform such services or
2. What SC-A.C. No. 12-2000 only establishes is a rule labor.
of preference on the imposition of the penalty such ⮚ Any person who, while being a surety in a bond
that if the offender acted in good faith or under given in a criminal or civil action, without express

173 |
authority from the court or before the cancellation ⮚ If the offender commits any act of swindling, any
of his bond or before being relieved from the act of deprivati0n not punishable under Art. 315,
obligation contracted by him, shall sell, mortgage, 316 and 317, it is punishable under Art. 318 –
or, in any other manner, encumber the real Other Deceits.
property or properties with which he guaranteed
the fulfillment of such obligation. So any other form of deprivation would be under Art. 318 –
Other Deceits.
Q: What if A is a debtor, in order to defraud his creditor, A
as the debtor, has an obligation which is due and Q: What about Madam Auring? She tells fortune. What if a
demandable. He has only 1 property – a property in Quezon person went to Madam Auring asking for his fortune and
City – which can be attached by his creditor. Now, in order what is in his future, and based on the readings of the card,
to defraud his creditor, he executed a fictitious contract Madam Auring said “You will get sick on this particular day.
selling the said property to B with the intention to defraud You will die upon this particular day.” Because of this, the
his creditor. What is the crime committed by A? Is A liable person could no longer sleep. He has been thinking about his
for Fraudulent Insolvency under Art. 314 or is A liable of sickness and his death. Can he file a case against Madam
other forms of swindling under Art. 316? Auring for Other Deceits under Art. 318?
A: A is liable of other forms of swindling under A: Yes, he can file a case of Other Deceits against
Art. 316. Because the contract that he executed in favor Madam Auring. Because obviously for profit or for
of B is only a fictitious contract. It is not a real contract gain, Madam Auring tells his fortune, which is obviously
of sale conveying his property to B. an erroneous one. How can someone predict the death
of a person? How can someone predict when a person
Q: What if A is a debtor, in order to defraud his creditor, A will be ill or sick? Obviously it is done in order to
as the debtor, has an obligation which is due and defraud this person and this person had been damaged
demandable. He has only 1 property – a property in Quezon because this person could no longer sleep and can think
City – which can be attached by his creditor. To defraud his only of his sickness and death.
creditor what he did was, he sold the said property to B via a
deed of absolute sale, his intention to defraud his creditor.
What crime if any is committed by A? CHAPTER SEVEN – CHATTEL MORTGAGE
A: A committed Fraudulent Insolvency. The ARTICLE 319 – REMOVAL, SALE OR PLEDGE OF
contract is a real transfer of property from A to B. It is MORTGAGED PROPERTY
not a fictitious contract.
ACTS PUNISHABLE
If it is a fictitious contract – the crime committed is
other forms of swindling under Art. 316 ⮚ Any person who shall knowingly remove any personal
property mortgaged under the Chattel Mortgage Law to
If it is not - the crime committed is Fraudulent any province or city other than the one in which it was
Insolvency located at the time of the execution of the mortgage,
ARTICLE 317 – SWINDLING A MINOR without the written consent of the mortgagee, or his
executors, administrators or assigns.
Who is liable? ⮚ Any mortgagor who shall sell or pledge personal
Any person who taking advantage of the inexperience or property already pledged, or any part thereof, under the
emotions or feelings of a minor, to his detriment, shall terms of the Chattel Mortgage Law, without the consent
induce him to assume any obligation or to give any of the mortgagee written on the back of the mortgage
release or execute a transfer of any property right in and noted on the record hereof in the office of the
consideration of some loan of money, credit or other Register of Deeds of the province where such property
personal property, whether the loan clearly appears in is located.
the document or is shown in any other form. CHAPTER EIGHT – ARSON AND OTHER CRIMES
ARTICLE 318 – OTHER DECEITS INVOLVING DESTRUCTIONS
Who is liable? ARTICLES 320 – 326 speak about Arson. These had
already been repealed by PD 1613 – THE LAW ON
⮚ Any person who, for profit or gain, shall interpret ARSON. However, although Articles 320 – 326 had been
dreams, make forecasts, tell fortunes, or take repealed by PD 1613, Article 320 has been brought back
advantage of the credulity of the public in any other into life by RA 7659.
similar manner.

174 |
intention of the offender is to destroy the property

⮚ That is why, insofar Article 320, the crime is of the offended party by fire, and the offender did
Destructive Arson. And we have PD 1613 which not know that someone is inside and death results,
punishes Simple Arson or Other Cases of Arson. the crime is still simple arson. It will only qualify
☝ Do not consider Section 2 of PD 1613 which punishes the penalty to RP to death.
Destructive Arson because Destructive Arson is Q: A killed B while sleeping. The crime committed is
under Article 320 of the RPC as it has been brought murder. In order to conceal the crime, A burned the house.
back by RA 7659.
A: This time, there are two crimes committed. A is
Q: What if there was this maid, the want to go to the liable for Murder qualified by treachery for
province, let’s say it was Christmas time. He asked killing B and Arson, in order to hide the crime
permission from the master of the house, the master of the committed. The arson committed is destructive arson,
house did not allow the maid to go to her province. So the as it is defined by the law.
maid got mad. To make revenge, she burned the house at
night and left the house. However, the master of the house ARSON is the malicious destruction of the property by
together with his family were not awakened by the said means of fire.
burning and so they all died by reason of the said fire. Not 2 KINDS OF ARSON:
only that, the said burning of the house of the master also
affected 5 nearby houses. All in all, 5 houses were burned by 1. DESTRUCTIVE ARSON – punished under Art. 320
the said fire and also the master and said members of the of the RPC as amended by RA 7659
family all died in the course of the said fire. What crime 2. SIMPLE ARSON – punished under PD 1613
is/are committed by the said helper? particular Section 3
A: The helper is liable only for the crime of If the problem given is arson, intent of offender must be
Simple Arson Other Cases of Arson under PD determined.
1613 – Sec. 3. The fact that the master died would only If intent is to kill Y by burning his nipa hut, the crime is
qualify the penalty imposable of her. But, it will not murder
bring about the crime of Arson with Homicide. There is
no such crime as Arson with Homicide or Arson with X burned the house of Y. He did not know there was someone
Multiple Homicide. inside and that someone died, crime is arson because the
intent to destroy someone’s property by fire.
⮚ Why is it that the crime committed is
only Simple Arson or Other Cases of QUERIES FROM CLASS & PROSEC’S ANSWER:
Arson? Q: What if the intentional burning was committed against
■ The crime committed is Simple Arson or Other one’s own house, and before the fire was able to spread to
Cases of Arson because the fact that what the other houses within the area, he actively put out the fire. His
maid burned is an inhabited house or dwelling, intention was only to burn hiw own house. Would he have
the crime is only Simple Arson or Other Cases committed simple arson? And if he was convicted of such,
of Arson. would it not be violative of his property right to dispose of
Destructive Arson is found under Art 320 of the his own property?
RPC while Simple Arson and other arson is A: He who burns his own house or dwelling is liable of
repealed by PD 1613 repealing Article 320 to 326 B Simple Arson, even if the fire did not spread to other houses
of the RPC. Even though there are five deaths, the or properties because such act of burning still exposes
deaths will be absorbed in the crime of arson and danger on another person’s life and property.
will only qualify the penalty to death. The maid is
only liable for simple arson, because what has been No, (You have a wrong perception of right to dispose one’s
burned is an inhabited dwelling. For as long as the property) Such right to dispose one’s property means the
thing burned is an inhabited house or dwelling, the right of the owner to SELL, GIVE, DONATE, RENT, LEASE,
crime committed is simple arson. If in the course of AND MORTGAGE one’s property; not to destroy or burn it.
burning the dwelling, homicide results, the crime Q: What crime is committed if I burn the bag of my brother?
committed is still arson.
A: If there is deliberate intent to burn or cause damage on
If the intention is to kill the offended party, and the the bag, crime if malicious mischief (Art. 327). But if the
means employed is through burning the house, the brothers are living together, no criminal liability; only civil
crime committed is MURDER. If however, the liability. (Art. 332). If there is NO DELIBERATE INTENT to

175 |
burn or cause damage on the bag, there is no crime Q: What if in the course of the commission of Destructive
committed. Only civil action for damages may be filed. Crime Arson, someone died. The airplane was burned. The purpose
is NOT ARSON because arson, whether under Art. 320 or PD was to burn the said airplane. Unknown to the offender,
1613, contemplates the burning of public or private someone was inside the said airplane and the said person
structures. died. What crime is committed by the offender?
---- A: The offender is liable for Destructive
Arson under Article 320. The fact that someone
ARTICLE 320 – DESTRUCTIVE ARSON
died will not give rise to a complex crime. The crime
HOW IS DESTRUCTIVE ARSON COMMITTED? committed is only Arson.
1. One or more buildings or edifices, consequent to After the last paragraph of Article 320, it is stated that
one single act of burning, or as a result of – if as a consequence of the commission of any of the acts
simultaneous burnings or committed on several or constituting Arson, death results, then, the mandatory
different occasions; penalty of death shall be imposed. So here, the fact that
2. Any building of public or private ownership, someone died in the course of the commission of Destructive
devoted to public in general, or where people Arson would mean that the penalty to be imposed of the said
usually gather or congregate for a definite purpose offender would be death. But, the crime committed is only
such as but not limited to official government Arson. There is no such thing as Arson with
function or business, private transaction, Homicide.
commerce, trade workshop, meetings, conferences,
ANTI-ARSON LAW (P.D. 1613)
or merely incidental to or for a definite purpose
such as but not limited to motels, transient SIMPLE ARSON OR OTHER CASES OF ARSON IS
dwellings, public conveyances or stops, or COMMITTED IF WHAT HAS BEEN BURNED IS:
terminals, regardless of whether the offender had
1. Any building used as offices of the government or
knowledge that there are persons in said building
any of its agencies;
or edifice at the time set on fire and regardless also
2. Any inhabited house or dwelling;
of whether the building is actually inhabited or not.
3. Any industrial establishment, shipyard, oil well or
3. Any train, locomotive, ship or vessel, airship or
mine shaft, platform or tunnel;
airplane, devoted to transportation or conveyance,
4. Any plantation, farm, pasture land, growing crop,
or for public use, entertainment and leisure;
grain field, orchard, bamboo grove or forest;
4. Any building, factory, warehouse installation and
5. Any rice mill, sugar mill, cane mill, or mill central;
any other appurtenances thereto, which are
6. Any railway or bus station, airport, wharf, or
devoted to the service of public utilities;
warehouse.
5. Any building the burning of which is for the
purpose of concealing or destroying the evidence of Q: A plantation was burned. While the plantation was
another violation of law, or for the purpose of burning, the field worker was sleeping and the field worker
concealing bankruptcy or defrauding creditors or to died as a result of the said burning of the plantation. What
collect from insurance. crime is committed by the offender?
There is also destructive arson in the following A: The crime committed by the offender is only
instances: Simple Arson or Other Cases of Arson under PD
1613.
1. When the arson is committed by 2 or more persons,
regardless of whether their purpose is merely to ⮚ What about the fact the someone died?
burn or destroy the building or the burning merely ■ Under Section 5 of PD 1613, if by reason or on
constitutes an overt act in the commission of occasion of the said arson, death results, the
another violation of the law; penalty shall be reclusion perpetua to death.
2. When any person shall burn: Therefore, the crime committed is only
a. Any arsenal, shipyard, storehouse or Arson. You do not complex it with Homicide. But
military power or fireworks factory, the fact that someone died, the penalty is qualified.
ordinance, storehouse, archives or general The penalty is increased to reclusion perpetua to
museum of the Government; or death.
b. In an inhabited place, any storehouse or
factory of inflammable or explosive PENALTY FOR DESTRUCTIVE ARSON: RECLUSION
materials. PERPETUA TO DEATH

