THE REVISED PENAL CODE

BOOK 2 – FELONIES
AND RELATED SPECIAL PENAL LAWS

BY

PROS. DON IMMANUEL V.C. VERGARA

Public Prosecutor, Department of Justice National Prosecution Service
Faculty, University of the Cordilleras College of Law
Member, Regional Child Welfare Specialist Group – DSWD-CAR
Lecturer, Philippine National Police Criminal Investigation and Detection Course

CRIMES AGAINST NATIONAL SECURITY AND THE LAW OF NATIONS

Treason

1. Committed only during wartime;

2. Committed by any Filipino citizen or a resident alien;

3. Committed by:
a. Levying war against the Philippines; OR
b. Adhering to the enemy by giving them aid or comfort
- The giving of aid or comfort must be coupled with
evidence of adherence to the enemy. Mere giving of aid of
comfort for humanitarian reasons is not treasonous.

4. Common crimes committed in line with treason are ABSORBED

5. Common crimes committed THROUGH treason are COMPLEXED

6. Rule on Territoriality
a. Filipinos may commit treason in the Philippines or abroad
b. Resident aliens may only commit treason in the Philippines

7. Two-Witness Rule / Severely Restrictive Rule – “No person shall be convicted

of treason unless on the testimony of two witnesses at least to the same overt
act or on confession of the accused in open court.”
8. Conspiracy or proposal to commit treason is punishable
9. Misprision of treason is punishable

Violation of Neutrality

1. There must be a war in which the Philippines is not involved;

2. The Philippine government issues a regulation of neutrality, that the
Philippines does not side or adhere to the cause of any of the warring nations;
3. The accused commits any act that violates that regulation of neutrality

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Correspondence with Hostile Country

1. Committed during times of war;

2. Punishes the act of sending correspondence or written communication where
the recipient is physically located within a country or territory occupied by a
country, with which the Philippines is at war;

3. Correspondence is punishable when:

a. If correspondence is prohibited by the government, regardless of the
nature of the correspondence;
b. If the correspondence is carried out in ciphers or conventional signs,
even if there is no government prohibition;
c. If the correspondence contains notice or information which might be
useful to the enemy, even if there is no government prohibition. The
intent to aid the enemy by the correspondence is an aggravating
circumstance.

Flight to Enemy’s Country

1. Committed only in times of war;

2. Committed by any person, whether Filipino or otherwise, owing allegiance to
the Philippine government;
3. There is a government prohibition against travelling to the enemy country;
4. The following acts are punishable:
a. Mere attempt to flee or to go to the enemy country; or
b. By actually fleeing or going to the enemy country.

Piracy and Mutiny

Piracy - It is robbery or forcible depredation on the high seas, without lawful

authority and done with animus furandi (the intent to steal) and in the spirit and
intention of universal hostility.” (People of the Philippines vs. Lol-lo and Saraw, 43
Phil. 19)

Mutiny – It is the unlawful resistance to a superior officer, or the raising of

commotions and disturbances on board a ship against the authority of its
commander.

Piracy and mutiny are qualified when:

1. Whenever they have seized a vessel by boarding or firing upon the same;
2. Whenever the pirates have abandoned their victims without means of saving
themselves; or
3. Whenever the crime is accompanied by murder, homicide, physical injuries or
rape.

Philippine Waters - Refers to all bodies or water, such as but not limited to seas,
gulfs, bays around, between and connecting each of the islands of the Philippine
archipelago irrespective of its depth, breadth, length or dimension, and all other
waters belonging to the Philippines by historic or legal title, including the territorial

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sea, sea bed, the insular shelves and other submarine areas over which the
Philippines has sovereignty or jurisdiction.

Vessel - Any watercraft used for transport of passengers and cargo from one place to
another through Philippine waters, including all kinds and types of watercraft used
in fishing.

Piracy under Article 122

Before the amendment by P.D. 532 and R.A. 7659

Punishable Acts

1. Attacking or seizing the vessel on the high seas or in Philippine waters; OR

2. By seizing the whole or part of its cargo, its equipment or personal belongings
of its complement or passengers while the vessel is in the high seas.

Note: Offenders are strangers to the vessel

Piracy under Article 122

After the amendment by P.D. 532

“Any attack upon or seizure of any vessel, or the taking away of the whole or
part thereof or its cargo, equipment, or the personal belongings of its complement
or passengers, irrespective of the value thereof, by means of violence against or
intimidation of persons or force upon things, committed by any person, including
a passenger or member of the complement of said vessel, in Philippine waters,
shall be considered as piracy. The offenders shall be considered as pirates and
punished as hereinafter provided.”

Issue: Article 122 defined “piracy” to be committed in the high seas by

strangers while P.D. 532 defined it to be committed in Philippine waters by
any person.

Is there a conflict as to (i) offenders and (ii) place of commission?

NO. Article 122 and P.D. 532 complement each other.

Piracy under Article 122

After the amendment by P.D. 532 and by R.A. 7659

PRESENT LAW

“The penalty of reclusion perpetua shall be inflicted upon any person who, on
the high seas, or in Philippine waters, shall attack or seize a vessel or, not being a
member of its complement nor a passenger, shall seize the whole or part of the
cargo of said vessel, its equipment or passengers.”

Resolved:

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 1. Piracy may be committed by any person, whether a stranger to the vessel or a
passenger, or a member of the complement.

2. Piracy may be committed in the high seas or in Philippine waters.

Summary

1. Piracy

a. Piracy may be committed by any person, whether a stranger to the

vessel or a passenger, or a member of the complement or crew.

b. Piracy may be committed in the high seas or in Philippine waters.

c. Piracy is committed by either attacking or seizing the vessel on the high

seas or in Philippine waters; or by seizing the whole or part of its cargo,
its equipment or personal belongings of its complement or passengers
while the vessel is in the high seas or in Philippine waters.

d. Piracy is qualified under the circumstances in Article 123.

2. Mutiny

a. Piracy may be committed by any person, whether a stranger to the

vessel or a passenger, or a member of the complement or crew.

b. Piracy may be committed in the high seas or in Philippine waters.

c. Piracy is committed by either attacking or seizing the vessel on the high

seas or in Philippine waters; or by seizing the whole or part of its cargo,
its equipment or personal belongings of its complement or passengers
while the vessel is in the high seas or in Philippine waters.

d. Piracy is qualified under the circumstances in Article 123.

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REPUBLIC ACT NO. 11479 - AN ACT TO PREVENT, PROHIBIT AND PENALIZE
TERRORISM, THEREBY REPEALING REPUBLIC ACT NO. 9372, OTHERWISE KNOWN
AS THE "HUMAN SECURITY ACT OF 2007"

Terrorism, defined

Terrorism is any act intended to intimidate the general public or a segment

thereof, create an atmosphere or spread a message of fear, to provoke or influence
by intimidation the government or any international organization, or seriously
destabilize or destroy the fundamental political, economic, or social structures of
the country, or create a public emergency or seriously undermine public safety.

Punishable Acts:

1. Acts of Terrorism

a. Engages in acts intended to cause death or serious bodily injury to any

person, or endangers a person's life;

b. Engages in acts intended to cause extensive damage or destruction to a

government or public facility, public place or private property;

c. Engages in acts intended to cause extensive interference with, damage

or destruction to critical infrastructure;

d. Develops, manufactures, possesses, acquires, transports, supplies or

uses weapons, explosives or of biological, nuclear, radiological or
chemical weapons; and

e. Release of dangerous substances, or causing fire, floods or explosions.

Note: Any of the acts above constitute consummated terrorism regardless

of the physical location of the offender, and regardless of the stage of
execution (whether attempted or frustrated).

The penalty for committing any act of terrorism is life imprisonment.

2. Threat to commit terrorism - Any person who shall threaten to commit any
of the acts mentioned in Section 4 hereof shall suffer the penalty of
imprisonment of twelve (12) years.

3. Planning, Training, Preparing, and facilitating the Commission of

Terrorism – includes the following acts:

a. Participation in the planning, training, preparation and facilitation in

the commission of terrorism;

b. Possession of objects connected with the preparation for the

commission of terrorism; or

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 c. Collecting or making documents connected with the preparation of
terrorism

4. Conspiracy to commit terrorism;

5. Proposal to commit terrorism;

6. Inciting to commit terrorism – the incitement is committed by:

a. Speeches;
b. Proclamations;
c. Writings;
d. Emblems;
e. Banners; or
f. Other representations tending to the same end.

The person committing the incitement must not directly participate in the
commission of any act of terrorism, otherwise they shall be liable for
terrorism itself.

7. Recruitment to and Membership in a Terrorist Organization

A “terrorist individual” is a person committing any of the punishable

acts of terrorism under Sections 4-12 of R.A. 11479.

A “terrorist organization, association, or group of persons” refers to any

entity organized for the purpose of engaging in terrorism, or those
proscribed as a terrorist group pursuant to Section 26 of R.A. 11479:

“Section 26. Proscription of Terrorist Organizations, Association, or

Group of Persons.- Any group of persons, organization, or association,
which commits any of the acts defined and penalized under Sections 4,
5, 6, 7, 8, 9, 10, 11 and 12 of this Act, or organized for the purpose of
engaging in terrorism shall, upon application of the DOJ before the
authorizing division of the Court of Appeals with due notice and
opportunity to be heard given to the group of persons, organization or
association, be declared as a terrorist and outlawed group of persons,
and organization or association, by the said Court.
The application shall be filed with an urgent prayer for the issuance of
a preliminary order or proscription. No application for proscription
shall be filed without the authority of the ATC upon the
recommendation of the National Intelligence Coordinating Agency
(NICA).”

8. Foreign Terrorism – the following acts are declared unlawful:

a. For any person to travel or attempt to travel to a state other than

his/her state of residence or nationality for the purpose of
perpetrating, planning, or preparing for, or participating in terrorism,
or providing or receiving terrorist training;

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 b. For any person to organize or facilitate the travel of individuals who
travel to a state other than their states of residence or nationality
knowing that such travel is for the purpose of perpetrating, planning,
training, or preparing for, or participating in terrorism or providing or
receiving terrorist training; or

c. For any person residing abroad who comes to the Philippines to

participate in perpetrating, planning, training, or preparing for, or
participating in terrorism or provide support for or facilitate or receive
terrorist training here or abroad.

9. Providing Material Support to Terrorists - The provision of material

support to any terrorist individual or terrorist organization, association or
group of persons committing any of the acts of terrorism, by any person is
punishable.

Requirement – the offender must know that such individual or organization,

association, or group of persons to whom material support is given is
committing or planning to commit acts of terrorism.

The offender shall be liable as principal to any and all terrorist activities
committed by said individuals or organizations, in addition to other criminal
liabilities he/she or they may have incurred in relation thereto.

10.Accessory to Terrorism - Any person who having knowledge of the

commission of any of the acts of terrorism under Section 4 of R.A. 11479,
without having participated therein, takes part subsequent to its commission
in any of the following manner:
a. By profiting himself/herself or assisting the offender to profit by the
effects of the crime;

b. By concealing or destroying the body of the crime, or the effects, or

instruments thereof, in order to prevent its discovery; or

c. By harboring, concealing, or assisting in the escape of the principal or

conspirator of the crime.

Note: No person, regardless of relationship or affinity, shall be exempt from

liability as an accessory to terrorism.

EXPRESSLY EXCUDED as acts of terrorism are any advocacy, protest, dissent,

stoppage of work, industrial or mass action, and other similar exercises of civil and
political rights, which are not intended to cause death or serious physical harm
to a person, to endanger a person's life, or to create a serious risk to public
safety.

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Surveillance of Suspects and Interception
and Recording of Communications

A law enforcement agent or military personnel may, upon a written order of

the Court of Appeals secretly wiretap, overhear and listen to, intercept, screen, read,
survey, record or collect, with the use of any mode, form, kind or type of electronic,
mechanical or other equipment or device or technology now known or may
hereafter be known to science or with the use of any other suitable ways and means
for the above purposes, any private communications, conversation, discussion/s,
data, information, messages in whatever form, kind or nature, spoken or written
words:

1. Between members of a judicially declared and outlawed terrorist

organization,
2. Between members of a designated person as defined in Section 3(e) of
Republic Act No. 10168 (Anti-Money Laundering Act); or
3. Any person charged with or suspected of committing any of acts punished as
terrorism.

Note: The surveillance, interception and recording of communications between

lawyers and clients, doctors and patients, journalists and their sources and
confidential business correspondence is prohibited and shall not be authorized.

This operates as an exception to the application of R.A. 4200 (Anti-Wiretapping

Act).

Detention Without Judicial Warrant of Arrest

Any law enforcement agent or military personnel, who, having been duly
authorized in writing by the ATC has taken custody of a person suspected of
committing any of the acts of terrorism, shall, without incurring any criminal
liability for delay in the delivery of detained persons to the proper judicial
authorities, deliver said suspected person to the proper judicial authority within a
period of fourteen (14) calendar days counted from the moment the said suspected
person has been apprehended or arrested, detained, and taken into custody by the
law enforcement agent or military personnel.

The period of detention may be extended to a maximum period of (10)

calendar days if it is established that:

1. Further detention of the person/s is necessary to preserve evidence

related to terrorism or complete the investigation;

2. Further detention of the person/s is necessary to prevent the commission

of another terrorism; and

3. The investigation is being conducted properly and without delay.

Note: The maximum period of detention without a judicial warrant shall not
exceed 24 days.