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■ If as a result of the commission of any acts of A: Some legal luminaries say, the crime committed is
destructive arson, death results, the penalty should frustrated arson. Other legal luminaries say there is no
be death. such crime as frustrated arson.
PENALTY FOR SIMPLE ARSON: RECLUSION Pros. Garcia is on the second luminary. She believes that
TEMPORAL TO RECLUSION PERPETUA there is no such crime as frustrated arson because arson
is the burning of the property of another by means of
■ Under Section 5 of PD 1613, if by reason or on
fire. The moment any part of the said structure or
the occasion of simple arson, death results, the
building is burned, arson is already consummated. If no
penalty is reclusion perpetua to death.
part of the said structure or building is burning, it is only
■ Therefore, whatever may be the crime may be, if by
Attempted Arson. There cannot be a circumstance of
reason of said arson, death results, it will
frustrated arson.
aggravate the crime of arson and the homicide
will be absorbed in the arson. Because how did a crime frustrate a felony? A
frustrated felony is committed when the offender has
Q: What if a person wants to kill B. So in order to kill B, B
performed all the acts of execution that would produce
was sleeping inside his nipa hut, A burned the said nipa hut
the felony but nevertheless the felony was not produced
and so, B died while sleeping. What crime is committed by
by reason of the causes independent of the will of the
A?
perpetrator. The offender has performed all the acts of
A: A committed the crime of murder. His execution in the crime of arson, for the offender to be
intention is to kill B by burning. said that he had performed all the acts of execution, it is
necessary that the building or the property has already
Q: If A went inside the house of B and then he saw B and
been burned, otherwise, it cannot be said that he has
stabbed B several times. B died. Thereafter, to conceal the
performed all the acts of execution.
killing of B, a burned the house of B. it was a total burn.
So by the definition of a frustrated felony, she is with the
A: This time, A committed two crimes. Murder
other legal luminaries who say that there is no such
for killing B treacherously and Arson, because he
thing as frustrated arson. Because the moment any
burned the house of B in order to conceal the
part of the property has been burned, it is
commission of the said act of killing. The arson
already considered as consummated arson.
committed is simple arson.
ARTICLE 327 – MALICIOUS MISCHIEF
Q: What if A wanted to get revenge at B so he decided to burn
the property of B. in the course thereof, a servant was Who are liable for malicious mischief?
sleeping inside. What crime is committed by A?
Any person who shall deliberately cause the property
A: A is liable only for Arson. The fact that someone of another any damage not falling within the terms of
is killed in the course of the said Arson, the crime the next preceding chapter shall be guilty of malicious
committed is only arson. And the fact that the said mischief.
servant died while the said burning took place, you only
Malicious Mischief – is the willful damaging of another’s
qualify the penalty, the crime committed is Arson and
property for the sake of causing damage due to hate, revenge
the penalty is qualified to reclusion perpetua to
or other evil motive.
death.
If the intention of the offender is to cause damage in the
Q: What if A wanted to burn the property of B. So what he
property of another, by any means outside arson, is
did was he poured gas on the said walls of the property.
malicious mischief.
However, before he could set the property on fire. Someone
saw him and so, he was arrested. What crime is committed? It is a crime which can only be committed by means of intent.
There must be deliberate intent to cause damage to the
A: The crime committed is Attempted Arson.
property of another, because if there is no intent to cause
Q: What if A placed rags near the property of B. His damage in the property, the liability will be damages only;
intention is to burn the property of B. and then he placed civil liability and not criminal liability.
gasoline on the said rags and set fire on the said rags. The
In order for a crime to be considered as malicious mischief,
rags were burning. However, before said fire could have
it is necessary that there must be DELIBERATE INTENT to
burned any of the structure of the house, A was already
cause damage to the property of another. Absent that
arrested. What crime is committed?
deliberate intent to damage, to injure the property of
another, it cannot be considered as malicious mischief. The

177 |
said offender will only be liable for damages for causing ARTICLE 331 – DESTROYING OR DAMAGING
damage to the property of another; civil liability and not STATUES, PUBLIC MONUMENTS OR PAINTINGS
criminal liability. Or, if there was negligence, imprudence on
Who is liable?
his part, it would be reckless imprudence or simple
negligence causing damage to property. But for malicious ⮚ Any person who shall destroy or damage statues or
mischief to arise, it is necessary that there must be deliberate any other useful or ornamental public monument.
intent to damage the property of another, only for the (penalty of arresto mayor in its medium period to
purpose of damaging it or for the purpose of invoking prision correccional in its minimum period)
revenge. ⮚ If what has been damaged are only private
Q: A and B were fighting, and in the course of their fight, A monuments or private paintings, it is only
fell on the floor and the floor was damaged. ordinary malicious mischief.
⮚ Any person who shall destroy or damage any useful
A: The liability will only be a civil action for or ornamental painting of a public nature shall
damages. No deliberate intent to damage property. suffer the penalty of arresto menor or a fine not
ARTICLE 328 – SPECIAL CASES OF MALICIOUS exceeding 200 pesos, or both such fine and
MISCHIEF/QUALIFIED MALICIOUS MISCHIEF imprisonment, in the discretion of the court.
(Penalty is qualified) CHAPTER TEN – EXEMPTION FROM CRIMINAL

LIABILITY IN CRIMES AGAINST PROPERTY
1. Causing damage to obstruct the performance of
public functions; ARTICLE 332 — PERSONS EXEMPT FROM
2. Using poisonous or corrosive substances CRIMINAL LIABILITY.
3. Spreading any infection or contagion among cattle No criminal, but only civil liability, shall result from the
4. Causing damage to the property of the National commission of the crime of THEFT, SWINDLING (or
Library or to any archive or registry, waterworks, estafa) or MALICIOUS MISCHIEF committed or
road, promenade, or any other thing used in caused mutually by the following persons:
common by public
⮚ Spouses, ascendants and descendants, or relatives
ARTICLE 329 – OTHER MISCHIEFS
by affinity in the same line.
⮚ Other damage would constitute ordinary malicious ⮚ The widowed spouse with respect to the property
mischief. which belonged to the deceased spouse before the
⮚ The mischiefs not included in the next preceding article. same shall have passed into the possession of
another; and
ARTICLE 330 – DAMAGE AND OBSTRUCTION TO
⮚ Brothers and sisters and brothers-in-law and
MEANS OF COMMUNICATION
sisters-in-law, if living together.
⮚ What is punished is the damage and obstruction to ☝ The exemption established by this article shall not be
means of communication. applicable to strangers participating in the
commission of the crime.
Who is liable?
☝ This exempting circumstance will not apply to
⮚ The penalty of prision correccional in its medium strangers. If the strangers connived with any the
and maximum periods shall be imposed upon any persons mentioned in Article 332, so in that case, the
person who shall damage any railway, stranger is liable, only the enumerated persons is not
telegraph or telephone lines. criminally liable.
⮚ If the damage shall result in any derailment of cars, Intestate Estate of Manolita Gonzales Vda. De
collision or other accident, the penalty is qualified Carungcong v. People:
to prision mayor, without prejudice to the
criminal liability of the offender for the other The Supreme Court said, this absolutory cause or
consequences of his criminal act. exempting circumstance under Article 332 applies
⮚ For the purpose of the provisions of the article, the exclusively to simple crimes of theft, swindling (or
electric wires, traction cables, signal system estafa) and malicious mischief. The exemption under
and other things pertaining to railways, shall Article 332 will not arise, it will not absorb the
be deemed to constitute an integral part of a railway offender if the crime committed is already a complex
system. crime. In this case, the son-in-law of a Japanese
National committed estafa through falsification of

178 |
a public document. Because the special power of

attorney was falsified. Since the crime committed was
estafa through falsification of a public document, the
Supreme Court said, the said son-in-law can be held
criminally liable. So this apply only to simple cases of
theft, swindling (or estafa) and malicious mischief. The
son in law a Japanese National, by means of deceit made
his mother in law sign a SPA, said SPA was used to sell
the property of Tagaytay. The mother died without
receiving the proceeds of the sale. The daughter of the
mother wanted to file a case against the son-in law. Note
that the wife of the Japanese national is already
deceased. Does article apply in this case where the
crime committed is estafa even if the wife of the
Japanese National is already dead? The relationship by
affinity is still existing. The purpose is to ensure
harmony within the family. Article 332 will still apply.
The son-in-law may be prosecuted. The crime is
estafa through falsification of public document. The
crime committed is the complex crime of estafa
through falsification of public document. Article 332
will not apply though there is a relationship because the
crime is already complexed.
Based on jurisprudence:
The word SPOUSES include paramours and
mistresses, and other wives.
The word ASCENDANTS include step-father and
step mother.
The word DESCENDANTS include step children,
adopted children and natural children.
☝ The reason is that the exempting circumstance, the

absolutory cause under Article 332 is made in order to
insure HARMONY within the family.