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Notification Requirement

Immediately after taking custody of a person suspected of committing terrorism or

any member of a group of persons, organization or association proscribed under
Section 26, the law enforcement agent or military personnel shall:

1. Notify in writing the judge of the court nearest the place of apprehension or
arrest of the following facts: (a) the time, date, and manner of arrest; (b) the
location or locations of the detained suspect/s and (c) the physical and
mental condition of the detained suspect/s;

2. The law enforcement agent or military personnel shall likewise furnish the
ATC and the Commission on Human Rights (CHR) of the written notice given
to the judge;

3. The head of the detaining facility shall ensure that the detained suspect is
informed of his/her rights as a detainee and shall ensure access to the
detainee by his/her counsel or agencies and entities authorized by law to
exercise visitorial powers over detention facilities.

Note: Failure to observe the notification requirement is punishable under R.A.

11479.

Prohibition against torture or Coercion in

Investigation and Interrogation

1. Torture and other cruel, inhumane and degrading treatment or punishment,

as defined in Sections 4 and 5 of Republic Act no. 9745 otherwise known as
the "Anti-Torture Act of 2009," at any time during the investigation or
interrogation of a detained suspected terrorist is absolutely prohibited and
shall be penalized under said law;
2. Any evidence obtained from said detained person resulting from such
treatment shall be, in its entirely, inadmissible and cannot be used as
evidence in any judicial, quasi-judicial, legislative, or administrative
investigation, inquiry, proceeding, or hearing. (Doctrine of the Fruit of the
Poisonous Tree)

In re: Atty. Howard M. Calleja, et.al. vs. Executive Secretary, et.al. (G.R. No.
252578, December 7, 2021), and all related petitions:
Dispositive Portion:

“WHEREFORE, the petitions in G.R. Nos. 252578, 252579, 252580, 252585,

252613, 252623, 252624, 252646, 252702, 252726, 252733, 252736,
252741, 252747, 252755, 252759, 252765, 252767, 252768, 252802,
252809, 252903, 252904, 252905, 252916, 252921, 252984, 253018,
253100, 253124, 253242, 253252, 253254, 254191 (UDK No. 16714), and
253420 are GIVEN DUE COURSE and PARTIALLY GRANTED.

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 The Court declares the following provisions of Republic Act No. 11479
UNCONSTITUTIONAL:

1. The phrase in the proviso of Section 4 which states "which are not
intended to cause death or serious physical harm to a person, to endanger
a person's life, or to create serious risk to public safety;"

2. The second mode of designation found in paragraph 2 of Section 25; and

3. As a necessary consequence, the corresponding reference/provisions in

the Implementing Rules and Regulations of Republic Act No. 11479
relative to the foregoing items.

Moreover, pursuant to the Court's rule-making power, the Court of Appeals is

DIRECTED to prepare the rules that will govern judicial proscription
proceedings under Sections 26 and 27 of Republic Act No. 11479 based on
the foregoing discussions for submission to the Committee on the Revision of
the Rules of Court and eventual approval and promulgation of the Court En
Banc.

The petitions in G.R. No. 253118 (Balay Rehabilitation Center, Inc. v. Duterte)
and UDK No. 16663 (Yerbo v. Offices of the Honorable Senate President and
the Honorable Speaker of the House of Representatives) are DISMISSED.”

Notes:

1. The last paragraph of Section 4 of R.A. 11479 now reads:

“…when the purpose of such act, by its nature and context, is to intimidate the
general public or a segment thereof, create an atmosphere or spread a
message of fear, to provoke or influence by intimidation the government or
any international organization, or seriously destabilize or destroy the
fundamental political, economic, or social structures of the country, or create
a public emergency or seriously undermine public safety, shall be guilty of
committing terrorism and shall suffer the penalty of life imprisonment
without the benefit of parole and the benefits of Republic Act No. 10592,
otherwise known as "An Act Amending Articles 29, 94, 97, 98 and 99 of Act
No. 3815, as amended, otherwise known as the Revised Penal
Code". Provided, That, terrorism as defined in this section shall not include
advocacy, protest, dissent, stoppage of work, industrial or mass action, and
other similar exercises of civil and political rights. “

2. Paragraph 2 of Section 25 of R.A. 11479 was deleted:

“Request for designation by other jurisdictions of supranational jurisdictions

may be adopted by the ATC after determination that the proposed designee
meets the criteria for designation of UNSCR No. 1373.”

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CRIMES AGAINST THE FUNDAMENTAL LAW OF THE STATE

Republic Act No. 9745 – Anti Torture Act of 2009

"Torture" refers to an act by which severe pain or suffering, whether physical or

mental, is intentionally inflicted on a person for such purposes as:

1. Obtaining from him/her or a third person information or a confession;

2. Punishing him/her for an act he/she or a third person has committed or is

suspected of having committed; or

3. Intimidating or coercing him/her or a third person; or

4. For any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a person in authority or agent of a person in authority. It does
not include pain or suffering arising only from, inherent in or incidental to
lawful sanctions.

"Other cruel, inhuman and degrading treatment or punishment" refers to a deliberate

and aggravated treatment or punishment not enumerated under Section 4 of the Act,
inflicted by a person in authority or agent of a person in authority against a person
under his/her custody, which attains a level of severity causing suffering, gross
humiliation or debasement to the latter.

Acts of Torture

1. Physical torture - a form of treatment or punishment inflicted by a person in

authority or agent of a person in authority upon another in his/her custody
that causes severe pain, exhaustion, disability or dysfunction of one or more
parts of the body, such as:

a. Systematic beating, headbanging, punching, kicking, striking with

truncheon or rifle butt or other similar objects, and jumping on the
stomach;

b. Food deprivation or forcible feeding with spoiled food, animal or

human excreta and other stuff or substances not normally eaten;

c. Electric shock;

d. Cigarette burning; burning by electrically heated rods, hot oil, acid; by

the rubbing of pepper or other chemical substances on mucous
membranes, or acids or spices directly on the wound(s);

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 e. The submersion of the head in water or water polluted with excrement,
urine, vomit and/or blood until the brink of suffocation;

f. Being tied or forced to assume fixed and stressful bodily position;

g. Rape and sexual abuse, including the insertion of foreign objects into
the sex organ or rectum, or electrical torture of the genitals;

h. Mutilation or amputation of the essential parts of the body such as the

genitalia, ear, tongue, etc.;

i. Dental torture or the forced extraction of the teeth;

j. Pulling out of fingernails;

k. Harmful exposure to the elements such as sunlight and extreme cold;

l. The use of plastic bag and other materials placed over the head to the
point of asphyxiation;

m. The use of psychoactive drugs to change the perception, memory.

alertness or will of a person, such as:

i. The administration or drugs to induce confession and/or reduce

mental competency; or

ii. The use of drugs to induce extreme pain or certain symptoms of

a disease; and

n. Other analogous acts of physical torture.

2. Mental/Psychological Torture - refers to acts committed by a person in

authority or agent of a person in authority which are calculated to affect or
confuse the mind and/or undermine a person's dignity and morale, such as:

a. Blindfolding;

b. Threatening a person(s) or his/her relative(s) with bodily harm,

execution or other wrongful acts;

c. Confinement in solitary cells or secret detention places;

d. Prolonged interrogation;

e. Preparing a prisoner for a "show trial", public display or public

humiliation of a detainee or prisoner;

f. Causing unscheduled transfer of a person deprived of liberty from one

place to another, creating the belief that he/she shall be summarily
executed;

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 g. Maltreating a member/s of a person's family;

h. Causing the torture sessions to be witnessed by the person's family,

relatives or any third party;

i. Denial of sleep/rest;

j. Shame infliction such as stripping the person naked, parading him/her

in public places, shaving the victim's head or putting marks on his/her
body against his/her will;

k. Deliberately prohibiting the victim to communicate with any member

of his/her family; and

l. Other analogous acts of mental/psychological torture.

3. Other Cruel, Inhuman and Degrading Treatment or Punishment. - Other

cruel, inhuman or degrading treatment or punishment refers to a deliberate
and aggravated treatment or punishment not enumerated under Section 4 of
the Act, inflicted by a person in authority or agent of a person in authority
against another person in custody, which attains a level of severity sufficient
to cause suffering, gross humiliation or debasement to the latter.

The assessment of the level of severity shall depend on all the circumstances
of the case, including the duration of the treatment or punishment, its
physical and mental effects and, in some cases, the sex, religion, age and state
of health of the victim.

Who are criminally liable?

1. Any person who actually participated or induced another in the commission

of torture or other cruel, inhuman and degrading treatment or punishment or
who cooperated in the execution of the act of torture or other cruel, inhuman
and degrading treatment or punishment by previous or simultaneous acts
shall be liable as principals;

2. Any superior military, police or law enforcement officer or senior government

official who issued an order to any lower ranking personnel to commit torture
for whatever purpose shall be held equally liable as principals;

3. The immediate commanding officer of the unit concerned of the AFP or the
immediate senior public official of the PNP and other law enforcement
agencies shall be held liable as a principal to the crime of torture or other
cruel or inhuman and degrading treatment or punishment for any act or
omission, or negligence committed by him/her that shall have led, assisted,
abetted or allowed, whether directly or indirectly, the commission thereof by
his/her subordinates.

a. If he/she has knowledge of or, owing to the circumstances at the time,

should have known that acts of torture or other cruel, inhuman and

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 degrading treatment or punishment shall be committed, is being
committed, or has been committed by his/her subordinates or by
others within his/her area of responsibility and, despite such
knowledge, did not take preventive or corrective action either before,
during or immediately after its commission, when he/she has the
authority to prevent or investigate allegations of torture or other cruel,
inhuman and degrading treatment or punishment but failed to prevent
or investigate allegations of such act, whether deliberately or due to
negligence shall also be liable as principals.

4. Any public officer or employee shall be liable as an accessory if he/she has

knowledge that torture or other cruel, inhuman and degrading treatment or
punishment is being committed and without having participated therein,
either as principal or accomplice, takes part subsequent to its commission in
any of the following manner:

a. By themselves profiting from or assisting the offender to profit from

the effects of the act of torture or other cruel, inhuman and degrading
treatment or punishment;

b. By concealing the act of torture or other cruel, inhuman and degrading

treatment or punishment and/or destroying the effects or instruments
thereof in order to prevent its discovery; or

c. By harboring, concealing or assisting in the escape of the principal/s in

the act of torture or other cruel, inhuman and degrading treatment or
punishment: Provided, That the accessory acts are done with the abuse
of the official's public functions.

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CRIMES AGAINST PUBLIC ORDER

Rebellion

The crime of rebellion or insurrection is committed by rising publicly and

taking arms against the Government for the purpose of removing from the allegiance
to said Government or its laws, the territory of the Republic of the Philippines or any
part thereof, of any body of land, naval or other armed forces, depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
prerogatives. (as amended by R.A. 6968)

Elements:

1. Public uprising;

2. Taking up arms against the government; and

3. The uprising is for any of the following purposes:

a. Removing any body of land, naval, or armed forces from their allegiance
to the Philippine government or its laws, or from the territory of the
Republic of the Philippines, or any part thereof; or

b. Depriving the Chief Executive (President) or the Legislature (Congress),

either wholly or partially, of any of their powers or prerogatives.

Notes:

1. If any of the acts of rebellion (or sedition) is committed but without a public
uprising, the crime committed is direct assaults under the first mode of its
commission.

2. The proposal and conspiracy to commit rebellion is punishable by law.

3. The failure of a public officer or employee to resist a rebellion by all the

means in their power, or shall continue to discharge the duties of their offices
under the control of the rebels or shall accept appointment to office under
them, is punishable as Disloyalty of Public Officers or Employees under Article
137 of the RPC.

4. The crime of Inciting to Rebellion is committed by any person who, without

taking arms or being in open hostility against the Government, shall incite
others to the execution of any of the acts constituting rebellion, by means of
speeches, proclamations, writings, emblems, banners or other
representations tending to the same end.

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Coup d’etat

The crime of coup d’etat is a swift attack accompanied by violence,

intimidation, threat, strategy or stealth, directed against duly constituted authorities
of the Republic of the Philippines, or any military camp or installation,
communications networks, public utilities or other facilities needed for the exercise
and continued possession of power, singly or simultaneously carried out anywhere
in the Philippines by any person or persons, belonging to the military or police or
holding any public office or employment, with or without civilian support or
participation, for the purpose of seizing or diminishing state power.

Notes:

1. Conspiracy and proposal to commit coup d’etat are punishable;

2. Coup d’etat may or may not be committed with a public uprising for as long as
the purpose is to seize or diminish state power;

3. The crime is committed:

a. By a swift attack accompanied by violence, intimidation, threat,

strategy, or stealth;

b. The attack is directed against:

i. Duly constituted authorities of the Republic of the Philippines;

ii. Any military camp or installation;
iii. Communications network;
iv. Public utilities; or
v. Any other facility needed for the exercise and continued
possession of power;

c. The attack is carried out singly, or simultaneously against multiple

targets anywhere in the Philippines;

d. Committed by members of the AFP, or the PNP, or by public officers or

employees;

e. Committed with or without civilian support or participation.

Note: If civilians participate in the commission of coup d’etat, they are

liable as principals thereof even if they are not public officers or
employees because of the presence of conspiracy.