179 |
TITLE ELEVEN reasonable doubt that A represented herself to be single and

that B believed that she was indeed single.
CRIMES AGAINST CHASTITY
A: The wife can be convicted for adultery and the lover
(Articles 333 – 346)
has his defense that he did not know that the woman is
CHAPTER ONE – ADULTERY AND CONCUBINAGE married. It is a matter of defense.
ARTICLE 333 – WHO ARE GUILTY OF ADULTERY ☝ Both shall still be prosecuted. Otherwise, the case will
not prosper under Art. 344
Adultery is committed by any married woman who shall
have sexual intercourse with a man not her husband and by
the man who has carnal knowledge of her knowing her to be ⮚ If wife is abandoned by her husband without
married, even if the marriage be subsequently declared void. justification, mitigated
⮚ Adultery is a crime of consequence, so there is no
Adultery shall be punished by prision correcional in its attempted or frustrated stage.
medium and maximum periods. o It is always in the consummated stage.
If the person guilty of adultery committed this offense while o It is an instantaneous crime –
being abandoned without justification by the offended consummated upon the carnal union of the
spouse, the penalty next lower in degree than that provided wife with the lover of the wife.
in the next preceding paragraph shall be imposed. ⮚ Adultery may be proven by circumstantial evidence.
⮚ The penalty shall be mitigated; therefore, it is akin The husband was working in Saudi for 10 years, and upon
to a mitigating circumstance. reaching home, he sees his wife pregnant for 9 months,
obviously, if the wife is not a victim of rape, the wife
Offender Legally Married Woman committed adultery.
Offended party Husband ARTICLE 334 – CONCUBINAGE
To whom shall the case be Any husband who shall keep a mistress in the conjugal
Wife and Lover
filed dwelling, or shall have sexual intercourse, under scandalous
Only by the Offended circumstances, with a woman who is not his wife, or shall
Who shall file cohabit with her in any other place, shall be punished by
Husband
prision correccional in its minimum and medium periods.
ELEMENTS:
The concubine shall suffer the penalty of destierro.
1. That the woman is married
ELEMENTS:
2. She has sexual intercourse with a man who is not her
husband 1. The man must be married
3. As regards the man whom she has sexual intercourse, 2. That he committed any of the following acts:
he must know her to be married a. Keeping a mistress in the conjugal dwelling;
b. Having sexual intercourse under scandalous
Adultery is a private crime. It can only be prosecuted by the
circumstances;
offended spouse.
c. Cohabiting with her in any other place
⮚ Without the complaint filed by the offended spouse, no 3. The woman must know that the man must be married
crime. Therefore, the state cannot, on its own, file a
Legally Married
case of adultery against the wife. Offender
Husband
If the lover does not know that the woman is married, still
Offended party Wife
the husband should file the case on both of them.
To whom shall the case
⮚ It is a matter of defense only on the lover to say that “I Husband and Concubine
be filed
do not know that she is married.
⮚ So, there are cases wherein only one is convicted and Only by the Offended
Who shall file
the other one is acquitted. Wife
Q: A, the wife had sexual intercourse with B, the lover. H,

the husband can file a case for adultery against the both of
Just like adultery, Concubinage is a private crime.
them. During trial of the merits, B was able to prove beyond

180 |
⮚ The wife must initiate the filing of the complaint ⮚ When the offended party consented to the acts
because it is a private crime. of lasciviousness
⮚ Without the complaint, the state cannot, on its own, file
ACTS OF LASCIVIOUSNESS – refers to acts which is
the case of concubinage
prompted by lust or lewd design.
⮚ The wife must file the case against both the husband and
the concubine and is married. ARTICLE 336 – ACTS OF LASCIVIOUSNESS
UNDER CIRCUMSTANCES OF RAPE
Q: What if the concubine does not know that the husband is
married? Any person who shall commit any act of lasciviousness upon
other persons of either sex, under any of the circumstances
A: It is a matter of defense on the part of the mentioned in the preceding article, shall be punished by
concubine that she was also deceived. She did prision correccional.
not know that the man is married. But she also must
be prosecuted. ELEMENTS:
FIRST ACT: KEEPING A MISTRESS IN THE 1. That the offender commits any act of lasciviousness
CONJUGAL DWELLING or lewdness;
2. That the act of lasciviousness is committed against a
⮚ The conjugal dwelling refers the house of the husband person of either sex;
and the wife 3. That it is done under any of the following
⮚ Husband brought her to the house circumstances:
a. Using force or intimidation
SECOND ACT: HAVING SEXUAL INTERCOURSE
b. When the offended party is deprived of reason
UNDER SCANDALOUS CIRCUMSTANCES
or otherwise unconscious
⮚ The best witnesses are the neighbors of the husband. It c. By means of fraudulent machination or grave
must be in such a manner that the neighbors are abuse of authority
shocked. d. When the offended party is under 12 years of
age or demented
Q: What if a married man who had sexual intercourse with
⮚ It is committed with unchaste design and done under
a woman inside a motel. Is the man liable for concubinage?
circumstances of rape.
A: NO, because it was done in secrecy. In order
Offender – any person
for the husband to be liable for concubinage by having
sexual intercourse with a woman who is not his wife, it Offended party – any person
is necessary that the sexual intercourse was committed
Q: Offender is the woman while the offended party is a man.
under scandalous circumstances. Their sexual
The man was being held by 2 other men when the woman
congress must set a bad example, misconduct among
undressed the man, touched the private parts of the man.
the people in the neighborhood.
What crime is committed?
THIRD ACT: COHABITING WITH A WOMAN IN
A: Acts of Lasciviousness under circumstances
ANY OTHER PLACE
of rape under Art. 336. Under Art. 336, the
⮚ Cohabitation means that the husband and the offender and the offended party may be any person.
concubine were living together as if they were husband The man was held by other two men and the act of the
and wife without the benefit of marriage. woman was prompted by lust or lewd design.
Therefore, it is acts of lasciviousness under
CHAPTER TWO – RAPE AND ACTS OF circumstances of rape.
LASCIVIOUSNESS
Q: In a school, the woman after unbuttoning the pants of the
☝ Art. 335 - RAPE IS ALREADY REPEALED. Rape is no said man, the woman forcibly entered the penis of the man
longer a private crime. It is already a public crime and inside her mouth. Is the crime committed rape by sexual
located under title 8, crimes against persons. assault?
TWO KINDS OF ACTS OF LASCIVIOUSNESS: A: No, but it is acts of lasciviousness. If you look
I. Acts of Lasciviousness under circumstances of rape at rape by sexual assault, it is committed by “the man
under Art. 336 inserting his penis into another persons’ mouth or
II. Acts of Lasciviousness under circumstances of orifice.” It is the offender who must insert his penis
seduction under Art. 339 into the mouth or orifice. In the problem, it is not the

181 |
man who inserted his penis. It was the woman who Offended party must be:
forcibly inserts the penis of the man inside her mouth.
Therefore, crime committed is only acts of ⮚ Virgin
lasciviousness, because in rape by sexual assault, it is ⮚ over 12 under 18 years of age
the offender who has the penis and inserted it forcibly
to another. ☝ If the victim is under 12 years of age, even if there was
consent, it is statutory rape.
CHAPTER THREE – SEDUCTION, CORRUPTION
OF MINORS AND
WHITE SLAVE TRADE Offender must be:
TWO KINDS OF SEDUCTION: 1. Person in public authority

2. priest
1. Qualified Seduction 3. house servant
2. Simple Seduction 4. domestic
5. teacher
☝ In seduction, whether qualified or simple, there must 6. guardian
always be sexual intercourse. The offended party had 7. any person who has custody of the seduced
consented to such sexual intercourse because she was woman
seduced and such was done by means of abuse of
authority or confidence or by deceit. VIRGINITY does not refer to physical virginity. It would
suffice that the woman is not married, she is single and living
ARTICLE 337 – QUALIFIED SEDUCTION a chaste life. The law presumes that she is a virgin.
The seduction of a virgin over twelve years and under ☝ sexual intercourse is an element of any kind of
eighteen years of age, committed by any person in public seduction. It is committed with the abuse of authority,
authority, priest, home-servant, domestic, guardian, confidence or relationship.
teacher, or any person who, in any capacity, shall be
entrusted with the education or custody of the woman II. Seduction of a sister by her brother or descendant
seduced, shall be punished by prision correccional in its by her ascendant, regardless of her age and reputation.
minimum and medium periods. Offended party must be: Sister or Descendant
The penalty next higher in degree shall be imposed upon any Offender must be: Brother or Ascendant
person who shall seduce his sister or descendant, whether or
not she be a virgin or over eighteen years of age. ⮚ The brother or ascendant had sexual intercourse with
the sister or descendant, which is committed with
Under the provisions of this Chapter, seduction is
abuse of relationship.
committed when the offender has carnal knowledge of any
of the persons and under the circumstances described ⮚ Age does not matter. Even if the sister is 18 and above,
herein. still, seduction can still be committed.
⮚ Status in life is not an element. Even if she is a married
TWO KINDS OF QUALIFIED SEDUCTION: woman, still, there can be seduction. (Virginity does
I. Seduction of a virgin over 12 years of age and under not matter)
18 years of age by persons who abuse their authority or ARTICLE 338 – SIMPLE SEDUCTION
confidence reposed in them
The seduction of a woman who is single or a widow of good
ELEMENTS: reputation, over twelve but under eighteen years of age,
1. The offended party must be a virgin committed by means of deceit, shall be punished by arresto
2. She must be over 12 and under 18 years of age mayor.
3. The offender is a person in public authority, priest, ELEMENTS:
house servant, domestic, teacher, guardian or any
person, in any manner, shall be entrusted with the 1. Offended party is over 12 and under 18 years of age
education or custody of the woman seduced 2. She must be of good reputation, single or widow
4. The offender had sexual intercourse with of the said 3. Offender has sexual intercourse with her
offended party 4. It is committed by means of deceit.
5. There is abuse of authority, confidence or
relationship on the part of the offender