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Sedition

The crime of sedition is committed by persons who rise publicly and

tumultuously in order to attain by force, intimidation, or by other means outside of
legal methods, any of the following objects:

1. To prevent the promulgation or execution of any law or the holding of any

popular election;

2. To prevent the National Government, or any provincial or municipal

government or any public officer thereof from freely exercising its or his
functions, or prevent the execution of any administrative order;

3. To inflict any act of hate or revenge upon the person or property of any public
officer or employee;

4. To commit, for any political or social end, any act of hate or revenge against
private persons or any social class; and

5. To despoil, for any political or social end, any person, municipality or

province, or the National Government (or the Government of the United
States), of all its property or any part thereof.

Notes:

1. Conspiracy to commit sedition is punishable by law. Proposal to commit

sedition is not punishable.

2. The crime of inciting to sedition is punishable, and is committed by:

a. Any person who, without taking any direct part in the crime of sedition,
should incite others to the accomplishment of any of the acts which
constitute sedition by means of speeches, proclamations, writings,
emblems, cartoons, banners, or other representations tending to the
same end; or

b. Any person or persons who shall utter seditious words or speeches,

write, publish, or circulate scurrilous libels against the (Government of
the United States or the Government of the Commonwealth of the
Philippines), or any of the duly constituted authorities thereof; or

c. Any person who commits any of the acts of incitement which tend to
disturb or obstruct any lawful officer in executing the functions of his
office, or which tend to instigate others to cabal and meet together for
unlawful purposes, or which suggest or incite rebellious conspiracies
or riots, or which lead or tend to stir up the people against the lawful

17
 authorities or to disturb the peace of the community, the safety and
order of the Government;

d. Any person who shall knowingly conceal such evil practices.

Direct Assault

1. Without public uprising, by employing force or intimidation for the

attainment of any of the purposes enumerated in defining the crimes of
sedition & rebellion:

a. That the offender employs force or intimidation;

b. That the aim of the offender is to attain any of the purposes of the
crime of rebellion or any of the objects of the crime of sedition;
c. That there is no public uprising.

2. Without public uprising, by attacking, by employing force or by seriously

intimidating or by seriously resisting any person in authority or agent of a
person in authority, while engaged in the performance of official duties, or on
the occasion of such performance:

a. That the offender:

i. Makes an attack;
ii. Employs force;
iii. Makes a serious intimidation; or
iv. Makes a serious resistance.

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

c. That at the time of the assault the person in authority or his agent is
engaged in the actual performance of official duties, or

d. That he is assaulted by reason of the past performance of his official

duties;

e. That the offender knows that the one he is assaulting is a person in

authority or his agent in the exercise of his duties;

f. That there is no public uprising.

Direct Assault is qualified:

i. When the assault is committed with a weapon;

ii. When the offender is a public officer or employee; or

iii. When the offender lays hands upon a person in authority.

18
 - To be considered as direct assault, the laying of hands or
the use of physical force against the agent of a person in
authority must be serious. (Mallari vs. People of the
Philippines, G.R. No. 224679, February 12, 2020)

- If the use of physical force against agents of persons in

authority is not serious, the offense is not direct assault,
but resistance or disobedience. The laying of hands or
using physical force against agents of persons in authority
when not serious in nature constitutes resistance or
disobedience under Article 151, and not direct assault
under Article 148 of the RPC. This is because the gravity of
the disobedience to an order of a person in authority or
his agent is measured by the circumstances surrounding
the act, the motives prompting it and the real importance
of the transgression, rather than the source of the order
disobeyed. (People vs. Breis, 766 Phil. 785 (2015)

Notes:
1. When the force employed on the agent of a person in authority is of a serious
character, indicating determination to defy the law and its representative, the
crime is committed.

2. The force employed need not be serious when the offended party is a person
in authority.

3. The intimidation or resistance must be serious whether the offended party is

an agent only or he is a person in authority.

4. The following are deemed to be agents of persons in authority:

a. Policeman
b. Municipal Treasurer
c. Postmaster
d. Rural Policeman
e. Agents of the BIR
f. Malacañ an confidential agent
g. Barangay Chief Tanod.

5. There is self-defense in direct assault. When a person in authority or his agent

is the one who provokes and attacks another person, the latter is entitled to
defend himself and cannot be held liable for assault or resistance nor for
physical injuries, because he acts in legitimate defense.

6. The crime of slight physical injuries is absorbed in direct assault.

19
 7. “Weapon” includes not only firearms and sharp or cutting instruments but
also stones, clubs, and any other object with which some physical injury may
be inflicted.

Indirect Assault

Elements:

1. That a person in authority or an agent of the person in authority is the victim

of any of the forms of direct assault defined in Art. 148;

2. That a person comes to the aid of the person in authority or his agent; and

3. That the offender makes use of force or intimidation upon such person
coming to the aid of the person in authority or his agent.

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CRIMES INVOLVING FALSITIES

The most common crimes involving falsities are:

1. Falsification of Documents under Articles 171, 172;

2. Usurpation under Articles 177,178, 179;
3. Using Fictitious Name and Aliases under Article 178 and Republic Act No.
6085; and
4. Perjury under Articles 180, 181, 182, 183.

Falsification of Documents

The crime of falsification involves written statements only. Verbal falsities as a rule
are not to be punished as falsification although they may be punishable as perjury if
those false statements were uttered under oath, usually when a witness testifies in
court.

Falsification of documents may involve the falsification of private or public

documents.

For this purpose, Section 2 of Rule 130 of the Rules of Court defines a “document” as
those which consist of writings or any material containing letters, words, numbers,
figures, symbols or other modes of written expression offered as proof of their
contents. A document to be considered such need not be formally prepared. Any
written material that satisfies the above definition may be considered a document.

Republic Act No. 8792, the Electronic Commerce Act of 2000 defines an “electronic
document” as any document which is executed or expressed in digital or electronic
form, as compared to one which is expressed in a physical written form. Electronic
documents include emails, digital photographs, text messages, scanned documents
and the like. These may also be falsified under the Revised Penal Code.

Public Documents

A public document is any document which originates from a governmental source,

or is a product of government process, or is a private document acted upon to give it
the character of a public document. As to quality, a public document enjoys the
presumption of validity and regularity – that is, there is a

prima facie presumption that the document is valid and genuine, and that it was
created pursuant to the performance of a lawful duty. As such, no further evidence
needs be presented to prove that it is valid, genuine, and regular, unless an
opposition to its validity, genuineness, and regularity is made and that opposition is
supported by sufficient evidence.
21
Section 19 of Rule 132 of the Rules of Court enumerates what are considered public
documents:

“Section 19. Classes of Documents. — For the purpose of their presentation

evidence, documents are either public or private.

Public documents are:

a. The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;

b. Documents acknowledge before a notary public except last wills and

testaments; and

c. Public records, kept in the Philippines, of private documents required by law

to the entered therein.

All other writings are private.”

Article 171 enumerates the acts which are considered falsification of public
documents. It requires that the act must be performed by the actor in their official
capacity and taking advantage of their official position. The following persons are
considered:

1. A public officer or employee, who are elective and appointive officials and
employees, permanent or temporary, whether in the career or non- career
service, including military and police personnel, whether or not they receive
compensation, regardless of amount. (Section 3(b), R.A. 6713)

2. A notary public, who is a member of the Philippine Bar commissioned as

notary public by the Executive Judge of the Regional Trial Court having
jurisdiction over their place of practice. A notary public has the authority to
notarize documents usually by the administration of an oath or by the
execution of an acknowledgment. When a document is notarized, it becomes a
public document which enjoys the following presumptions:

For documents executed under oath, that the contents of that document
are all true and correct to the best of the personal knowledge of the
person executing it, known as the “affiant;”

For documents subject of a notarial acknowledgment, that the parties

freely and voluntarily agreed to all the terms and conditions of an
agreement, and that they all understand the nature and consequences
of the same; and

For both of the above, that the documents under oath or acknowledged
are valid and genuine.

3. An ecclesiastical minister, who for purposes of Article 171 is a person

ordained by their religious group to have the authority to officiate marriages.

22
Falsification as an Intentional Felony

The act of falsification may only be committed intentionally.

It is intentional when the offender deliberately commits any act of falsification under
Article 171, knowing fully well the consequences of such act.

The following acts are considered falsifications by public officers or by lawyers who
are commissioned notaries public:

1. Counterfeiting or imitating any handwriting, signature or rubric.

- A “counterfeit” or “imitation” refers to an unauthorized copy of the

original handwriting, signature or rubric. By the act, the offender makes
a copy or a simulation of the original, as if it was the owner of the
handwriting, signature or rubric who indicated it.

Example – Because his supervisor was still in a meeting, Jose indicated

his supervisor’s signature in a voucher so that he can leave work already
instead of waiting for the meeting to finish.

2. Causing it to appear that persons have participated in any act or proceeding

when they did not in fact so participate.

- The act involves the falsification of a record showing that a person

performed an act or attended a proceeding.

Example 1 – Atty. Jose, a notary public prepared an affidavit for Jacinto.

The jurat in the affidavit’s notarial oath states,

“Subscribed and sworn before me…,” a statement which says that the
affiant signed (subscribed) and took an oath of truthfulness (sworn)
before the notary public. Jose notarized the affidavit without the
personal appearance of Jacinto, the affiant.

Example 2 – Jose and his workmates are supposed to attend a 3-day

seminar. Jacinto, Jose’s friend has to attend a wedding on the second day
of the seminar so he asks Jose to sign his (Jacinto’s) name in the
attendance sheet so that he will not be marked absent, which Jose does.

3. Attributing to persons who have participated in an act or proceeding

statements other than those in fact made by them.

- This act involves the alteration of statements made by persons, or by

indicating statements when no statement was made by that person. It

23
 also involves willfully crafting a statement to change the way the person
intended the statement to mean.

Example 1 – In a news article, Jose wrote that Senator Jacinto voted

“yes” to a measure to divert COVID-19 funds to another purpose, when
in fact Senator Jacinto voted “no.”

Example 2 – In a news article, Jose wrote that Senator Jacinto voted

“yes” to a measure to divert COVID-19 funds to another purpose, when
in fact Senator Jacinto was absent during that session.

Example 3 – In a proposed measure to divert COVID-19 funds to

another purpose, Senator Jacinto abstained from voting – a sign that he
neither agreed nor disagreed with the proposed measure. In a news
article, Jose wrote that Senator Jacinto voted “no.”

4. Making untruthful statements in a narration of facts.

- This act involves the willful and deliberate falsification of a narration of

facts in order to mislead the person reading it. It excludes honest
mistakes or misappreciation of facts, as well as the personal perceptions
of the person making the narration of facts because personal
perceptions on certain events may differ between individuals.

Example 1 – Jose executed a narration falsely accusing Jacinto of

defrauding him when Jacinto refused to push through with an
agreement. In truth there was no such agreement between Jose and
Jacinto.

Example 2 – Jose wrote in his sworn statement that he saw Jacinto

draw a firearm to shoot Javier. The truth of the matter is that Jacinto
drew his firearm to warn Javier so that he will not continue with his
unlawful aggression against him. There is no falsification here because
Jose may have honestly misappreciated the facts, or he may have been
narrating the events based on his perception. There is falsification if
Jose knew the true details of the event but nevertheless made his
statement untruthfully.

5. Altering true dates.

- The act relates to the changing of a date to a false one, or inserting a

false date on a blank form.

Example 1 – The contract between Jose and Jacinto states that it is

effective from September 12, 2020 to September 11, 2025. To increase
the period of validity Jose alters the date “September 11, 2025” to read,
“September 11, 2035.”

Example 2 – The check issued by Jose to Jacinto on October 2, 2020 was

undated. Although the agreement was that the check was to be

24
 postdated to October 2, 2021, Jacinto inserted the date, “October 2,
2020” so that he will be able to encash it already.

6. Making any alteration or intercalation in a genuine document which changes

its meaning.

- The wordings of a document have a direct impact on what it means,

which may affect the rights and obligations of the parties to it.

Example 1 – The Special Power of Attorney granted by Jose to Jacinto

and Javier named them as “Jacinto and Javier,” which meant that both of
them shall perform the acts delegated to them by Jose. To relieve himself
of the duty, Jacinto crosses out the word, “and” and superimposes the
word “or” to make it appear that any one of them shall perform the duty.

Example 2 – The document reads that “Jose acknowledged Jacinto’s

debt to him in the amount of Php50,000.00.” Jacinto erases the word,
“acknowledges” and writes, “waives” in its place to make it appear that
Jose has given up Jacinto’s debt to him.

7. Issuing in an authenticated form a document purporting to be a copy of an

original document when no such original exists, or including in such a copy a
statement contrary to, or different from, that of the genuine original.

- The existence of an authenticated copy presupposes the existence of an

original copy. This means that the authenticated copy is a mere
reproduction of the original, which cannot exist if the original does not
exist. This also means that the authentic copy must be a true and faithful
reproduction of the original copy, where all contents must be exactly the
same.

Example 1 – Jose, a clerk at the Philippine Statistics Office, issues a

“certified copy” of a marriage certificate between Jacinto and Javiera.
The truth is that Jacinto and Javiera were never married and there was
never a marriage certificate in their favor.

Example 2 – Jose executes an Affidavit of Loss, stating that he lost his

original copy of his land title bearing Title No. T-8900 when in truth, he
does not have a title over the property covered by T-8900, which is
actually owned by Jacinto. Because of the Affidavit of Loss, Javier
willfully issues a duplicate title in Jose’s favor, naming him as the owner
thereof.

Example 3 – The receipt issued for a law book Jose purchased for his
office indicated that the book costs Php 900.00. Jose wrote on a small
piece of paper the figure, “Php2,900.00 and taped it onto the receipt,
and then photocopied the receipt. He used the photocopy to get a
“reimbursement” of Php2,900.00 from his office.