182 |
In case of simple seduction, the offended party must be a Any person who shall promote or facilitate the
WOMAN who is single or widow of good reputation, over prostitution or corruption of persons underage to satisfy
12 but must be under 18 years of age. the lust of another, shall be punished by prision mayor,
and if the culprit is a pubic officer or employee,
Offender – any person who had sexual intercourse with
including those in government-owned or controlled
her by means of deceit.
corporations, he shall also suffer the penalty of
DECEIT- the offended party gave herself to the man temporary absolute disqualification. (As amended by
because of the latter’s promise. It may come in the form of Batas Pambansa Blg. 92).
inducement, a false promise.
Corruption is committed by persons who: Promote or
Q: In order to have sexual congress with the woman, the facilitate the prostitution or the corruptions of minors in
man promised to marry the woman. The woman who order to satisfy the lust of another
believed the promise gave herself to the man. What crime is
⮚ It is committed by pimps, or more commonly
committed if any by the said man?
known as “Bugaw”
A: Simple seduction. In order to induce the woman
Q: If the offender is a public officer or employee, including
to give up her virginity was due to the deceit employed.
those in the government owned-controlled corporations?
Q: The woman committed sexual congress with a married
A: there is an additional penalty of temporary absolute
man because the man promised that he will marry the
disqualification
woman.
ARTICLE 341 – WHITE SLAVE TRADE
A: The SC said that there is no seduction. The fact that
the woman knows that the man is married, the man The penalty of prision mayor in its medium and maximum
cannot marry her. There is no deceit. period shall be imposed upon any person who, in any
manner, or under any pretext, shall engage in the business
ARTICLE 339 – ACTS OF LASCIVIOUSNESS
or shall profit by prostitution or shall enlist the services of
UNDER CIRCUMSTANCES OF SEDUCTION (WITH
any other for the purpose of prostitution (As amended by
THE CONSENT OF THE OFFENDED PARTY)
Batas Pambansa Blg. 186.)
The penalty of arresto mayor shall be imposed to punish
PUNISHABLE ACTS:
any other acts of lasciviousness committed by the same
persons and the same circumstances as those provided in I. Engaging in the Business of Prostitution
Articles 337 and 338. II. Shall Profit by Prostitution
III. Enlist the services of any woman for the purpose of
⮚ This is done with the consent of the offended party
prostitution
⮚ This is under circumstances of seduction.
Chapter Four – ABDUCTION
Offender: Man
TWO KINDS OF ABDUCTION:
Offended Party: Woman
a. Forcible Abduction
In seduction, the offended party is always the woman b. Consented Abduction
ELEMENTS: ARTICLE 342 – FORCIBLE ABDUCTION
1. Offender commits acts of lasciviousness or ABDUCTION of any woman against her will and with lewd
lewdness designs shall be punished by reclusion temporal.
2. Acts were committed upon a woman who is a
virgin, or single or widow of good reputation, under The same penalty shall be imposed in every case, if the
18 years of age but over 12 years, or a sister or female abducted be under twelve years of age.
descendant regardless of her reputation or age
Forcible Abduction – abduction, taking away, or carrying
3. Offender accomplishes the acts by:
away of a woman against her will and with lewd design.
a. Abuse of authority
b. Abuse of confidence ⮚ Woman can be any person.
c. Abuse of relationship ⮚ Regardless of age, virginity, civil status. They
d. Means of deceit are not material.
ARTICLE 340 – CORRUPTION OF MINORS ⮚ For as long as the taking away is done with lewd
design and against her will.

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☝ Sexual intercourse is NOT an element. her in the house of B’s parents and had carnal knowledge
☝ If by reason of or on the occasion of forcible abduction, with her. He was later arrested and charged with two
the man had sexual intercourse with the woman, it may informations – qualified rape and forcible abduction with
result in a COMPLEX CRIME OF RAPE WITH rape. Are the charges correct?
FORCIBLE ABDUCTION. A: No. The accused is not liable of forcible abduction
Q: Nena was waiting near the gate of her house, while with rape because the accused is liable of two counts of
waiting for her father. Suddenly here comes Pedro. Pedro qualified rape punishable by death penalty. The first act
abducted her. Forcibly took her away from her house and is definitely a qualified rape because of the minority of
brought her inside his house. The said taking was done with the victim and the relationship between them. Insofar
lewd design. So Pedro held Nena inside her house for 7 days. as the second act is concerned, SC said that it is not
Pedro said, “Marry Me”, Nena said, “I will never marry you”. forcible abduction with rape but also another kind of
By reason thereof, Pedro raped Nena, and during the 7 days qualified rape because the obvious intent of the accused
when Nena was held in captivity inside the house of Pedro, in abducting the girl is to rape her and as such, the
Pedro rape her one time a day. There were 7 acts of rape. forcible abduction was mere incidental to achieve his
What crime/s is/are committed by Pedro? intent therefore abduction is absorbed.
A: The crimes committed by X are 7 crimes.

Pedro shall be charged by 7 informations. 1 crime
QUESTION FROM QUIZ (1A ’19-’20)
forcible abduction with rape and 6 crimes of distinct
and separate charges of rape. One act of sexual Tom, a carpenter, found Lala, a unit-owner in the condo
intercourse constitutes one charge. Here, only 1 rape bldg where he works, sexy & attractive. One night, Tom
can be complexed with forcible abduction. It is a saw Lala alone. He grabbed & boxed Lala, covered her
complexity of crimes under Art. 48, Book I of the mouth w/ a piece of clothe,& w/ lewd designs, carried
Revised Penal Code. It is not a special complex crime her to a vacant house. Tom tied Lala to a post & would
because it is not the law that combines the crime but just stare at her. But at 3:00am, Tom kissed &
merely a complex crime since one offense is necessary undressed her; & despite Lala's pleas & cries, Tom had
to commit the other offense. carnal knowledge of Lala twice. What crime/s is/are
committed by Tom? Explain.
☝ only one forcible abduction is necessary to commit
the crime of rape and only 1 rape is necessary to ANSWER:
bring about complex crime of forcible abduction Tom is liable of 2 crimes: the complex crime of Rape
with rape. through Forcible Abduction and one count of rape.
Q: In the same case, the Nena was inside the house of the Forcible Abduction is taking away of a woman against
Pedro. Pedro tried to rape Nena, he attempted to rape, her will and with lewd designs. In the case, tom’s act of
however, Nena was able to put up a fight and Nena kicked grabbing and taking away Lala were at the outset with
Pedro, as a result, she ran outside the house. What crime/s lewd designs. Hence, Forbicle abduction. When Tom
is/are committed by Pedro? had carnal knowledge of Lala against her will and with
A: 2 crimes are committed, Forcible Abduction and force, as she was tied, rape is committed. Since forcible
Attempted Rape. BUT one charge can be filed which is abduction is a necessary means to commit rape, a
FORCIBLE ABDUCTION. The attempt to rape complex crime of Rape through Forcible abduction
Nena is only the manifestation of the lewd design arises.
which is an element of forcible abduction. Therefore, Tom’s second act of Rape will bring about a separate
he can only be charged of Forcible abduction. and distinct charge of rape as forcible abduction is no
⮚ Attempted rape was absorbed in the element of lewd longer necessary to consummate this other act.
design. Q: What if, upon kissing & undressing Lala, Tom
⮚ No such thing as Forcible Abduction with Attempted discovered that Lala is a man. Angry, he boxed & left
Rape because the attempt to rape is within the meaning Lala, tied & naked. When Tom returned drunk, he
of lewd design, therefore, absorbed in forible abduction. kissed Lala & inserted his penis into Lala's anal orifice
Q: B, brother-in-law of Y, a 15 year-old girl had carnal twice. Would your answer be the same? Explain.
knowledge with her in her bedroom despite her pleas. ANSWER:
Several days thereafter, on her way to school, she was
suddenly grabbed by B and placed in a tricycle, and brought

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This time Tom is liable of 3 crimes: Acts of A: Consented Abduction, there was taking away of
Lasciviousness, and 2 counts of Rape by Sexual Assault. the woman with lewd design and with her consent. In
the course thereof, the man raped the girl, because force
The elements of Acts of Lasciviousness under Art. 336:
was used in the sexual intercourse, therefore there is
1.) the accused commits any act of lewdness; 2.) it is
another crime of rape. You have a COMPLEX CRIME
done by using force or intimidation; 3.) the offended
OF CONSENTED ABDUCTION WITH RAPE.
party is another person of either sex.
Abduction was a necessary means in order to commit
Here, Tom carried away Lala, who turned out to be “gay” rape.
with lewd designs. His acts of kissing and undressing
The girl was 15 and the boyfriend was 25. The said boyfriend
Lala, while he was tied were acts of lewdness driven by
was able to take away the girl with her consent. The parents
sexual desire, done with force. Hence, Acts of
of the girl filed a case. Per Ma’am, she was able to handle a
Lasciviousness.
similar case where the girl was 16 and the man was above 18.
When upon returning, Tom kissed Lala, still tied and The parents of the girl do not like the man so the lovers
naked, and inserted his penis into Lala’s anal orifice eloped and lived in the house of the man. The mother filed a
twice, he committed 2 counts of Rape by sexual assault. case of consented abduction. During the P.I., the said girl
loved the man and even if the mother will take her away from
the man, she will always return to the man. Also, the woman
ARTICLE 343 – CONSENTED ABDUCTION has keys of the house of the man. Per ma’am the man was
not at fault because it was always the woman who would go
The abduction of a virgin over twelve years and under
to the man’s house. So she dismissed the case.
eighteen years of age, carried out with her consent and with
lewd designs, shall be punished by the penalty of prision In qualified seduction and consented abduction, acts of
correccional in its minimum and medium periods. lasciviousness in circumstances of seduction: INSTANCES
WHERE VIRGINITY IS AN ELEMENT
ELEMENTS:
Note: In consented abduction, sexual intercourse is not an
1. The woman must be a virgin
element, so if after the woman ran away with the man, yet
2. She must be over 12 years but under 18 years of age
she does not want to have sexual intercourse but the man
3. The taking away must be with her consent, after
forced her and was able to succeed in having sexual
solicitation or cajolery from the offender
intercourse, the crime committed is consented abduction
4. The taking away must be with lewd designs.
with rape.
Offended party:
CHAPTER FIVE - PROVISIONS RELATIVE TO THE
⮚ She must be a virgin PRECEDING CHAPTERS OF TITLE ELEVEN
⮚ Over 12 and under 18 years of Age ARTICLE 344 – PROSECUTION OF THE CRIMES
Offender: Any Person OF ADULTERY, CONCUBINAGE, SEDUCTION,
ABDUCTION, RAPE AND ACTS OF
Taking away of the woman must be WITH HER CONSENT. LASCIVIOUSNESS
☝ It was with her consent because it was made after 1. The crimes of adultery and concubinage shall
solicitation or cajolery from the offender not be prosecuted except upon a complaint
☝ the age (12-18) is what makes the crime of abduction. filed by the offended spouse.
2. The offended party cannot institute criminal
Q: A and B were girlfriend and boyfriend. A was a virgin who
prosecution without including both the guilty
was 16 years old, the man is 25 years old. The parents did not
parties, if they are both alive, nor, in any case,
like the man. So with the inducement from the said man,
if he shall have consented or pardoned the
with the solicitation, A and B decided to elope. So the man
offenders.
carried away the said woman with her consent and with lewd
3. The offenses of seduction, abduction, rape or
design and put the woman inside his house. That night while
acts of lasciviousness, shall not be prosecuted
they were sleeping, the said man tried to have sexual
except upon a complaint filed by the offended
congress with the virgin girl. However, the girl refused.
party or her parents, grandparents, or
Nevertheless, the man by use of force, was able to have
guardian, nor, in any case, if the offender has
sexual congress with her. What crime/s is/are committed by
been expressly pardoned by the above named
B, the boyfriend?
persons, as the case may be.

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4. In cases of seduction, abduction, acts of Q: What if it is a gang rape, so let us say that 5 men raped
lasciviousness and rape, the marriage of the the said woman, how can there be acknowledgement
offender with the offended party shall because the woman suddenly became pregnant and all of
extinguish the criminal action or remit the them are convicted. All of them shall indemnify the offended
penalty already imposed upon him. The party. How about the acknowledgement?
provisions of this paragraph shall also be
A: It can be easily determined from the DNA testing.
applicable to the co-principals, accomplices
and accessories after the fact of the above- ARTICLE 346 – LIABILITY OF ASCENDANTS,
mentioned crimes. GUARDIANS, TEACHERS, OR OTHER PERSONS
ENTRUSTED WITH THE CUSTODY OF THE
WHO MAY
CRIME FILED AGAINST OFFENDED PARTY
FILE
1. The ascendants, guardians, curators, teachers and
Adultery Husband Wife and the Lover
any person who, by abuse of authority or
Husband and the confidential relationships, shall cooperate as
Concubinage Wife accomplices in the perpetration of the crimes
Concubine
embraced in chapters, second, third and fourth, of
this title, shall be punished as principals.
⮚ These are private crimes which can be prosecuted 2. Teachers or other persons in any other capacity
upon the complaint filed by the private proper party. entrusted with the education and guidance of
youth, shall also suffer the penalty of temporary
Seduction, Abduction, Acts of Lasciviousness special disqualification in its maximum period to
perpetual special disqualification.
⮚ These are private crimes which can be prosecuted 3. Any person falling within the terms of this article,
upon the complaint by: and any other person guilty of corruption of minors
1. Offended party for the benefit of another, shall be punished by
2. Parents special disqualification from filling the office of
3. Grandparents guardian.
4. Guardians in the order named above
ANTI-SEXUAL HARRASMENT ACT OF 1995
⮚ In Seduction, Abduction and even public crime of
Rape, the subsequent marriage of the offended party (R.A. 7877)
and the offender shall extinguish the liability and shall
Sexual Harassment is about power. It is the use of sex as
remove the penalty already imposed by the court
an instrument or means of domination or supremacy.
ARTICLE 345 – CIVIL LIABILITY OF PERSONS
Sexual Harassment in work, education and training-related
GUILTY OF CRIMES AGAINST CHASTITY Person
environment is committed by:
guilty of rape, seduction or abduction, shall also be
sentenced: 1. employer
2. employee
● To indemnify the offended woman.
3. manager
● To acknowledge the offspring, unless the law
4. supervisor
should prevent him from so doing.
5. agent of employer
● In every case to support the offspring. 6. teacher
The adulterer and the concubine in the case provided for in 7. instructor
Articles 333 and 334 may also be sentenced, in the same 8. professor
proceeding or in a separate civil proceeding, to indemnify for 9. coach
damages caused to the offended spouse. 10.trainor
11.any person who having authority, influence or
Civil Liability of Persons guilty of Rape, Seduction, moral ascendancy over another person
or Abduction:
⮚ shall demand, request or otherwise requires sexual
1. To indemnify the offended woman. favor from the other, regardless if whether the sexual
2. To acknowledge the offspring, unless the law favor is accepted by the offended party.
should prevent him from so doing.
3. In every case to support the offspring.

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IN WORK RELATED OR EMPLOYMENT ⮚ These remedies are CUMULATIVE. They are not
ENVIRONMENT, SEXUAL HARASSMENT IS exclusive of each other
COMMITTED WHEN: ☝ The offended party may, therefore, file all 3 cases at
1. Sexual favor is made as a condition in the hiring, the same time.
or in the employment of said individual, or in ☝ A criminal case, civil case, and administrative case
granting said individual favorable compensation, for the expulsion or suspension of the said offender.
terms, conditions, promotions, or privileges; or People v. Jacutin
the refusal to grant the sexual favor results in
limiting, segregating, or classifying the employee There was this nursing graduate who wanted to apply
which in any way would discriminate, deprive or for work and so she applied for work at the City Health
diminish employment opportunities or otherwise Office. She was interviewed, but before the interview
adversely affect said employee; end, the City Health Officer told her to meet him in a
2. The above acts would impair the employer’s rights certain place. And so, the City Health Officer went to the
or privileges under existing labor laws; or said place and picked up the girl and inside the car he
3. The above acts would result in an intimidating, asked the girl to lower down her pants to see if there are
hostile or offensive environment for the varicose veins. He said it was part of the Physical
employee. Examination to lower her pants. However, the moment
that the City Health Officer inserted his hands inside the
IN AN EDUCATION OR TRAINING genitalia of the girl, the said woman immediately pull up
ENVIRONMENT, SEXUAL HARASSMENT IS her pants. Then, the said City Health Officer to pull up
COMMITTED: her shirt. The moment the girl pull up her shirt, she
1. Against one who is under the care, custody thought it was still part of the physical examination. The
or supervision of the offender City Health Officer fondled with her breast, and that was
2. Against one whose education, training, the moment that the girl took her bag and left out of the
apprenticeship or tutorship is entrusted said car. And so, the girl wanted to file a case of violation
with the offender of R.A 7877 against the City Health Officer. It was a hard
3. When the sexual favor is made a condition struggle for the girl, the police came to the girl giving her
to the giving of a passing grade, or the money for the girl not to pursue the case. All the
granting of honors and scholarships, or the relatives of the girl convinced her not to file a case
payment of a stipend, allowance or other against the City Health Officer. So this is the fight of the
benefits, privilege or consideration or; girl alone. She won. The Sandiganbayan convicted the
4. When the sexual advances result in the Officer. After, an appeal to the Supreme Court, the
intimidating, hostile, or offensive Supreme Court convicted the said Officer and imposed
environment for the student trainee or upon him the maximum penalty of 6 months
practice. imprisonment and a fine of P20,000 plus moral
damages in the amount of P30,000 and exemplary
Q: A is the victim of sexual harassment. What are the damages in the amount of P20,000.
remedies on the part of A? What is/are cases may A file
against the offender B? The Penalty for sexual harassment is so low. Imagine only 1
to 6 months and a fine of P10,000 to P20,ooo. So if you
A: A has 3 Remedies under the Law. become congressmen and senators, you can amend the law,
1. She can file a case for violation of R.A. 7877 increase the penalty
and the penalty is imprisonment of 1 month to ANTI PHOTO and VIDEO VOYEURISM ACT OF
6 months or a fine of P10,000 to P20,000 or 2009 (R.A 9995)
both fine and imprisonment at the discretion
of the court ACTS PROHIBITED:
2. She can file a civil action for damages or any I. Taking photo or video coverage of a person or a group
other affirmative defense of persons performing sexual act or any similar activity
3. She can also file an administrative case against or to capture an image of a private area of a person such
the said offender. If he is a doctor, she can file as the naked or undergarment clad genitals, public area,
a case at the head of the hospital; if he buttocks, or female breasts without the consent of the
professor, she can file a case at the head of the persons involved and under circumstances in which the
school. person/s has/have a reasonable expectation of privacy

187 |
⮚ It is necessary, for the crime to arise, that there

must be NO consent on the part of the said offended
party. And, it must be in place where he or she has
a reasonable expectancy of privacy.
II. To copy or reproduce, or to cause to be copied or
reproduced such photo or video or recording of sexual
act or any similar activity with or without consideration
III. To sell or distribute or to cause to be sold or distributed
, such photo or video or recording of sexual act, whether
the original copy or reproduction thereof;
IV. To publish or broadcast, or to cause to be published or
broadcast whether in print or broadcast media, or show
or exhibit the photo or video coverage or recordings of
such sexual act or any similar activity through
VCD/DVDV, internet, cellular phones and other similar
means or device.
Q: What if A and B are lovers, as lovers they often had sexual
congress. So A the man, told the girl can I videotape our
sexual congress, the girl said yes. So the girl consented. So,
while they engage in sexual congress, it was being videotaped
by the man. Is the man liable under R.A. 9995?
A: No, he is not liable, because there was a consent
given by the said girl.
Q: What if the man reproduced and distributed the said
tape. Is the said man liable?
A: Yes, he is liable.
PENALTY: imprisonment of not less than 3 years but not
more than 7 years AND fine of not less than 100k but not
more than 500k, or both the fine and imprisonment at the
discretion of the court.
Q: What if the woman went to the mall, there was a need to
answer the call of nature, she went to the rest room. In the
rest room, she saw a camera inserted near and in between
the wall of the said cubicle. The janitor placed it there. Is the
Janitor liable under R.A 9995?
A: Yes, he is liable for R.A. 9995.
Case of Hayden Kho and Katrina Halili, if their case
took place after the effectivity of this act, Hayden Kho should
not be off the hook. It just so happen that this act was not yet
enforced at that time. So the case filed against him is
violation of R.A. 9262 – Violence against woman and their
children. Because the reason why the RTC dismissed the case
was that, according to the said court, there was consent given
by Katrina Halili and so, according to the court, there was no
violence against women and their children. But had R.A
9995 in effect at that time, even if consent was allegedly,
although not proven, given by Katrina Halili, Hayden Kho
can be held liable under the 2nd and the 3rd Act. He was so
lucky that this law was not yet in effect at that time.

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TITLE TWELVE III. Concealing or abandoning any legitimate child with

intent to cause such child to lose its civil status
CRIMES AGAINST THE CIVIL STATUS OF
PERSONS The offender conceals or abandons the legitimate
child and the intention of the offender is to lose the
(Articles 347 – 352)
child’s civil status.
CHAPTER ONE – SIMULATION OF BIRTHS AND
It is necessary that the child is legitimate, not illegitimate.
USURPATION OF CIVIL STATUS
Q: A and B husband and wife had a child. The child was born
ARTICLE 347 – SIMULATION OF BIRTHS,
without legs. So A and B could not accept the fact that their
SUBSTITUTION OF ONE CHILD FOR ANOTHER
child has no legs. They brought the child in the forest for the
AND CONCEALMENT OR ABANDONMENT OF A
child to die, to a forest with no people. Thereafter, they left
LEGITIMATE CHILD
the child. What crime is committed by A and B?
THREE ACTS PUNISHED UNDER ART. 347:
A: If the child died, and the child was less than 3 days
I. Simulation of birth old, the crime committed is infanticide. If the child did
not die, the crime committed is attempted
Simulation of birth- takes place when the woman
infanticide if the child was later on discovered and
pretends to be pregnant when in fact she is not and on
rescued.
the day of the delivery, takes the child of another as her
own. If the child is above 3 days old, the crime committed
would be parricide in case the child died when left in
⮚ If the simulation is done in the birth certificate, the forest. If it did not die, attempted parricide.
the crime committed is simulation of birth
⮚ If the simulation is done in any other document Q: What if A and B, instead of going to the forest, went to the
aside from birth certificate, the crime committed mall. The mother went inside the restroom and placed the
is falsification of a public or private document as said child in one of the cubicles in one of the restrooms of the
the case may be. mall. What crime is committed by the mother and the
husband?
Q: A was a pregnant. She told the midwife that she does not
want the baby. The midwife said that she knew a couple who A: Abandoning the Minor under Art. 276. The
wanted a child. The couple arrived and the mother gave the parents left her deliberately, consciously, and
child to the couple. This couple took the baby and registered permanently, without intent to kill. There was no intent
the child as their own. What are the crimes committed and to kill because they could not kill the child. They left it
who are criminally liable? inside the restroom therefore obviously there was no
intent to kill.
A: All of them are all liable for simulation of
birth. The mother, the midwife and the couple. The Q: What if this husband and wife and the child that they have
said couple pretended that the child is their own child. happens to be their 13th child. They already had 12 children
In that case, said child lost its original status. and these children are not going to school. So their 13th child
was born and they wrapped the child in a nice towel, placed
II. Substitution of a child with another it inside a basket and then placed it at the gate of the house
In substitution of a child with another, the of a rich family. Then they rang the bell. What crime is
classic example is MARA and CLARA. committed by the husband and the wife?
⮚ Mara was substituted as Clara and Clara
A: Violation of Art. 347 – Abandoning a
was substituted as Mara. As a result, Mara
legitimate child with intent to lose its real civil
loses her real civil status of being a
status. Obviously, the intent of the parents is for the
daughter of a rich family and assumes a
child, their 13th child to lose its real civil status of being
new civil status of being a daughter of a
that of a poor family and assume a new civil status of
poor family. The same happened to Clara,
coming from a rich family because the child was left at
Clara assumes a civil status of being a
the gate and the parents rang the bell.
daughter of a rich family and loses her real
civil status of being a daughter of a poor ☝ It depends on the intent of the offender. It could be any
family. Crime committed is Substitution other crime, depending on the intent of the offender.
of a child with another child which tend
the child to lose his or her real civil status ARTICLE 348 – USURPATION OF CIVIL STATUS