8. Intercalating any instrument or note relative to the issuance thereof in a

protocol, registry, or official book.

25
 - The “instrument” or “note” may be a commercial instrument issued in
the ordinary course of business. Whenever an original is issued there
may be a duplicate original that remains in a record as proof of its
issuance. Intercalating an instrument or note in the record is intended
to prove that an instrument or note was actually issued when in truth, it
was not.

Example – Jose was the accounting clerk of a hardware store. He took

Php10,000.00 from the cash register for his personal purposes. To make
it appear that the amount was used to pay for repair works, Jose made a
voucher for that amount and inserted it into the book of accounts to
make it appear that Php10,000.00 was taken from the store’s funds to
pay for repair works, when no repair works were actually done or
needed payment.

The act of falsification committed by an ecclesiastical minister, to be considered as

an act falling under the last paragraph of Article 171, thus involving public
documents must affect the civil status of persons which is, the fact of their being
married or not. It may involve the falsification of a marriage certificate between two
persons when they are not actually married to each other, or when they did not go
through the requisite marriage ceremony.

If the act of an ecclesiastical minister does not affect the civil status of persons, as in
the falsification of a baptismal certificate where the person baptized was not
actually baptized, the falsification involves a private document, not a public one.

Liability of Private Individuals for Falsification

A private individual who commits any of the acts of falsification in Article 171 will
also be liable for falsification of public documents but will be penalized with a lower
penalty. If that private individual conspired with a public officer, notary public or
ecclesiastical minister, their collective liability will be that indicated in Article 171
because when there is conspiracy, every conspirator is liable in equal degrees.

Falsification of Private Documents

The acts of falsification in Article 171 involve the falsification of public documents
because the offender there is a public officer or employee.

A notary public, while a private practitioner, is a public officer within the purview of
Article 171 because the notarial commission is one impressed with public interest
and all notarized documents (except a last will and testament) are converted from
private documents to public documents, but only insofar as the presumption of
validity is concerned. Public access to notarized documents may be bound by
limitations on confidentiality.

An ecclesiastical minister, while also a private individual, performs functions

affecting the civil status of persons – again an act involving public interest.

26
If a private person will commit any act under Article 171 in his private capacity, or if
a public officer or employee, notary public or ecclesiastical minister will not abuse
their public positions while committing the acts of falsification under Article 171,
the crime committed is Falsification of Private Documents. It is essential here that:

1. The offender causes damage to a third person (intention is irrelevant); or

2. The offender intends to cause damage to a third person, where an actual
damage is not necessary (intention is relevant).

A private individual may use a falsified document for any of the following purposes:

1. To cause damage to a third person;

2. As evidence in a judicial proceeding (a court case).

In case the private individual uses the document they falsified, they will be liable for
BOTH (i) falsification of documents under Article 171 in relation to Article 172, and
(ii) use of falsified documents under Article 172.

In case it is a public officer, notary public or ecclesiastical minister who uses the
public document they falsified, they will also be liable for BOTH (i) falsification of
documents under Article 171 and (ii) use of falsified documents under Article 172.

Falsification of Documents, when the falsified document is a notarized one

A distinction must be made in case falsity was committed on a document which was
subsequently notarized.

As previously stated, a notarial oath is administered using a jurat, where the notary
public states that the person taking the oath, knows as the “affiant,” has signed the
written document in the presence of the notary public and that the latter
administered the oath. Thus, the affiant affirms that the contents of their written
statement are all true and correct based on their personal knowledge or as they may
verify from existing records. If the affiant willfully states falsehood in their sworn
statement, they are liable for perjury because they willfully stated falsehood under
oath. If the notary public conspired with the affiant, the notary public is liable also
for perjury as a co-conspirator.

Query: If the notary public knew that the affiant was lying in the latter’s written
statement but nevertheless, administers a jurat on it, is the notary public criminally-
liable for perjury?

Answer: No. While the affiant is liable for perjury for having stated falsehood under
oath, the notary public will not be liable provided that there is no conspiracy. But by
willfully allowing falsehood to be put in writing, and administering an oath thereto,
the notary public violates the condition of his commission, as well as the Code of
Professional Responsibility. While there may be no criminal liability, there may be
administrative liability for committing an unethical act.

But when the document which was falsified is a contract – a deed of sale, contract of
loan, contract of mortgage, etc., the liability of the person responsible for the
falsehood is for falsification of documents, not perjury. This is because in a
27
commercial document such as a contract, the notary public administers a notarial
acknowledgment, which is a statement containing the affirmation by the contracting
parties that they freely and voluntarily entered into the commercial transaction.
There is no oath involved, so perjury cannot happen.

When a notary public conspires with the falsity of a contracting party, he becomes a
co-conspirator for falsification. When a notary public consents to the falsity without
being a co-conspirator, the notary public violates the condition of his commission, as
well as the Code of Professional Responsibility. While there may be no criminal
liability, there may be administrative liability for committing an unethical act.

Falsification by Physicians

Article 174 punishes the issuance of false medical certificates because it is also
against public interest. But for this to apply, the following must concur:

1. The issuance of the medical certificate is in connection with the practice of

the physician’s profession;
2. The medical certificate does not truly reflect the medical condition or status
of the patient.

The patient who uses the false medical certificate will be liable for violation of
Article 175.

In case the physician issues a false prescription for drugs – that is, for medication
that the patient does not need, the physician and the patient will be liable for
violation of Republic Act No. 9165, not Article 174.

If the physician is a public officer (a Municipal Medical Officer or an employee of a

government medical institution, perhaps) they may be liable for violation of Article
171(4) for making untruthful statements. The medical certificate in this case is a
public document. This is also without prejudice to possible liability for violation of
Article 174 which punishes the issuance of a false medical certificate because under
Article 171, falsification is punished for the abuse of public function while in Article
174, the mere act of issuing a false medical certificate with or without abuse of
public function is punishable.

False Certificates of Merit or Service

Article 174(2) involves the issuance of a false certificate stating that an individual
has rendered some service where no service was actually rendered, or that an
individual possesses a certain professional quality or qualification (such as having
attended a training program), when there is no such quality or qualification.

While the offender here is a public officer, the specific act of issuing a false certificate
should only be punishable under Article 174(2), not Article 171 because it is
specifically-defined under the former law.

However the act of issuing a false certificate may also be punishable under Article
171(2) or Article 171(7), depending on how the act was done.

28
Falsification of Documents, Complexed with Common Crimes

Falsification of documents may be complexed with common crimes in the sense that
they may be taken as a complex crime proper with some common crimes. This is so
because the falsification of documents may be the means to commit another crime.

Example – Jose falsifies a list of attendees to a conference, making it appear that 50

people attended when in fact only 30 were there. Jose pockets the money intended
for the registration, travel, lodging and miscellaneous expenses of the other 20
people, which is fraudulent in nature. Jose will be liable for Estafa through
Falsification of Public or Private Documents, as the case may be. If Jose is a public
officer or employee he is liable for Malversation through Falsification of Public
Documents, because Jose, as a public officer or employee took advantage of his
public position and the document prepared by him in his official capacity is
considered to be a public document. And in either case, Jose will also be liable for a
separate charge of Use of Falsified Document under Article 172.

Usurpation

“Usurpation” is the act of unlawfully claiming or attributing to oneself a

qualification, position or quality without having the right or authority to do so. The
following may be subject of usurpation:

1. Public or official authority; or

2. Official functions.

The act is consummated once the offender knowingly represents himself to be any of
the persons stated in Article 177 while knowing fully well the falsity of such
representation.

The felony may be committed in two ways:

1. To knowingly and falsely represent himself to be an officer, agent or

representative of any department or agency of the Philippine Government or
of any foreign government.

- The offender must know that he is not an officer, agent or

representative of any government or agency, and the representation
to a third person must be untrue. It is not necessary that the offender
attempt or actually discharge the functions that should pertain to the
official position because here, the mere false representation is already
punishable.

Example 1 – When Jose was pulled over by MMDA personnel along

EDSA for driving with a broken headlight, Jose told the MMDA officer
that he is a Police Major of the NCR Police Office. In truth, Jose is a
Police Master Sergeant in the NCRPO.

Example 2 – Jose, a medical representative for Unilever parked his

car along Kisad Road to visit the clinic of one of his clients. When
29
 traffic officers started to issue him a traffic citation ticket for parking
in a no-parking zone, he represented himself to be the official driver
of the Ambassador of Korea and that the vehicle he is driving is a
diplomatic vehicle, hence exempt from the coverage of local traffic
laws.

2. While under pretense of official position, shall perform any act pertaining to
any person in authority or public officer of the Philippine Government or any
foreign government, or any agency thereof, without being lawfully entitled to
do so.

“Pretense of official position” refers to a false assertion that one occupies an

official position. In this case the offender must perform an act that pertains
only to the holder of that official position.

Example 1 – Jose had a traffic altercation with Jacinto. When both of them
stepped out of their cars to confront each other, Jacinto, a driver employed
with the Land Transportation Office identified himself to be a high-ranking
officer of the LTO and demanded to see Jose’s driver’s license. When Jose
produced his license Jacinto took it in the guise of confiscation, an act that
Jacinto had no authority to perform.

If Jacinto did not perform any act pertaining to the owner of the official
position, he is still liable for usurpation of authority under the first manner of
its commission.

Example 2 – Bothered by their noisy neighbors, Jose, an off- duty police

officer went out of his house and told his neighbors to quiet down or he will
arrest them under his authority as a police officer.

Jose is not liable for usurpation of authority. While he is off-duty, he is still in

possession of an official rank with a corresponding official duty that he as
authority to perform.

Illegal Use of Uniforms or Insignia

Uniforms and insignia are indicative of a particular official position or rank. These
pertain only to persons who possess such position or rank and they are the only
ones who are entitled to use them.

The uniform or insignia need not be that of a public office or position. It may refer to
any uniform or insignia that pertains to a particular office or a class of persons of
which the offender is not part of or a member.

Example 1 – Jose wore a BDU (battle dress uniform) of the Philippine Army and
went to attend a meeting of his motorcycle riding group. Jose is not an enlisted or
reserve member of the Armed Forces of the Philippines.

Example 2 – Jose put on the blue exercise shirt of the Philippine National Police
with the word “PULIS” written at the front. Jose is not a police officer.

30
Example 3 – Jose, an applicant for admission as member of the PMA Shooting Club,
used the official decal of the club (an official insignia) and affixed it onto his vehicle.

Good Faith as a Defense against a charge for Usurpation

A person accused for usurpation may make use the defense of good faith in their
representation or performance of functions, but only where there is a bona fide
claim of entitlement to the position or function.

Example 1 – Jose received news that he was appointed as the Chief of the Bureau of
Customs. Upon verification from the Civil Service Commission the appointment was
confirmed. He reported to the main office of the Bureau and filled out a form,
indicating himself as the Bureau Chief. It turns out that his appointment should take
effect only after the appointment paper has been received by him, which he has not.
Jose may use the defense of good faith because being a confirmed appointee, he had
a bona fide belief of his entitlement to the position.

Example 2 – PMAJ Jose was manning his post as Team Leader of the Border
Checkpoint set up by the PNP. Unknown to him on that day the Chief of the PNP
ordered his relief from his post on account of accusations of graft and corruption
against him, albeit false. Jose may claim good faith as a defense because he was
performing his usual duties and he did not know of the order relieving him from his
post.

Using Fictitious Name and Concealing True Name

The law requires persons to use their true and full names at all times for proper
identification as a requirement of public interest and for public safety and security.

An “alias” is an alternate name used by a person to refer to them. It may refer

to a nickname or a shortened version of their full name.

Article 178 punishes the use of an alias if the use thereof is for any of the following
purposes:

1. To conceal a crime;
2. To avoid execution of a judgment; or
3. To cause damage.

Republic Act No. 6085 on the other hand regulates the use of aliases to avoid
situations where a person will be falsely identified, or that a person will be able to
avoid liability for having given a false name.

Under the law, aliases may be lawfully used as a pseudonym solely for literary,
cinema, television, radio or other entertainment purposes and in athletic events
where the use of pseudonym is a normally accepted practice.
The rationale is to provide persons engaged in literary, cinema, television, radio,
entertainment and athletic professions with some privacy in their transactions and
for personal security.
31
For all other cases, a person intending to use an alias must apply for authority to use
the alias in a judicial proceeding. But in case the person does not possess judicial
authority to use the alias, they may indicate their alias in their documents and
correspondence provided they also affix their true name.

Example 1 – Jose Lopez was identified as the driver of a vehicle that ran over
Jacinto, causing him serious physical injuries. But when Jose was finally traced by
investigating police officers, he identified himself as “Jose Santos” in order to conceal
his identity and to avoid being identified as the perpetrator of the crime.

Example 2 – Jose Lopez was adjudged liable by final judgment to pay Jacinto PHP3
million pesos in actual damages. When the court sheriff came to Jose’s residence
with a writ of execution, Jose identified himself as “Desiderio Tulipa,” and to divert
the sheriff’s attention, told him that “Jose Lopez” was his boarder who already left
the leased premises.

Example 3 – Jose Lopez owed Jacinto Php50,000.00. Upon issuance of a demand

letter from Jacinto’s legal counsel, Jose represented himself as “Jose Emeterio” to
avoid being served with the demand letter, causing further damage and loss to
Jacinto who could not recover the amount he lent to Jose,

Example 4 – Kimberly Sue Yap Chiu publicly uses the name “Kim Chiu” as her
entertainment pseudonym. She does not need to obtain judicial authority to use the
alias because she enjoys exemption under R.A. 6085 as a person engaged in the
entertainment industry.

Example 5 – The name, “Xander Ford” cannot be used as a legal name to replace the
birth name or official name without judicial authority. It is considered a pseudonym
for entertainment purposes only.

Perjury

Perjury is a crime of lying under oath. An oath for purposes of execution of

documents and for judicial processes involves an individual making a solemn
affirmation that all statements written or uttered are all true and correct based on
their personal knowledge or as they may verify from authentic documents. To be
punishable, the following elements must concur:

1. The offender gives a statement whether written or verbal;

2. The offender knowingly gives false testimony for or against the plaintiff or
defendant in a civil case, or the plaintiff or the accused in a criminal case; and
3. The offender makes the false testimony on any matter while under oath or
under a solemn affirmation to speak only the whole truth.

In all other cases where the offender gives testimony or executes a document under
oath (an affidavit, sworn statement or statement of assets, liabilities and net worth,
perhaps), the falsity must be on a material point – that is, the falsity must be
substantial and must affect the main issue in the case.

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Article 180 refers to a witness for the prosecution who falsely testifies against the
accused (referred to as the “defendant” in the RPC.)

Example – Jose testifies that he saw Jacinto steal the necklace of Javier when
in truth, Jose was not in the place where the alleged incident happened so he
could not have seen Jacinto take the item.

Article 181 refers to a witness for the defense who falsely testifies for the accused.

Example – Jose testifies that Jacinto was with him in a bar at the time that
Javier’s necklace was stolen when in truth, they were not together at the time.

Article 182 refers to a witness who falsely testifies for or against the plaintiff, or for
or against the defendant or respondent in a civil case.

Article 183 refers to testimonies or written statements under oath in all other cases,
including the execution of a false affidavit, but on a material point that affects the
issue in the case.

Example 1 – Jose stated in his Affidavit of Loss that he lost his Quarantine
Pass when he was organizing his things. The truth was that he only wanted a
duplicate pass to be issued for his own convenience.

Example 2 – Jose stated in his Affidavit of Witness that he first met Jacinto,
who is charged for theft, on February 14, 2002. The truth is that they first met
on December 22, 2001. Jose will not be liable for perjury because the date
when he and Jacinto met is not on a material point to prove or disprove the
charge for theft.

THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

Republic Act No. 9165

RA 9165 contemplates various acts that may be drug-related, or not directly related
to drugs but related to the production or manufacture thereof, or allowing its
proliferation and use.

As RA 9165 is a special penal law, the following matters must be taken into
consideration:

1. Good faith not being a tenable defense in certain cases;

2. Non-usage of the nomenclature of penalties under the Revised Penal Code;

3. Imposition of an indeterminate sentence within the range of the penalty

provided by the law, unless the penalty imposed is life imprisonment or when
the convict is a habitual delinquent within the definition of the RPC, and other
disqualifications under the Indeterminate Sentence Law; and

4. Non-application of the benefit of probation for cases punishable by

imprisonment exceeding 6 years’ imprisonment.

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Commission of a Crime while under the Influence of Dangerous Drugs

Being under the influence of a dangerous drug while committing a crime is a

qualifying circumstance as provided by Section 25 of the law.

But this qualifying circumstance is not to mean that the offense will be qualified,
such as that of homicide qualified to murder, or of theft to qualified theft. The effect
of being under the influence of a dangerous drug only qualifies the penalty such that
the penalty imposable by law for the crime committed while under the influence of a
dangerous drug will be the penalty which is next higher under the law violated.

Prohibited Acts:

1. Importation of Dangerous Drugs and/or Controlled Precursors and Essential

Chemicals.

A “dangerous drug” is any substance that is considered unsafe for purposes of

self-medication. It may be acquired and used with a requisite prescription
subject to compliance with the instructions of the prescribing physician, or be
absolutely prohibited as to acquisition, possession and use. It includes those
listed in the Schedules annexed to the 1961 Single Convention on Narcotic
Drugs, as amended by the 1972 Protocol, and in the Schedules annexed to the
1971 Single Convention on Psychotropic Substances.

A “controlled precursor” and “essential chemical” is any substance that may

be used for the manufacture of a dangerous drug.

The concept of importation involves the entry of foreign products into the
Philippines. Although normally the process of importation is complete once
the imported product is cleared by the Bureau of Customs (BOC) and the
proper import tax is paid.

However, for liability under this act to set in it is sufficient that there is an
attempt to import the prohibited product such that once it is detected by the
Bureau of Customs, the importer (the person who will receive the imported
product) and the shipper (the person who sent the product) will be held
liable for importation, even if the product was not cleared by the BOC.

It is essential that the shipper and/or the importer knew of the prohibited
product for liability to set in and that they willfully carried out the
transaction.
2. Sale, Trading, Administration, Dispensation, Delivery, Distribution and
Transportation of Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals;

This covers all possible transactions involving dangerous drugs to prevent the
accused from using terminologies or phraseologies to avoid liability.

34
 The acts stated contemplate the possession of dangerous drugs or controlled
precursors and essential chemicals for the purpose of consummating a
transaction or for the purpose of initiating one. Note that an attempt to
commit any of the acts above is already punishable by law.

3. Maintenance of a Den, Dive or Resort, Willfully and knowingly working as

employees of, or willfully and knowingly visiting a drug den, dive or resort;

A den, dive or resort refers to any place where any dangerous drug and/or
controlled precursor and essential chemical is administered, delivered, stored
for illegal purposes, distributed, sold or used in any form.

The owner, lessor, proprietor or possessor of the premises used as a drug den,
dive or resort is liable for this act. Note here that good faith is a possible
defense where the property owner, lessor, proprietor or possessor is able to
prove by competent evidence that they did not know that the premises were
being used as a drug den, dive or resort.

Any person who knowingly works in a drug den, dive or resort without being
forced or coerced or threatened to do so, including any person who knowingly
and willfully visits a drug den, dive or resort is liable under this act. It does
not matter if the employee does not perform any drug-related act or if the
visitor visited the place without committing any drug-related act. The offense
here is committed by the mere act of working in or visiting a drug den, dive or
resort coupled with the knowledge that the place is such.

Only the Philippine Drug Enforcement Agency (PDEA), the Philippine National
Police Crime Laboratory and the National Bureau of Investigation have
authority to maintain dangerous drugs (DD) and controlled precursors and
essential chemicals (CP/EC) in storage and only for the purpose of
investigating and assisting in the prosecution of drug-related offenses. But
once the DD and CP/EC has been identified and proven as evidence, these
must be destroyed in accordance with law and procedure.

No private individual has the right or authority to maintain DD and CP/EC in

their possession unless they have authority granted by the Dangerous Drugs
Board (DDB) or by any other competent governmental authority.

4. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential

Chemicals;

The act of “manufacturing” includes the production, preparation,

compounding or processing of any dangerous drug and/or controlled
precursor and essential chemical, either directly or indirectly or by extraction
from substances of natural origin, or independently by means of chemical
synthesis or by a combination of extraction and chemical synthesis, and shall
include any packaging or repackaging of such substances, design or
configuration of its form, or labeling or relabeling of its container; except that

35
 such terms do not include the preparation, compounding, packaging or
labeling of a drug or other substances by a duly authorized practitioner as an
incident to his/her administration or dispensation of such drug or substance
in the course of his/her professional practice including research, teaching and
chemical analysis of dangerous drugs or such substances that are not
intended for sale or for any other purpose.

The broad definition of “manufacturing” involves any processing of DD and

CP/EC without having the lawful authority to do so or if the act is not
connected with the practice of a lawful profession or the conduct of legitimate
research, which must be under the authority of the DDB.

What is being punished in this act is the processing of DD and CP/EC without
authority from the DDB.

5. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals;

“Chemical diversion” involves the sale, distribution, supply or transport of

legitimately imported, in-transit, manufactured or procured controlled
precursors and essential chemicals, in diluted, mixtures or in concentrated
form, to any person or entity engaged in the manufacture of any dangerous
drug, and shall include packaging, repackaging, labeling, relabeling or
concealment of such transaction through fraud, destruction of documents,
fraudulent use of permits, misdeclaration, use of front companies or mail
fraud.

By “diversion,” legitimately imported CP/EC is transferred to a person or

entity, who in turn uses the legitimate products to manufacture dangerous
drugs.

The concept of illegal chemical diversion is misdirection – the manufacture

and trade in dangerous drugs is done in the guise of a legitimate activity.

6. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other

Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential
Chemicals;

This refers to things used to manufacture or use DD and CP/EC. In criminal

investigation it must be established that the thing manufactured or delivered
is intended to be used for a drug-related purpose or is actually used for a
drug-related purpose.

7. Possession of Dangerous Drugs,

Possession here must be understood to mean knowledgeable, willful and

voluntary possession of dangerous drugs, which must also be understood in
two concepts: actual and constructive.

36
 Actual possession involves having a thing directly in the hands or control of
the possessor, while constructive possession involves not having a thing
directly in the hands of the possessor but subject to that person’s authority or
control.

For instance, having a marijuana cigarette in one’s wallet is proof of actual

possession, while having a similar cigarette in one’s cabinet at home while the
owner is out of the residence is proof of constructive possession. Otherwise
stated, it is the actual possessor who will be liable for illegal possession of
dangerous drugs. On constructive possession on the other hand, it is the
lawful possessor or owner of the premises who will be held liable for the
illegal possession.

Note again that lack of knowledge of possession is a valid defense, as in the

case where evidence was “planted.” On the other hand, knowledgeable, willful
and voluntary possession in good faith is not a defense in this case because
the law does not concern itself with the intention of the possessor, unless in
theory, if the possessor was en route to a police station to surrender a pack of
dangerous drugs found by him. In that sense, possession in good faith may be
accepted because we need to take into consideration the moral predisposition
of the possessor and the public service that was done when the drugs were
surrendered. More so, this interpretation will not discourage civilians from
assisting law enforcement agencies in the disposal of dangerous drugs.

8. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for

Dangerous Drugs;

Possession in this case to be punishable must be qualified: the possessor must

have no legitimate purpose in possessing equipment, instruments, apparatus
or paraphernalia and there is evidence that the said items are used in relation
to dangerous drugs.

This qualification is necessary because drug paraphernalia may almost always

take the form of everyday items such as spoons, aluminum foil, butane
lighters, syringes, tourniquets, Bunsen burners, test tubes and the like, such
that the possessor must be able to justify its possession.

For instance, a medical student may be justified in her possession of a syringe

and a tourniquet. On the other hand, a law student has no business having any
of the aforesaid items in his possession, except maybe for a butane lighter
perhaps.

9. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings

and Possession of Equipment, Instrument, Apparatus and Other Paraphernalia
for Dangerous Drugs During Parties, Social Gatherings or Meetings;

This is especially punishable not because of the fact of possession but because
that fact of possession brings with it the potential of public distribution of a
dangerous drug.

37
10. Use of Dangerous Drugs;

The penalty for drug use is significantly lower than that for possession or
trafficking in dangerous drugs.

A first-time offender will not be sentenced to imprisonment; rather, the

offender will be subjected to a minimum of 6 months rehabilitation in a
government center. A penalty of imprisonment and payment of a fine will be
imposed for subsequent offenses.

However, if the offender who tested positive after a confirmatory test is also
found to be in possession of dangerous drugs, the offender will not be
punished for use; rather the charge will be for illegal possession of dangerous
drugs.

11. Cultivation or Culture of Plants Classified as Dangerous Drugs or Are Sources

Thereof;

This includes the planting of prohibited flora even if the same is intended for
aesthetic purposes. The law does not distinguish between a lawful purpose
and an unlawful purpose nor does it concern itself with the intention of the
planter.

Good faith may be a valid defense, but not in the sense that the offender did
not intend to use the plant to produce drugs. Good faith may be invoked in the
form of honest mistake or ignorance as to the specie of plant cultivated, as
plants such as the opium poppy and the coca plant resemble usual garden
variety plants. This good faith however cannot be validly invoked where the
plant is distinctly and publicly recognizable, as in the case of a marijuana
plant which is easily identifiable.

12. Failure to maintain and keep Original Records of Transactions on Dangerous

Drugs and/or Controlled Precursors and Essential Chemicals;

Proprietors of establishments selling chemicals are required by the

Dangerous Drugs Board to maintain a record of transactions, including their
inventory so that the presence of CP/EC can be monitored. This is also a
condition for the grant of a permit to engage in the trade of chemicals.

13. Unnecessary Prescription of Dangerous Drugs;

38
 This act is committed by a licensed practitioner – a physician perhaps, who
issues a prescription for drugs where the patient’s physiological condition
does not require it.

14. Unlawful Prescription of Dangerous Drugs;

Physicians and other medical practitioners are the only professionals

specifically-authorized by law to issue prescriptions for the purchase and use
of dangerous drugs. Commission of this act requires that the person making
the prescription has no authority to issue the same.

15.Attempt or Conspiracy. – Any attempt or conspiracy to commit the following

unlawful acts shall be penalized by the same penalty prescribed for the
commission of the same as provided under RA 9165:

a. Importation of any dangerous drug and/or controlled precursor and

essential chemical;

b. Sale, trading, administration, dispensation, delivery, distribution and

transportation of any dangerous drug and/or controlled precursor and
essential chemical;

c. Maintenance of a den, dive or resort where any dangerous drug is used

in any form;

d. Manufacture of any dangerous drug and/or controlled precursor and

essential chemical; and

e. Cultivation or culture of plants which are sources of dangerous drugs.