189 |
The penalty of prision mayor shall be imposed upon any husband said, “He is already dead” and because of that, the
person who shall usurp the civil status of another, should he wife contracted a second or subsequent marriage. The first
do so for the purpose of defrauding the offended part or his husband appeared, and filed a case of bigamy against the
heirs; otherwise, the penalty of prision correccional in its said wife. Is the wife liable for bigamy?
medium and maximum periods shall be imposed.
⮚ The court said that the woman is liable for bigamy
1. It shall be committed by any person who shall through reckless imprudence, because according to
usurp the civil status of another, who shall assume the court, there was imprudence because just by mere
the filiation, or the paternal, or the marital rights reliance on the statement made by the parents of the
of another husband, she already contracted a second marriage
2. Intention of the offender is to enjoy the civil rights
arising from the civil status of the person whom
he impersonates. Is there such a crime of bigamy through reckless
3. If the intention of the offender is to defraud the imprudence?
offended party, or his heirs, the penalty is ⮚ I do not believe in that decision. It is impossible for
QUALIFIED. this crime to have happened. because the law says,
without the first marriage being legally dissolved, it
CHAPTER TWO – ILLEGAL MARRIAGES means there must be a court declaration of nullity
of marriage, without that the absent spouse being
ARTICLE 349 – BIGAMY declared presumptively dead in a decision made in
The penalty of prision mayor shall be imposed upon any an appropriate proceeding, there must be a court
person who shall contract a second or subsequent marriage decision.
before the former marriage has been legally dissolved, or ⮚ Since there is a need of a court decision before one
before the absent spouse has been declared presumptively could contract a second or subsequent marriage,
dead by means of a judgment rendered in the proper there cannot be an instance of bigamy through
proceedings. reckless imprudence. The moment the said married
person contracted a second or subsequent
ELEMENTS: marriage, without any court decision, the crime
1. That the offender has been legally married committed is evidently BIGAMY. It cannot be done
2. That the marriage has not been legally dissolved, in case through reckless imprudence or simple negligence.
his or her spouse is absent, the absent spouse could not Sample problem:
yet be presumed dead according to the Civil Code
3. That he contracts a second or subsequent marriage A and B are married. B, the husband fell in love with another
4. That the second or subsequent marriage has all the woman, and married the woman thereafter. It is now a
essential requisites for validity. bigamous married. A bigamous marriage is an otherwise
valid marriage, except for the fact that there is a subsisting
Bigamy shall be committed by any person who shall: marriage.
1. contracts a second or subsequent marriage before ARTICLE 350 – MARRIAGE CONTRACTED
the former marriage has been legally dissolved, AGAINST PROVISIONS OF LAWS
2. or who shall contract a subsequent or second
marriage before the absent spouse has been The penalty of prision correccional in its medium and
declared presumptively dead, meaning in a maximum periods shall be imposed upon any person who,
decision made in an appropriate proceeding. without being included in the provisions of the next
⮚ The offender is a married person, but he contracted a proceeding article, shall have not been complied with or that
second or subsequent marriage, his previous the marriage is in disregard of a legal impediment.
marriage has not yet been declared null and void by If either of the contracting parties shall obtain the consent of
the court, or her spouse is absent and he or she the other by means of violence, intimidation or fraud, he
contracts a second or subsequent marriage before the shall be punished by the maximum period of the penalty
court has declared that the said spouse is provided in the next preceding paragraph.
presumptively dead
Illegal marriage – marriage contracted without the
Old case in the Book: requisites of the law.
The wife contracted a second marriage because she inquired
from the relatives of the husband and the relatives of the

190 |
⮚ Committed by any person who shall contract a marriage ceremony shall be punished in accordance with the
marriage knowing that he was not able to comply with provisions of the Marriage Law.
the requisites of law or if there is a legal impediment
Q: X and Y fell in love and got married. Both are men. What
of the said marriage.
crime/s is/are committed?
⮚ In the Family Code, before one can contract a
marriage, there is the so called essential and formal A: Article 350. It is an illegal marriage because they
requisites. All of these must be complied with. The both knew that they are not allowed to contract a
absence of any of these, the contracting parties knows marriage and yet, they still contracted on. Also, the one
its absence, yet contracted the marriage, the liability who performed the marriage ceremony will be liable
falls under Art. 350 f0r illegal marriage. under Article 352.
Q: What if the priest, or the minister who contracted or

solemnized the marriage, knows that there is a legal
impediment or knows that the parties failed to comply with
the requisites. What is the liability?
A: Liability is under Art. 352. Under Art. 352, there is a
liability of any priest, or minister of any denomination
or religious sect, or also civil authorities who shall
contract or solemnize any marriage which is not in
accordance with any requisites of the law.
ARTICLE 351 – PREMATURE MARRIAGES
Person Liable:
1. A woman who married within 301 days from the
death of her husband, or before delivery of her baby
if she is pregnant at the time of his death
2. A woman whose marriage having been annulled or
dissolved, married before delivery or before
expiration of the period of 301 days after the date
of legal separation.
Q: Why is a woman prohibited from marrying for a period of
301 days?
A: This is to ensure that there is no doubt as to the
paternity of the child to be delivered, in order for the
child to know who is his father. Otherwise, if he is not
the one who died, he is the new husband of the wife.
⮚ The period of 301 days is only important if the woman

is not pregnant
⮚ If the woman is pregnant at the time of the death or at
the time of the declaration of the nullity of marriage, it
is only at the time of the delivery of the baby. After the
baby is delivered, she can already marry because there
is no doubt as to the paternity of the child.
⮚ Nowadays, you can easily determine the paternity of the
child through DNA testing.
ARTICLE 352 – PERFORMANCE OF ILLEGAL
MARRIAGE CEREMONY
Priests or ministers of any religious denomination or sect, or
civil authorities who shall perform or authorize any illegal

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

using an amplifier sound system, called B “isa kang
CRIMES AGAINST HONOR
estafadora”. Is the crime committed libel or is it oral
(Articles 353 – 364) defamation?
CHAPTER ONE – LIBEL A: The crime committed is Oral Defamation or

Slander. The use of the microphone or the amplifier is
Section One: Definitions, forms, and punishment
not within the means provided for Art. 355.
of this crime.
THIRD ELEMENT:
DEFAMATION – Kinds of Defamation:
Identity of the person- must be identified, not necessary
1. Written defamation or Libel
that the person must be named or described.
2. Oral defamation or Slander
3. Slander by deed ⮚ It suffices that any reader or a person who heard
would know that he is the person being referred to.
ARTICLE 353 – DEFINITION OF LIBEL
⮚ The moment a 3rd party has recognized or has
ARTICLE 354 – REQUIREMENT FOR PUBLICITY known that he is the one being referred to in the
LIBEL – is public and malicious imputation of a crime, or defamatory statement, the identity of the offended
of a vice or defect, whether real or imaginary, or any act, party is already present.
omission, condition, status, or circumstance tending to FOURTH ELEMENT in relation to Art. 354 –
cause the dishonor, discredit, or contempt of a natural or Requirement for Publicity:
juridical person, or to blacken the memory of one who is
dead. ⮚ As a rule, every defamatory statement is presumed
to be MALICIOUS, even if it is true.
ELEMENTS:
⮚ In defamatory statements, if the offender cannot
1. There must be an imputation or allegation of a crime, state any good intention or justifiable motive for
or a vice of defect, whether real or imaginary, or any stating defamatory statements, the law presumes
act or omission, condition, status or circumstance malice.
which tend to dishonor or discredit a natural or
MALICE IN LAW – Prosecution need not prove malice. It
juridical person.
is the defense who must prove that in stating the defamatory
2. That there must be a publication of the said
statements, there was no malice on the part of the offender
defamatory statement or article
because the law presumes malice in law.
3. The identity of the person defamed must be
established or identified MALICE IN FACT – There are certain statements wherein
4. The existence of malice the law does not presume malice. In this kind of malice, it
must be proven by the prosecution. It is available in privilege
SECOND ELEMENT:
communication.
Publication – satisfied the moment that a 3rd person has
■ It is the burden of the prosecution to prove the
heard or read the libelous statement, even if the person
existence of malice on the part of the offender
pertained has not heard or read it.
when he said the defamatory mark or statement.
⮚ So the basis is that a 3rd person has heard or read Otherwise, if not proven. There will be an
the libelous statement. acquittal.
Q: What if A, in national television said, “ikaw B, isa kang Two Kinds of Privilege Communications
estafadora”. A accused B of the crime of estafa. Is the crime (Exceptions)
committed libel or oral defamation (slander)? 1. Absolute Privilege Communication
A: The crime committed is LIBEL. According to 2. Qualified Privilege Communication or Conditional
the Supreme Court, Television is within the phrase any Privilege Communication
similar means. Absolute Privilege Communication – totally no actionable.
Q: The accused called a ranking official magnanakaw and Ex: A senator stating slanderous remarks against a well-
mandarambong over the radio. Crime committed? known businessman in a privilege speech. The
A: The crime committed is libel businessman cannot file a case against such senator.