16. Misappropriation, Misapplication or Failure to Account for the Confiscated,

Seized or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs,
Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia
and/or Laboratory Equipment Including the Proceeds or Properties Obtained
from the Unlawful Act Committed by a Public Officer or Employee;

17. Planting of Evidence.

“Planting” is defined as the willful act by any person of maliciously and

surreptitiously inserting, placing, adding or attaching directly or indirectly,
through any overt or covert act, whatever quantity of any dangerous drug
and/or controlled precursor and essential chemical in the person, house,
effects or in the immediate vicinity of an innocent individual for the purpose
of implicating, incriminating or imputing the commission of any violation of
the law.

39
Section 21 of R.A. 9165
As amended by R.A. 10640

Section 21 of Republic Act No. 9165, otherwise known as the "Comprehensive

Dangerous Drugs Act of 2002", was amended by R.A. 10640 on July 15, 2014 to read
as follows:

"SEC. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered

Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and
Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment.
– The PDEA shall take charge and have custody of all dangerous drugs, plant
sources of dangerous drugs, controlled precursors and essential chemicals, as
well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the
following manner:

(1) The apprehending team having initial custody and control of the
dangerous drugs, controlled precursors and essential chemicals,
instruments/paraphernalia and/or laboratory equipment shall,
immediately after seizure and confiscation, conduct a physical
inventory of the seized items and photograph the same in the presence
of the accused or the person/s from whom such items were confiscated
and/or seized, or his/her representative or counsel, with an elected
public official and a representative of the National Prosecution Service
or the media who shall be required to sign the copies of the inventory
and be given a copy thereof: Provided, That the physical inventory and
photograph shall be conducted at the place where the search warrant is
served; or at the nearest police station or at the nearest office of the
apprehending officer/team, whichever is practicable, in case of
warrantless seizures: Provided, finally, That noncompliance of these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such
seizures and custody over said items.

"x x x

(3) A certification of the forensic laboratory examination results, which

shall be done by the forensic laboratory examiner, shall be issued
immediately upon the receipt of the subject item/s: Provided, That
when the volume of dangerous drugs, plant sources of dangerous
drugs, and controlled precursors and essential chemicals does not
allow the completion of testing within the time frame, a partial
laboratory examination report shall be provisionally issued stating
therein the quantities of dangerous drugs still to be examined by the
forensic laboratory: Provided, however, That a final certification shall
be issued immediately upon completion of the said examination and
certification;

"x x x."

40
Drug Inventory

The law requires that a drug inventory be immediately undertaken after the
respondent was arrested and drug or non-drug evidence is obtained from his person
or from his immediate vicinity.

The drug inventory must be conducted in the presence of at least TWO (2)
INSULATING WITNESSES:

1. An elected public official; and

2. A representative of the National Prosecution Service (NPS) OR of the media.

Representatives of the NPS and media are alternative witnesses in case one of them
is not available.

Chain of Custody

“Chain of custody” means the duly recorded, authorized movements, and custody of
the seized drugs at each stage, from the moment of confiscation to the receipt in the
forensic laboratory for examination until it is presented to the court.

As a method of authenticating evidence, the chain of custody rule requires that the
admission of an exhibit be preceded by evidence sufficient to support a finding that
the matter in question is what the proponent claims it to be. It would include
testimony about every link in the chain, from the moment the item was picked up to
the time it is offered into evidence, in such a way that every person who touched the
exhibit would describe how and from whom it was received, where it was and what
happened to it while in the witness' possession, the condition in which it was
received and the condition in which it was delivered to the next link in the chain.
These witnesses would then describe the precautions taken to ensure that there had
been no change in the condition of the item and no opportunity for someone not in
the chain to have possession of the same. (Malillin vs. People, 576 Phil. 576 (2008).

The Supreme Court in People vs. Kamad (624 Phil. 289 (2010) and People vs. Dahil
(750 Phil. 212 (2015) enumerated the links that the prosecution must establish in
the chain of custody of a buy-bust situation to be as follows:

First, the seizure and marking, if practicable, of the illegal drug recovered
from the accused by the apprehending officer;

Second, the turnover of the illegal drug seized by the apprehending officer to
the investigating officer;

Third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and

Fourth, the turnover and submission of the marked illegal drug seized by the
forensic chemist to the court.

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If there is non-compliance with the chain of custody, a serious uncertainty hangs
over the identification of the corpus delicti that the prosecution introduced into
evidence in order to convict the accused. In effect, the prosecution has no evidence
against the accused given that the circumstances surrounding the handling of the
seized items cast doubt on their source, identity, and integrity. (People vs. Del
Rosario, G.R. No. 235658, June 22, 2020)

CRIMES AGAINST DECENCY AND GOOD CUSTOMS

Grave Scandal

The law defines as a “grave scandal” any scandalous conduct which is offensive
against decency and good customs.

Being “scandalous,” the conduct must be actually or at least potentially offensive to

the public who may come to witness the conduct. It excludes acts which are
committed by a person in private and not within the immediate view or access of the
public, even if those acts are scandalous in nature.

To be punishable as grave scandal, the following principles must be taken into

consideration:

1. The scandalous act is not limited to acts which are sexual in nature. It includes
all other acts which offend decency and good customs.

Illustration: Two parents are arguing in the parking lot of a public school.
Both of them shouted invectives against each other, within hearing distance of
classrooms occupied by elementary students.

2. The scandalous act must be committed in a public place or in a place

accessible by the public, or within public view.

The nature of a grave scandal is that the act should offend the public, such
that it is necessary that the act must be accessible to the public.

Illustration 1: Two persons, while in a public park where other persons are
present, embraced each other until one of them climbed on top of the other.
Both moved their hips against each other in a gyrating manner.

The act is punishable as grave scandal for being offensive to decency

and for being done in the view of the public.

Illustration 2: Two persons, while behind a bush in a public park, embraced

each other until one of them climbed on top of the other. Both moved their
hips against each other in a gyrating manner.

42
 Illustration 3: Two persons performed sexual acts while inside a parked
vehicle in the parking lot of a mall.

Despite the act being done in apparent privacy, the act was still done in
a public place, which satisfies the requirement of publicity.

Illustration 4: Two persons, while inside an abandoned building, embraced

each other until one of them climbed on top of the other. Both moved their
hips against each other in a gyrating manner.

Despite the act also being done in apparent privacy, the act was still done in a
public place, which satisfies the requirement of publicity. There is no
prohibition for other persons to be able to get into the place and witnessing
the act.

Illustration 5: Two persons, while inside their bedroom had sexual

intercourse with each other. They left their window open such that persons
passing by can see the act.

Illustration 6: Two persons, during their honeymoon and while inside their
hotel bedroom had sexual intercourse with each other. Their voices and
actions can be clearly heard from the adjacent hotel rooms.

3. The scandalous act, although being offensive against decency and good
customs, must not be punishable under any other Article under the Revised
Penal Code.

For instance, if the act constitutes acts of lasciviousness, the act must be
charged and punished as acts of lasciviousness and not grave scandal. There
cannot be simultaneous prosecution of grave scandal and another felony.

As to special penal laws, there may be simultaneous prosecution for acts

punishable under that special penal law and the Revised Penal Code only if
the special penal law allows it.

4. The place of commission is immaterial if the public has ready access to the
place or if the act is done within public knowledge or public view.

The law punishes grave scandal because of the offense it causes to the public.
The defense that the act was committed in a private place is not tenable
where:

a. The act can be readily seen by any person passing by because of an

open door or an open window;

b. The act can be heard by persons occupying an adjacent room of a

hotel, boarding house, transient place and similar places of
accommodation;

43
 c. The performers of the act fail to maintain a degree of discretion to
prevent the public from coming to know of the scandalous act.

But if any other person must exert effort to gain access to view, hear or know
of the act, even if it be scandalous in nature, then the act is not punishable as
grave scandal because the requirement of public access is not satisfied.

Immoral Doctrines, Obscene Publications and Exhibitions, and Indecent Shows

While the Constitution guarantees one’s freedom of expression and the freedom of
the press and of publication, that freedom must not involve the creation of material
that is immoral or obscene.

Under our jurisprudence we adhere to the test of obscenity: first, if the material
tends to or actually corrupts the mind of persons open to immoral influence; second,
into whose hands such material may fall and third, whether or not such material or
act shocks the ordinary and common sense of persons as an indecency.

The Revised Penal Code prohibits the following:

1. The public expounding or proclamation of doctrines openly contrary to public

morals.

A “doctrine” refers to a belief or a set of beliefs taught and observed by a

religious sect, law, or other group or class of persons.

To be punishable, the doctrine must be made public and must be openly

contrary to public morals. The publication of the doctrine is satisfied when it
comes into the knowledge of a person other than the one who expounded or
proclaimed it. To be “openly contrary to public morals,” the doctrine must
clearly and unequivocally be against what the public perceives to be moral.

Illustration 1: In a speech during a religious rally, a minister proclaims that

polygamy must be respected by the government since it was a practice by
well-known personalities in the Old Testament of the Bible.

Polygamy is still publicly denounced as immoral.

Illustration 2: A social group distributed leaflets inviting married persons to

participate in a “swinging” activity, which is the sharing of spouses in sexual
activities.

2. Creation of obscene literature, under the following conditions:

a. The literature is published by the author, or by another with his

knowledge; and

44
 b. The author, publisher/editor and the owner/operator of the establishment
selling the obscene publication.

3. Exhibition of indecent or immoral plays, scenes, acts of shows which include:

a. Those that glorify criminals or condone crimes;

b. Creation of obscene literature, under the following conditions:

i. The literature is published by the author, or by another with his
knowledge; and
ii. The author, publisher/editor and the owner/operator of the
establishment selling the obscene publication.

c. Those that offend any race or religion;

d. Those that tend to abet traffic in and use of prohibited drugs; and

e. Those that are contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts.

4. Selling, giving away (distributing) or exhibition of films, prints, engravings,

sculptures or literature which are offensive to morals.

PRESIDENTIAL DECREE NO. 602, ANTI-GAMBLING ACT

AS AMENDED BY REPUBLIC ACT NO. 9287

Definition of Terms

1. Illegal Numbers Game. - Any form illegal gambling activity which uses
numbers or combinations thereof as factors in giving out jackpots.

2. Jueteng. - An illegal numbers game that involves the combination of thirty-

seven (37) numbers against thirty-seven (37) numbers from number one (1)
to thirty seven (37) or the combination of thirty-eight (38) numbers in some
areas, serving as a form of local lottery where bets are placed and accepted
per combination, and its variants.

3. Masiao. - An illegal numbers game where the winning combination is derived

from the results of the last game of Jai Alai or the Special Llave portion or any
result thereof based on any fictitious Jai Alai game consisting of ten (10)
players pitted against one another, and its variants.

4. Last Two. - An illegal numbers game where the winning combination is

derived from the last two (2) numbers of the first prize of the winning
Sweepstakes ticket which comes out during the weekly draw of the Philippine
Charity Sweepstakes Office (PCSO), and its variants.

45
 5. Bettor ("Mananaya", "Tayador" or variants thereof). - Any person who places
bets for himself/herself or in behalf of another person, or any person, other
than the personnel or staff of any illegal numbers game operation.

6. Personnel or Staff of Illegal Numbers Game Operation. - Any person, who acts
in the interest of the maintainer, manager or operator, such as, but not limited
to, an accountant, cashier, checker, guard, runner, table manager, usher,
watcher, or any other personnel performing such similar functions in a
building structure, vessel, vehicle, or any other place where an illegal
numbers game is operated or conducted.

7. Collector or Agent ("Cabo", "Cobrador", "Coriador" or variants thereof). - Any

person who collects, solicits or produces bets in behalf of his/her principal for
any illegal numbers game who is usually in possession of gambling
paraphernalia.

8. Coordinator, Controller or Supervisor ("Encargado" or variants thereof). - Any

person who exercises control and supervision over the collector or agent.

9. Maintainer, Manager or Operator. - Any person who maintains, manages or

operates any illegal number game in a specific area from whom the
coordinator, controller or supervisor, and collector or agent take orders.

10.Financiers or Capitalist. - Any person who finances the operations of any

illegal numbers game.

11.Protector or Coddler. - Any person who lends or provides protection, or

receives benefits in any manner in the operation of any illegal numbers game.

Prohibited Acts

1. Participation in any illegal numbers game as:

a. Bettor;
b. Personnel or staff of an illegal numbers game;
c. By allowing his vehicle, house, building or land to be used in the
operation of the illegal numbers games;
d. Collector or agent;
e. Coordinator, controller or supervisor;
f. Maintainer, manager or operator;
g. Financier or capitalist; or
h. Protector or coddler.

2. Possession of gambling paraphernalia or materials.

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CRIMES COMMITTED BY PUBLIC OFFICERS

A “public officer” is any person who, by direct provision of the law, popular election
or appointment by competent authority, shall take part in the performance of public
functions in the Government of the Philippine Islands, of shall perform in said
Government or in any of its branches public duties as an employee, agent or
subordinate official, of any rank or class.

These include public officers who are elected or appointed by competent authority.

Any other officer or employee is a private person and as such, not covered by the
provisions of law referring to public officers or employees.

Section 1, Article XI of the 1987 Constitution provides:

“Section 1. Public office is a public trust. Public officers and employees must, at all
times, be accountable to the people, serve them with utmost responsibility, integrity,
loyalty, and efficiency; act with patriotism and justice, and lead modest lives.”

In Belgica vs. Ochoa (721 Phil. 416, 556 (2013), citing Bernas, Joaquin G., S.J., The 1987
Constitution of the Republic of the Philippines: A Commentary, 2003 Ed., p. 1108.), as
cited in Office of the Ombudsman vs. Mayor Julius Cesar Vergara (GR No. 216871,
December 6, 2017.) it was explained that:

The aphorism forged under Section 1, A1iicle XI of the 1987 Constitution,

which states that "public office is a public trust," is an overarching reminder
that every instrumentality of government should exercise their official
functions only in accordance with the principles of the Constitution which
embodies the parameters of the people's trust. The notion of a public trust
connotes accountability x x x.

Malfeasance, Misfeasance and Nonfeasance

“Malfeasance” is the performance of an act which ought not to be done. It does not
matter if the act is lawful or unlawful by criminal standards; a public officer is not
allowed to perform an act which their office or function does not allow.

“Misfeasance” is the performance of an act required by law in a manner not

prescribed by law. It connotes that a public officer must perform their lawfully-
mandated duty in the proper manner and procedure.

47
“Nonfeasance” is the non-performance of an act where its performance is required
by law or by the nature of the duty of the public officer.

Specific Crimes Committed by Public Officers

1. Dereliction of Duty – the crime of dereliction of duty may be committed in the

following ways:

a. Committed by a Judge:

i. Knowingly rendering an unjust judgment;

Judgments issued may contain errors of law or fact owing to the

appreciation or misappreciation of facts, leading to a
misapplication of law. These errors may not necessarily be
malicious in character which is why statutes allow the remedy of
moving for reconsideration, new trial or instituting an appeal.

To be criminal, the judge must intentionally render an unjust

judgment – that is, one that is not consistent with the evidence
proven in trial and the law on which it is based, while knowing
fully-well that the judgment is unjust. Otherwise stated, there
must be malice in the rendition of the unjust judgment.

This shows that malice must be proven as a fact by proof beyond

reasonable doubt, failing which will cause the judge to be liable
for rendering a judgment through negligence or for gross
ignorance of the law, which is administrative in nature.

ii. Rendering judgment through negligence;

Compared to knowingly rendering an unjust judgment, this

crime involves the issuance of an unjust judgment through
negligence instead of intent. The judgment must be manifestly
unjust (clearly contrary to the evidence proven and the law) and
that its rendition was caused by inexcusable negligence or
ignorance of the law.

iii. Issuing an unjust interlocutory order;

An interlocutory order is an order issued by a judge in relation to

a case pending before it that settles any matter brought to the

48
 court’s attention but without disposing of the case. Examples of
interlocutory orders are:

a. An order denying a motion for postponement;

b. An order granting a motion for the admission of
previously-excluded evidence;
c. An order denying a Demurrer to Evidence;
d. An order amending a Pre-Trial Order.

To be liable for this crime it must be proven that the order was
unjustly issued. It may come by way of grave abuse of discretion.

iv. Maliciously delaying the administration of justice;

While delays in court proceedings are unavoidable, with

excusable delays allowed by the Rules this crime involves a
malicious delay in the conduct of proceedings for the disposal of
a case.

The malice here involves intent to cause damage, prejudice or

disadvantage against a party-litigant before the court presided
upon by the accused judge, or that party-litigant’s counsel, or
against all litigants and counsels participating in all cases
pending before that court.

b. Committed by Prosecutors or Law Enforcement Officers:

i. Negligence in the prosecution of offenses;

Under Rule 110 of the Revised Rules of Criminal Procedure,

instituting prosecution of offenses involves either first, the filing
of a complaint before the Office of the Prosecutor or the
Municipal Trial Court for the purpose of preliminary
investigation or examination (where preliminary investigation is
not required), as the case may be; or second, the filing by the
prosecutor of a criminal Information before the court for the
purpose of formally instituting judicial criminal proceedings.

While the law uses the term, “negligence,” the negligence

contemplated in this crime involves maliciously refraining from
instituting prosecution, which implies intent to cause damage,
prejudice or disadvantage. It involves a betrayal of the duty to
institute prosecution in behalf of the State.

ii. Tolerance in the prosecution of offenses;

“Tolerance” refers to a refusal or failure to initiate prosecution

for the commission of a crime in the nature of refusing to

49
 acknowledge that an act committed is unlawful. This
acknowledgment leads to a refusal or failure to file the criminal
complaint before the proper office when doing so is a matter of
duty on the part of the public officer.

iii. Betrayal of trust by an attorney or solicitor

An “attorney” as used in the law refers to a practitioner of law

who is granted authority to practice by the Supreme Court of the
Philippines after being qualified to do so.

A “solicitor” as used in the law refers to a “procurador judicial,”

which refers to a “judicial attorney,” or an attorney who provides
legal services by judicial duty. They include public attorneys and
attorneys appointed as counsel de oficio.

While an attorney in not a public officer per se, (unlike a public

attorney who is appointed by competent authority) the nature of
the practice of law makes them officers of the court such that
their duties and responsibilities include accountability to the
public since the practice of law may also involve public interest.

The betrayal of trust involves:

a. Revelation of secrets, which is any malicious breach of

professional duty or of inexcusable negligence or ignorance,
shall prejudice his client, or reveal any of the secrets of the
latter learned by him in his professional capacity; or

b. Representation of a conflicting interest, where the attorney or

solicitor who, having undertaken the defense of a client or
having received confidential information from said client in a
case, shall undertake the defense of the opposing party in the
same case, without the consent of his first client.

Illustration 1: Atty. Betty was engaged as defense counsel by

Gardo in a criminal case for rape where he is the accused. Two
months later Atty. Betty was appointed prosecutor and
assigned to represent the State in a rape case Gardo is the
accused. Atty. Betty must inhibit herself from prosecuting the
case against Gardo because doing so will be a representation of
a conflicting interest. (The term “defense” as used in the law
may include the defense of the interest of the State as the
public offended party)

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 Illustration 2: Atty. Betty prepared a demand letter against
Gardo in behalf of Rosa for the provision of financial support
when Gardo, Rosa’s husband abandoned her and her children.
A month later, Atty. Betty joined ACX Law Firm. When a case for
support was initiated against Gardo, ACX Law Firm was
engaged to represent Gardo, and Atty. Betty was assigned by
the Senior Partners to handle the case. Atty. Betty must refrain
from actively participating in the case because doing so is a
betrayal of the trust reposed in her by Rosa.

The criminal liability of the attorney or solicitor in this case is

without prejudice to possible administrative liability for
violation of the Code of Professional Responsibility.

2. Bribery – The crime of bribery is attributable to the public officer or

employee, not the person who gives a thing to them. It may be committed
directly or indirectly, discussed as follows:

Direct Bribery - The crime is consummated by a public officer or

employee agreeing to perform an act or to refrain from doing so in
exchange for any offer, promise, gift, or present. For this purpose the
following principles must be understood:

i. The actual giving of the gift or present is immaterial for criminal

liability to be present;

ii. The public officer may directly receive the thing in exchange for
the act by themselves or through another;

iii. The commission of the act or the executing of an omission by the

public officer must be by reason of an offer, promise, gift or
present;

iv. The acts or omissions contemplated in exchange for the offer,

promise, gift or present must be in relation to the official duties
of the public officer;

v. The crime of direct bribery is consummated:

a. By agreeing to perform an act constituting a crime, in

connection with the public officer’s duties, in consideration
of any offer, promise, gift or present;

Illustration 1: Councilor Benito agreed to issue a

certificate of accreditation to Jose, a disqualified
construction contractor in exchange for a golf set which
Jose promised to give.

The issuance of a false certificate is a crime of falsification

of public documents. Even if the golf set was not received

51
 yet, the mere agreement to issue the false certificate in
exchange of the golf set consummates the crime.

Illustration 2: On Jose’s promise to give him a brand-new

golf set, Councilor Benito agreed sign as witness a falsified
deed of sale concerning a parcel of land owned by Jacinto.

Councilor Benito’s act of being complicit to Jose’s act of

falsification is a crime, but which is not in relation to his
official duty as a public officer. While he may be liable for
falsification as a co-conspirator, he is not liable for direct
bribery.

b. By actually performing an act constituting a crime, in

connection with the public officer’s duties, in consideration
of any offer, promise, gift or present;

Illustration: Councilor Benito issued a certificate of

accreditation to Jose, a disqualified construction
contractor in exchange for a golf set which Jose promised
to give.

c. By agreeing to perform an act not constituting a crime, in

connection with the public officer’s duties, in consideration
of any offer, promise, gift or present;

Illustration: Councilor Benito agreed not to issue a

certificate of accreditation to Jacinto, a disqualified
construction contractor in exchange for a golf set which
Jose, a qualified contractor promised to give.

d. By actually performing an act not constituting a crime, in

connection with the public officer’s duties, in consideration
of any offer, promise, gift or present;

Illustration: Councilor Benito issued a certificate of

accreditation to Jacinto, a qualified construction
contractor in exchange for a golf set which Jacinto
promised to give.

e. By agreeing to refrain from performing an act which was

his duty to perform, in consideration of any offer, promise,
gift or present;

Illustration: Councilor Benito agreed to refrain from

issuing a certificate of accreditation to Jacinto, a qualified

52
 construction contractor in exchange for a golf set which
Jose promised to give.

There is no criminal liability for direct bribery if the public

officer agrees to refrain from performing an act which
constitutes a crime because it is the duty of a public officer
not to perform acts constituting crimes. But by actually
accepting a gift or present in consideration of refraining
from performing the illegal act or in relation to the public
position, the public officer may be liable for indirect
bribery.

The crime of direct bribery is qualified when a law enforcement officer refrains from
arresting or prosecuting an offender who has committed a crime punishable by
reclusion perpetua and/or death in consideration of any offer, promise, gift or
present.

Indirect Bribery – This is committed by any public officer who shall

accept gifts offered to him by reason of his office.

The following principles apply:

1. There is no need for a condition for the gift;

2. The crime is consummated upon acceptance of a gift by himself or

by another person in his behalf;

3. The giving of the gift must be by reason of the public position;

This excludes gifts which are given by persons in consideration of

actual friendship or by relatives in consideration of celebrations.

4. Indirect bribery is punished by way of prevention to avoid the

impression that the gift is given in consideration of future favors.

5. Any person who offers or actually gives a promise, gift or present

causing the public officer to liable for direct or indirect bribery shall
be liable for corruption of public officials under Article 212.

Malversation of Public Funds and Property

As a consequence of public office, public officers may be assigned duties in relation

to holding, disbursing or otherwise managing public funds and property. Being
public in nature, there exists a greater degree of accountability owing to the fact that
their pubic office brings with it public trust. A failure to properly manage public
funds or public property is punished as malversation.

Article 217 states:

53
 “Any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same or shall take or
misappropriate or shall consent, through abandonment or negligence, shall
permit any other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property.”

Malversation may involve:

1. Public funds; the entirety of the fund or any portion thereof; or

2. Public property in the custody of the public officer in its entirety, or a portion
thereof.

The Duty to Account

To be guilty of malversation the public officer must be an accountable officer – that

is, an officer who holds or manages the funds or property in trust for the
government and with the obligation to account for the said funds or property as a
matter of duty or upon demand by a duly-authorized public officer.

Malversation is committed in the following ways:

1. By appropriating public funds or property for purposes other than for what the
fund or property is intended;

Illustration 1: Police Sgt Jose was tasked to purchase a full tank of gasoline
for a patrol vehicle of the Baguio City Police Office. Instead of purchasing an
amount of gasoline sufficient to fill the vehicle’s tank, he purchased only a
quantity sufficient to fill 90% of the tank, and reserved the 10% of the fuel for
his personal motorcycle.

Malversation was committed when PSGT Jose appropriated a portion of the

fund entrusted to him for his personal purpose. Although a police officer, he is
accountable to the public fund to be used by him for the supposed intended
purpose.

Illustration 2: Atty. Jose, a resident of Malolos, Bulacan is the regional

director of a government agency stationed in Baguio. He uses his officially-
assigned vehicle to travel weekly from his Bulacan residence to Baguio City.

There is no malversation because the assignment of a government vehicle to a

ranking public officer includes being allowed to use the same for personal
transport to and from their place of residence, especially so that he is
assigned in a place other than his place of residence.

But if Atty. Jose uses the same vehicle to transport himself to Manila for a
personal purpose, or for any purpose other than the purposes specified in the
Memorandum of Receipt (the document to be signed by Atty. Jose which

54
 contains the terms and conditions of use of the public vehicle) malversation is
committed because the vehicle should not be used for personal purposes.

2. By taking the fund or public property without proper authority;

Illustration: Jose, an office clerk assigned at the Office of the City Treasurer
took home a stapler from his desk for him to use in arranging his personal
documents. Malversation is committed because he took public property
without proper authority.

3. Misappropriating the public fund or public property;

Illustration: Jose has the duty of procuring office supplies every January of
each year. But in January 2020, there was a sale on office supplies so he was
able to save an amount from the public fund in his possession. But instead of
remitting the amount, he used it to purchase an extra ream of bond paper for
his personal use.

Malversation is present because Jose used a portion of the public fund for a
purpose other than what it was intended for. The extra amount should have
been returned to the public treasury but instead he used it for a personal
purpose.