192 |
The witness stating defamatory remarks against the 1. Writing

accused or complainant in open court during court
2. Printing
proceedings is not liable because such is totally not
actionable. 3. Lithography
A lawyer stating slanderous remarks in a case or 4. Engraving
pleading filed in court –totally not actionable.
5. Radio
Qualified Privilege Communication – actionable
6. Phonograph
The offended party may file a case against the offender
7. Painting
but the burden to prove malice lies with the
complainant. If the offended party fails to prove malice, 8. Theatrical Exhibition
it would be an acquittal. Here, the court will not
9. Cinematographic Exhibition
presume malice. It is the burden of the prosecution to
prove the presence of malice. 10. Any similar means
Example: Q: What if A told B, if you will not give me P100,000, I will
inform your husband that you are having an affair with
A communication made by one person to another in the
another man. What crime is committed by A?
exercise of his legal, professional, or moral duty
A: Crime committed is Light Threats. It is a
A fair and true report made in good faith without any
form of Blackmailing which constitutes light
comment in a legislative or judicial proceedings or any
threats.
statements made before said proceedings
Q: If you will not give me P100,000, I will publish on the
Any statements made regarding performance or
magazine, on the newspaper, your love letters to the said
functions of public officers.
man who is not your husband. What crime is committed?
ARTICLE 355 – LIBEL MEANS BY WRITINGS OR
A: Crime committed is Threatening to
SIMILAR MEANS
Publish a Libel, also a form of Blackmailing.
A libel committed by means of writing, printing,
BLACKMAILING – is an unlawful extortion of money
lithography, engraving, radio, phonograph, painting,
appearing [on the fears] of the offended party, can either be
theatrical exhibition, cinematographic exhibition, or any
light threats or threatening to publish libel
similar means, shall be punished by prision correccional in
its minimum and medium periods or a fine ranging from ⮚ It is light threats if the offender asks the money or
200 to 6,000 pesos, or both, in addition to the civil action any other consideration in exchange for a doing of a
which may be brought by the offended party. wrong which does not constitute a crime.
⮚ If the defamatory statement or article is published ⮚ Otherwise, if the thing to be published would involve
through any of these means, then, the crime the morality of the person, then you are threatening
committed is LIBEL. to publish a libel.
⮚ Although television is not mention, Supreme Court Where do you file a case of Libel?
said that television is within the meaning of other
similar means ⮚ You file a case of Libel before the Regional Trial
Court (RTC). Although the penalty for libel is
ARTICLE 356 – THREATENING TO PUBLISH AND prision correcional in its minimum and medium
OFFER TO PRESENT SUCH PUBLICATION FOR A period, it should be filed before the MTC under the
COMPENSATION Rules of Court, yet Revised Penal Code (RPC)
The penalty of arresto mayor or a fine from 200 to 2,000 itself, a substantive law, states that all libel cases must
pesos, or both, shall be imposed upon any person who be filed before the RTC.
threatens another to publish a libel concerning him or the ⮚ Rules of Court is only a procedural law. Therefore
parents, spouse, child, or other members of the family of the the substantive law, the Revised Penal Code,
latter or upon anyone who shall offer to prevent the should be followed.
publication of such libel for a compensation or money Where shall be these cases of libel be filed?
consideration.
Art. 355 enumerates how libel can be committed:

193 |
⮚ It depends. Generally, it should be filed before the RTC c.Facts and Circumstances surrounding the case
where the article was printed or first published or the d.Social standing and position of the offended
RTC where the offended party is residing at the time party.
of the commission of the crime. ⮚ All of which must be considered in order to determine
- If the offended party is a public officer and is working in whether it would constitute Grave Slander or Simple
City of Manila, it must be filed before RTC of Manila or Slander
the RTC where the article was printed and first
The same is true in Slander by deed.
published.
- If the public officer is not working in Manila, it shall be Q: Calling a public officer a magnanakaw without any
filed in the RTC of the province or city where he is evidence.
working at the time of the commission of the offense or
A: It would constitute criminal case of Slander
where the libelous article was printed or was first
published. Q: What about the phrase of Putang ina mo? Is it considered
- If libelous article refers to a private individual who is the as a slanderous remark?
offended party, it can be filed before the RTC of the
A: In the case of Pader vs. People, PUTANG INA MO
place where the private individual resides at the time of
is not a slanderous remark. It is merely an expression of
the actual commission of the offense or where the
the Filipino People. When a Filipino is sad, happy, angry
libelous material was printed or first published.
or surprised, he says this word.
ARTICLE 357 – PROHIBITED PUBLICATION OF
Pader v. People
ACTS REFERRED TO IN THE COURSE OF
OFFICIAL PROCEEDINGS There was a drunk man who passed by the house of a
political candidate. Their families are enemies. A told to
The penalty of arresto mayor or a fine of from 20 to 2,000
the family of B, “putang ina mo B, magnanakaw ka sa
pesos, or both, shall be imposed upon any reporter, editor or
bayan”. So because of this, B filed a case of oral
manager or a newspaper, daily or magazine, who shall
defamation or slander.
publish facts connected with the private life of another and
offensive to the honor, virtue and reputation of said person, The Supreme Court said that phrase is not considered
even though said publication be made in connection with or as a defamatory statement. It is a mere expression on
under the pretext that it is necessary in the narration of any the part of the Filipino People. The crime committed by
judicial or administrative proceedings wherein such facts the offender is only SIMPLE ORAL DEFAMATION
have been mentioned. or SIMPLE SLANDER, not grave. Although the
offended party is running for a political position. The
ARTICLE 358 – SLANDER
Court has taken into consideration the antecedent facts
Oral defamation shall be punished by arresto mayor in its of the case, their families are enemies of each other.
maximum period to prision correccional in its minimum
ARTICLE 359 – SLANDER BY DEED
period if it is of a serious and insulting nature; otherwise the
penalty shall be arresto menor or a fine not exceeding 200 The penalty of arresto mayor in its maximum period to
pesos. prision correccional in its minimum period or a fine ranging
from 200 to 1,000 pesos shall be imposed upon any person
ORAL DEFAMATION/SLANDER
who shall perform any act not included and punished in this
1. Grave Slander – when serious and insulting in title, which shall cast dishonor, discredit or contempt upon
nature. another person. If said act is not of a serious nature, the
2. Simple Slander penalty shall be arresto menor or a fine not exceeding 200
pesos.
Factors to consider whether serious or insulting in
nature: SLANDER BY DEED refers to the commission of acts, it
does not refer to the use of words, with the intent to blemish
⮚ there are no concrete parameters in order to
the credit and reputation of another person.
determine whether the said defamatory statement is
serious or insulting in nature. You have to take into It can also be
consideration the
1. serious, grave slander by deed – serious and
a. grammar and meaning sense of the statement
insulting
b. Personal relations of the accused and the
2. simple slander by deed.
offended party

194 |
⮚ The Supreme Court said that there are no concrete PUBLICLY – publication means the making the
parameters when you should consider it grave slander defamatory matter, after it is written, known to someone
by deed or simple slander by deed. It depends on the other than the person against whom it has been written. It is
sound discretion of the court. enough that the author of the libel has communicated it to a
third person.
Q: What if A, intending to defame or slander a priest,
slapped the priest in front of his congregates. ⮚ In addition, the open letter was found in a mailbox,
open to the public.
A: Crime committed is GRAVE SLANDER BY
DEED because of the reputation, the stature in life of IDENTIFIABLE – The libelous letter was addressed to the
the offended person. respondent himself.
Q: The wife saw the mistress of her husband in a party. Prior Section two: General Provisions
to this incident, the wife had already confronted the mistress
[not discussed]
begging her to leave the husband (enters: Maricel and
Angelica) but the mistress was proud enough and would not ARTICLE 360 – PERSONS RESPONSIBLE.
leave the husband (Angelica and Maricar, Cristine and
Anne). In this party, the wife saw the mistress and upon ⮚ The penalty is prision correccional in its medium and
seeing her, she slapped twice the mistrees and shouted, minimum period therefore it is within the jurisdiction
“Concubine!”, then she left. What case may be filed by the of MTC but the law expressly provides that libel cases
mistress against the wife? Is it simple oral defamation or is within the jurisdiction of the RTC.
grave oral defamation or grave slander by deed or simple ARTICLE 361 – PROOF OF THE TRUTH
slander by deed?
ARTICLE 362 – LIBELOUS REMARKS.
A: It is only simple taking into consideration the
relationship of the victims and facts and circumstances
surrounding the case. CHAPTER TWO – INCRIMINATORY
Buatis v. People MACHINATIONS
An open letter was addressed to the Atty. Pieraz which ARTICLE 363 – INCRIMINATING INNOCENT
contained Libelous statements such as Satan, senile, PERSON
stupid and according to the offender, the offended party Any person who, by any act not constituting perjury, shall
uses carabao English and ended the letter in Satan’s directly incriminate or impute to an innocent person the
name. This letter was read by the wife of the offended commission of a crime, shall be punished by arresto menor.
party. It came to the knowledge of not only the wife but
also the children. ⮚ Act committed by any person, directly incriminating or
imputes to an innocent person the commission of the
Issue: would you consider the wife as a 3rd person, a crime outside perjury
public, in so far as libel is concerned?
⮚ It is necessary that it must not be made on an affidavit,
SC: The wife is still considered as a third person. because if it is through an affidavit, it will be perjury.
For an imputation to be libelous, the following EXCEPTIONS:

requisites must concur:
1. perjury (sworn affidavit), or
⮚ It must be defamatory 2. sec 29 of RA 9165 (Planting of evidence)
⮚ it must be malicious Q: A in his counter-affidavit, in his sworn statement,
⮚ It must be given publicly imputed upon A the commission of the crime of theft, what
⮚ The victim must be identifiable crime is committed?
DEFAMATORY – The latter contained libelous remarks A: PERJURY. It is a sworn statement under oath
such us satan, senile, stupid, and English carabao before a public officer.
MALICIOUS – every defamatory imputation is presumed Q: What if a Magic ballpen was lost in a party. A took the
to be malicious, even if it be true, if no good intention or magic ballpen of B, and then surreptitiously entered it inside
justifiable motive for making it is shown the bag of C. And so when everybody was looking for it, it
was found in the bag of C. However, someone saw A did the
act. What crime if any is committed by A?

195 |
A: A IS LIABLE FOR INCRIMINATING innocent persons, the crime committed is

INNOCENT PERSONS. Incriminating innocent Incriminating of Innocent Persons through
persons is about PLANTING OF EVIDENCE in order unlawful arrest.
to impute, incriminate another person the commission
ARTICLE 364. INTRIGUING AGAINST HONOR
of the crime.
The penalty of arresto menor or fine not exceeding 200
Q: A and B are neighbors, A is mad at B, and deliberately
pesos shall be imposed for any intrigue which has for its
bumped B and in course thereof, he inserted a plastic sachet
principal purpose to blemish the honor or reputation of a
of shabu in the pocket of B and then he told the police that B
person.
has a shabu inside his pocket. What crime if any is
committed by A? ⮚ This refers to any intrigue which has for its
A: Crime committed is Sec. 29 of R.A. 9165, purpose to cause blemish or dishonor on the
planting of evidence. If what has been planted is any reputation of any person
dangerous drugs, the crime committed is particular, ⮚ It refers to any scheme or plot which is
Sec. 29 of R.A. 9165, because the special penal law designed to blemish or dishonor the
specifically punishes the planting of dangerous drugs. If reputation of any person
it is any other thing, a necklace was lost and A planted it Common Example:
inside the bag of B, the crime committed is
incriminating innocent persons. “Isang chismis na hindi alam kung saan nagsimula”
Q: What if a police officer was mad at X, and so what he did ⮚ It is an intrigue which spread a negative rumor, you
was, while X was sitting, he deliberately planted an don’t even know where it started. It is a plot, a
unlicensed firearm inside the bag of X and thereafter scheme in order to detain or blemish the reputation
arrested X, what crime is committed by the said police of another person
officer?
Crime committed is INTRIGUING AGAINST HONOR.
A: He committed unlawful arrest. He arrested X
without any justifiable reason thereof. He incriminates
upon the innocent person the commission of the crime
which is illegal possession of unlicensed firearm. So
here, unlawful arrest was committed by incriminating
innocent persons. UNLAWFUL ARREST
THROUGH INCRIMINATING INNOCENT
PERSONS. It is a complex crime under Art. 48 of Book
I because the incriminating of innocent persons is a
necessary means to commit unlawful arrest.
Q: Police officers told X he was under arrest and would file
a case against him. X asked but police officers did not reply.
He was brought to the police station where the contents of
his bag were laid on the table. Unknown to him, one of the
police officers inserted marked money in his wallet and so
when the money was brought to the table, the marked money
was there. The purpose is to impute upon him the crime of
theft. What is/are the crime/crimes committed by the police
officers?
A: The police officers are liable for two crimes. But:
First, unlawful arrest under Article 269 because they
unlawfully arrested X saying that they will file a case
against him but indeed no case had been filed. In the
police station, his money was mixed with the marked
money by a police officer to impute upon him the crime
of theft, therefore they also imputed upon him
incriminating innocent persons. Since, unlawful arrest
was a necessary means to commit incriminating of

196 |
TITLE FOURTEEN such act, taking into consideration his employment or

occupation, degree of intelligence, physical condition and
QUASI-OFFENSES
other circumstances regarding persons, time and place.
Sole Chapter – CRIMINAL NEGLIGENCE
Simple imprudence consists in the lack of precaution
Art. 365 – IMPRUDENCE AND NEGLIGENCE displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly manifest.
Any person who, by reckless imprudence, shall commit
any act which, had it been intentional, would constitute a ☝ The penalty next higher in degree to those provided for
grave felony, shall suffer the penalty of arresto mayor in its in this article shall be imposed upon the offender who
maximum period to prision correccional in its medium fails to lend on the spot to the injured parties such help
period; if it would have constituted a less grave felony, the as may be in this hand to give. (As amended by R.A.
penalty of arresto mayor in its minimum and medium 1790, approved June 21, 1957).
periods shall be imposed; if it would have constituted a light ☝ Remember that what is being punished by law is the
felony, the penalty of arresto menor in its maximum period imprudence, negligence, lack of foresight, or lack of skill
shall be imposed. of the offender, therefore the crime would be reckless
Any person who, by simple imprudence or negligence, imprudence resulting in homicide or reckless
shall commit an act which would otherwise constitute a imprudence resulting in physical injuries or reckless
grave felony, shall suffer the penalty of arresto mayor in its imprudence resulting in multiple homicide.
medium and maximum periods; if it would have constituted Ivler v. Hon Modesto
a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed. There was this vehicular accident and the husband, Ponce,
died. The wife suffered only slight physical injuries. Two
When the execution of the act covered by this article shall charges were filed in the court: Reckless Imprudence
have only resulted in damage to the property of another, the Resulting to Slight Physical Injuries and Reckless
offender shall be punished by a fine ranging from an amount Imprudence Resulting to Homicide and Damage to
equal to the value of said damages to three times such value, Property. In the case of Reckless Imprudence Resulting to
but which shall in no case be less than twenty-five pesos. Slight Physical, Jason Ivler immediately pleaded guilty to the
A fine not exceeding two hundred pesos and censure shall be crime charged. The judgment became final and executory.
imposed upon any person who, by simple imprudence or During the arraignment of Reckless Imprudence Resulting
negligence, shall cause some wrong which, if done to Homicide and Damage to Property, the council of Jason
maliciously, would have constituted a light felony. Ivler filed a motion to quash claiming that he can no longer
be prosecuted for Reckless Imprudence Resulting to
In the imposition of these penalties, the court shall exercise Homicide and Damage to Property because he has already
their sound discretion, without regard to the rules been convicted of Reckless Imprudence Resulting to Slight
prescribed in Article sixty-four. Physical Injuries. He cannot be prosecuted based on the
The provisions contained in this article shall not be same offense otherwise; the accused will be placed in double
applicable: jeopardy. This was denied so it went up to the SC by a
petition for certiorari. The SC said, Jason Ivler and his
1. When the penalty provided for the offense is equal counsel are correct. A person can no longer be prosecuted
to or lower than those provided in the first two for Reckless Imprudence Resulting to Homicide and
paragraphs of this article, in which case the court Damage to Property after he is convicted of Reckless
shall impose the penalty next lower in degree than Imprudence Resulting to Slight Physical Injuries. SC said,
that which should be imposed in the period which what is being punished is the reckless imprudence. Since
they may deem proper to apply. what is punished is reckless imprudence the damage to
2. When, by imprudence or negligence and with property and slight physical injuries or homicide are only
violation of the Automobile Law, to death of a person resulting felonies. Since they are only resulting felonies,
shall be caused, in which case the defendant shall be since the crime being punished is the imprudence or
punished by prision correccional in its medium and negligence, one can no longer be prosecuted or convicted
maximum periods. after he has already been convicted and prosecuted of the
same offense. Reckless imprudence and simple negligence
Reckless imprudence consists in voluntary, but without are crimes by themselves. THEY ARE QUASI-OFFENSES.
malice, doing or falling to do an act from which material Therefore, to prosecute a person after he has been convicted
damage results by reason of inexcusable lack of precaution of simple negligence, will result to double jeopardy.
on the part of the person performing of failing to perform

197 |
to property are merely results of the said imprudence or

negligence.
☝ Remember also that under Art 265 that if the result of

Take note of the case of Ivler v. Hon Modesto.
imprudence or negligence is only damage to property
Reckless imprudence or negligence is the crime itself. Hence, the penalty shall only be fine. There is no penalty of
once committed or acquitted of a specific act of reckless imprisonment.
imprudence, the accused may not be prosecuted again for
that same act. For the essence of the quasi offense of criminal ⮚ If due to reckless driving, two children died and their
negligence under Art 365 of the RPC lies in the execution of father suffered serious physical injuries and the driver
an imprudent or negligent act that if intentionally done, did not render help within his means the penalty is
would be punishable as a felony. The law penalizes thus the RECKLESS IMPRUDENCE RESULTING IN
negligent or careless act, not the result thereof. The gravity DOUBLE HOMICIDE AND SERIOUS PHYSICAL
of the consequence is only taken into account to determine INJURIES. The fact that he did not do anything to
the penalty; it does not qualify the substance of the offense. render help will result in increase in penalty by one
And, as the careless act is single, whether the injurious result degree.
should affect one person or several persons, the offense
(criminal negligence) remains one and the same, and cannot
be split into different crimes and prosecutions.
1st case: reckless imprudence resulting to slight physical
injuries
2nd case: reckless imprudence resulting to homicide and
damage to property
1. One quasi-offense cannot give rise to another
quasi-offense.
2. Note simple negligence is not a means to commit a
crime. They are crimes by themselves.
Q: What if A was driving his car and he collided with another
car. As a result, let’s say that a person died and 4 persons
suffered serious physical injuries, they have wounds but they
survived. And one person suffered slight physical injuries.
What is/are the crime committed by A?
A: The offender is liable for RECKLESS IMPRUDENCE
RESULTING TO HOMICIDE AND MULTIPLE
PHYSICAL INJURIES BUT NOT SLIGHT PHYSICAL
INJURY. There should be another charge for
RECKLESS IMPRUDENCE RESULTING TO SLIGHT
PHYSICAL INJURIES. You cannot complex slight
physical injury in the first crime because it is only a light
felony. And its complexity is prohibited under Art.48.
But in reality, you no longer file a case of reckless
imprudence resulting to slight physical injury because
the moment the offender is convicted, patay na yung
first case. Because there will already be double
jeopardy. In reckless imprudence and simple
negligence what is being punished is the imprudence
and negligence that’s why the appropriate name is
reckless imprudence resulting to homicide, simple “AD ASTRA SAPIENTIA!”
negligence causing damage to property, simple
Good Luck!
negligence resulting to homicide not homicide through
reckless imprudence because what is being punished is
the imprudence and negligence. Homicide and damage

198 |

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2020

Credits to – Dizon |Manalo| Narvaez | Shyu | Tubio (2017)

TITLE ONE ⮚ The third element refers to the mode of committing

BINUA | DE ROXAS | GOPEZ | LAXAMANA | RAMOS (1A 2019-2020)

⮚ Two-witness rule does not apply

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ARTICLE 117 – ESPIONAGE

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ELEMENTS: The competent authority or the President issued a

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mentioned in Article 123, it will bring about a A: The charge is wrong.

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TITLE TWO ⮚ There is detention when the offended party is

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committing, or is attempting to commit a c) 36 hours, for crimes punishable by afflictive or

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■ Article 130 provides for a hierarchy of witnesses

1. Offender is a public officer or employee ARTICLE 131 – PROHIBITION, INTERRUPTION

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b. Ritual, A: First element is present since X is a private individual

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Conspirac Proposal Inciting to

⮚ There is CONSPIRACY TO COMMIT ELEMENTS:

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person, municipality or province or the to go against what the

■ Based on the objects of sedition, the purposes of ELEMENTS:

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First paragraph: If the use of said firearm is inherent ELEMENTS:

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rebellion, and they are punished by such acts. There is

PURPOSE – of the Therefore, they are not liable of any crime.

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II. Without public uprising, by ATTACKING, by 4. Lawyers while engaged in their

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