4. Allowing an unauthorized person to take the public fund or property by any of

the following means:

a. By consenting to the taking of public funds or property;

Illustration: Atty. Jose allowed his son, Joselito to use his officially-
assigned government vehicle for practical driving in his application for
issuance of a driver’s license.

b. By abandoning the public fund or property;

Illustration: Atty. Jose, an NBI Assistant Director disposed damaged

office equipment for pickup by garbage collectors, without proper
authority. There is malversation because the procurement or disposal
of public property (working or otherwise) should be by public bidding
as a matter of procedure. Atty. Jose did not have the authority to
dispose of the damaged equipment.

c. By allowing the taking of the public fund or property by negligence.

Illustration: Mayor Jose, an actor-turned politician allowed the

disbursement of city funds to a supplier of construction materials
without complying with the proper process of procurement under law.
On being prosecuted for malversation through negligence, Mayor Jose

55
 claimed that he was not aware of the process of procurement. By his
own admission, Mayor Jose allowed an unauthorized person to take
public funds through negligence.

A prima facie presumption that public funds or public property was put to personal
use arises when the public officer failed, refuses or is otherwise unable to produce
the public fund or public property upon demand by an authorized officer.

In criminal prosecutions, the burden of proof to establish guilt beyond reasonable

doubt is transferred from the prosecution to the defense, in the sense that the
accused must present sufficient evidence to overturn the presumption of
malversation instead of the prosecution having to present proof beyond reasonable
doubt to prove guilt. Otherwise stated, the prosecution need only prove that the
public officer was unable to produce the public fund or property upon demand by
the authorized officer. Evidence to prove the actual misuse of the fund or property is
no longer required.

The reason for the presumption is that being an accountable officer and with the
fund or property not being their own, the public officer concerned has no reason to
be unable to produce the fund or the property upon demand since the proper
performance of the public duty involves being trustworthy to the point that the
public fund or property will not be used by the officer for any purpose other than
that for which they were intended.

Illustration: In the preparation of the 2023 budget, City Councilor Jose

requested Php3,500,000.00 for the upgrading of his deteriorated and
outdated office facilities. The upgrade work was never carried out.

The Commission on Audit issued a demand for Councilor Jose to produce the
funds within 30 days, which he was not able to comply.

On being prosecuted for malversation of public funds, Councilor Jose still

enjoys the presumption of innocence because it is a Constitutionally-
guaranteed right; however, if he cannot prove that the fund was used for the
intended purpose, or if he cannot make the amount forthcoming, he will be
convicted for malversation.

Other forms of malversation are:

1. Failure to render an accounting for the use of public funds or property to the
Commission on Audit or the city or provincial auditor as the case may be
under the following situations:

a. During the term of service, as a matter of duty;

b. Upon separation from the public service by resignation, retirement or
dismissal;
c. Unlawfully departs from the Philippines for abroad;
d. Departs from the Philippines for abroad without securing a certificate
of clearance from the Commission on Audit;

56
 2. Failure to make payment from government funds in their possession, to a
payee who has a lawful right to payment;

3. Failure to deliver government property in their custody or administration

upon demand by competent authority.

Technical Malversation

Illegal use of public funds under Article 220 is also known as “technical
malversation.” It is committed by any accountable public officer who shall apply any
public fund or property under their administration to any public use other than for
which such fund or property were appropriated by law or ordinance. Criminal intent
is not an element of the crime. Thus, good faith is not a valid defense.

While it is not malversation per se, since the public fund or property was still
devoted to public use, the appropriation of public funds and the procurement of
public property is made for a purpose which is specified in the law or ordinance
authorizing its procurement or allocation. The use of the public fund or property for
another public purpose other than that for which it was intended is, aside from
being a violation of the Revised Penal Code, also a violation of the law or ordinance
from which the allocation or procurement of property is based.

An apparent rationale for the prohibition against technical malversation is to avoid

the use of public funds or property for preferential purposes by its administrator to
the damage, disadvantage or prejudice of other public projects the funds or property
were intended, and to minimize the inconvenience of having to realign or reallocate
funds which were already supposed to be fixed when the city, municipal, provincial
or national budgets were approved by law or ordinance.

Illustration: Mayor Jose approved the release of four sacks of rice and two
boxes of sardines for distribution to indigent calamity victims. The release of
the food items was not by ordinance enacted by the Sanggunian and was done
by him out of compassion.

Mayor Jose is guilty of technical malversation because the appropriation of

public fund or property must be by an act of the Sanggunian through an
ordinance enacted for the purpose. His apparent good faith and lack of
criminal intent was ruled by the Supreme Court as without any bearing.
(Arnold James M. Ysidoro vs. People of the Philippines, GR No. 192330,
November 14, 2012).

Liability of Private Individuals

The following private individuals may be held liable for malversation:

1. Those who acted in conspiracy with public officers;

2. Those who benefited from the consent, abandonment or negligence of the
public officer which resulted to them taking public funds or property; and

57
 3. Those who are depositaries, custodians or holders of public funds or property,
in any capacity, when applicable.

Infidelity of Public Officers

Public officers who are charged with the duty of maintain, keeping or holding in
their custody persons, documents or information are to be held liable for the failure
to observe the degree of fidelity to their duty.

A public officer thus must maintain fidelity in their duty to maintain prisoners in
their custody. Infidelity in the custody of prisoners may be committed:

1. By conniving with or giving consent for a convicted prisoner to evade the

service of their sentence by final judgment;

Illustration: Jail Officer Jose, in exchange for Php20,000.00 requested by him,

allowed convicted prisoner Eun Sang Woon to leave his detention cell and
return to Korea.

JO Jose is liable for infidelity in the custody of prisoners, as well as direct

bribery.

Eun Sang Woon is liable for evasion of service of sentence and corruption of a
public official.

2. By conniving with or giving consent for a detention prisoner to remain in

custody as ordered by competent authority.

Illustration: Jail Officer Jose, in exchange for Php20,000.00 requested by him,

allowed Eun Sang Woon to leave his detention cell and return to Korea while
his criminal case for drug trafficking was pending in court. JO Jose is liable for
infidelity in the custody of prisoners, as well as direct bribery.

Eun Sang Woon is liable for corruption of a public official.

3. Allowing an evasion of service of sentence by a convicted prisoner by

negligence;

Illustration: Jail Officer Jose reported for duty under the influence of alcohol,
having just come from a drinking session with his high school friends.
Because of his impaired senses, he forgot to lock the main door leading to the
detention cell of Jacinto, a convicted prisoner, and which was the reason why
he was able to escape detention. JO Jose is criminally liable for infidelity in the
custody of prisoners. He will also be administratively liable for reporting for
duty while under the influence of alcohol.

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 4. In case of a private individual, by committing any of the foregoing acts when the
conveyance or custody of a prisoner or arrested person shall have been assigned
to them by competent authority.

Illustration 1: Jose is the driver of an ambulance which was called to

transport Jacinto, an arrested person to the hospital when the latter sustained
injuries after having resisted a lawful arrest. On the way to the hospital
Jacinto requested to be allowed to use the restroom in a nearby Jollibee
restaurant, which Jose allowed. But instead of using the restroom Jacinto
escaped. Jose is charged with the conveyance of Jacinto. Despite being a
private individual, Jacinto is still under custody of the law.

Illustration 2: Jose, a convicted prisoner under trial for committing another

crime while under detention was brought by Jail Officer Jacinto to court for
his trial. While waiting for the police patrol vehicle to pick them up from the
courthouse, JO Jacinto asked Security Guard Javier to watch over Jose while JO
Jacinto made a telephone call to his station to follow up on the transport.
While JO Jacinto was on the phone, Jose asked SG Javier to allow him to wash
his hands to avoid COVID-19 transmission and when SG Javier loosened his
grip, Jose ran away and escaped.

As to the duty to maintain the integrity of documents in their possession, infidelity

in the custody of documents may be committed:

1. By removing, concealing or destroying documents or papers officially entrusted

to them;

Illustration 1: Jose was entrusted to return the case records of Jacinto to the
court’s filing cabinet for pending cases. But instead of returning the record,
Jose kept it in a filing cabinet which contained records of cases which were
already resolved. Jose is guilty of infidelity in the custody of documents by
concealment.

Illustration 2: Jose was entrusted to return the case records of Jacinto to the
court’s filing cabinet for pending cases. But instead of returning the record,
Jose ran it through a paper shredder. Jose is guilty of infidelity in the custody
of documents by destruction.

Illustration 3: Jose was the record custodian of the court. He took the case
records of Jacinto from the court’s filing cabinet for pending cases for him to
use as material for a law school subject. Jose is guilty of infidelity in the
custody of documents by removal.

2. By breaking the seal or permitting the breaking of the seal of documents or

property in their custody sealed by proper authority;

Illustration: Jose, an office clerk of the Municipal Assessor’s Office received a

sealed envelope containing a letter addressed to Jacinto, the Municipal
59
 Assessor from Javier, the Municipal Mayor. He proceeded to open the envelope
but did not read the contents. Jose is liable for infidelity in the custody of
documents by breaking the seal of a document placed by proper authority. If
he allowed another person to break the seal, he is still liable for infidelity in
the custody of documents, but by permitting the breaking of the seal.

3. Opening of closed documents or property without proper authority, if the same

is not sealed.

Illustration: While on his way to deliver a closed box to the office of Senator
Jacinto, Jose, a member of the staff of Senator Javier took a peek into the box,
which contained a brand-new barong. Jose is liable for infidelity in the
custody of property.

As to the duty to maintain confidential any secret or information which was revealed
to them by reason of their office, Revelation of secrets may be committed:

1. By revealing any secret known to them by reason of their official capacity;

2. By wrongfully delivering papers or copies of papers of which they may have

charge and which should not be published;

3. Revelation of secrets of any private individual which shall become known to

them by reason of their public office.

Other Offenses and Irregularities committed by Public Officers

Articles 231 to 245, Revised Penal Code

1. Open Disobedience – Refusal by an officer of the Judicial or Executive branch of

government to obey a lawful order issued by competent superior authority.

Illustration 1: The Supreme Court ordered Judge Jose to conduct a new trial
with regard to a civil case decided by him, on account of irregularities that
took place during the initial trial. Judge Jose ignored the order of the Supreme
Court.

Illustration 2: The Secretary of the Interior and Local Government ordered

Atty. Jose, the Regional Director of the DILG stationed in Baguio City to
investigate an allegation of corruption against one of the Assistant Directors
in the Baguio City regional office. Instead of complying with the order, Atty.
Jose sent a letter to the Secretary stating that there is no corruption in the
Regional Office.

2. Disobedience to order of superior officers, when said order was suspended by

inferior officer – Refusal by any public officer to obey a lawful order issued by
competent superior authority after having initially suspended compliance

60
 with the said order where the suspension by the inferior officer was
disapproved;

Illustration: The Secretary of the Interior and Local Government ordered

Mayor Jose of Baguio City to immediately investigate an allegation of
corruption against one of the Department Heads of the Baguio City
government. Instead of complying with the order, Mayor Jose sent a letter to
the Secretary asking that the order of investigation be suspended until after
the election period. When the Secretary did not act on his request, Mayor Jose
assumed that the Secretary agreed with him so he did not conduct the
investigation as ordered.

The inaction by the Secretary cannot be considered an implied approval of

Mayor Jose’s request for suspension. Mayor Jose may be held criminally-liable,
in addition to possible administrative sanctions.

3. Refusal of Assistance – Committed by any public officer who, upon demand

from competent authority, shall fail to lend his cooperation towards the
administration of justice or other public service.

Illustration: Police Sergeant Jose was ordered by Police Lieutenant Jacinto to

conduct a patrol in Loakan Proper, Baguio City concerning an area where a
circumferential road was being constructed, on the ground of complaints from
residents which PLT Jacinto received where it was claimed that several
persons were visiting the area while leaving their trash in violation of local
ordinances on sanitation. PSGT Jose went home instead of conducting the
patrol.

Note that the refusal to perform the duty is punished as “refusal of assistance”
when the duty to perform was ordered by competent authority.

If the refusal to provide assistance was in violation of a duty to institute

prosecution for the punishment of a crime when it comes as a matter of duty
with or without a request for assistance, the officer will be liable for
Dereliction of Duty under Article 208.

Liability for violation of Article 208 and Article 233 may both set in against
the offending officer. Article 208 punishes a refusal to perform a duty with or
without an order from competent authority or a request for assistance from a
civilian. On the other hand, Article 233 punishes the disobedience to an order
to provide assistance from a competent superior authority.

4. Refusal to Discharge Elective Office – Committed by any person who, having

been elected by popular election to a public office, shall refuse without legal
motive to be sworn in or to discharge the duties of said office.

Illustration 1: Jose was elected Mayor of Baguio City. But because he realized
that he could not possibly perform the duties that will be required of him, he

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 refused to take his oath so that he may start discharging the functions of his
office.

Illustration 2: Jose was elected Mayor of Baguio City. But because he realized
that he was no longer a Filipino citizen because his petition for to be
naturalized as a citizen of New Zealand was already, he refused to take his
oath so that he may start discharging the functions of his office.
Jose will not be criminally-liable because he has a lawful motive to refuse to
discharge his office – he no longer being a Filipino citizen, which is a
disqualification.

5. Maltreatment of Prisoners – Committed by any public officer or employee any

public officer or employee (most likely a corrections or jail officer) who shall
overdo himself in the correction or handling of a prisoner or detention
prisoner under his charge, by the imposition of punishment not authorized by
the regulations, or by inflicting such punishment in a cruel and humiliating
manner.

The maltreatment by the officer to extort a confession, or to obtain some

information from the prisoner is an aggravating circumstance where the
penalty imposable will be in its maximum, in addition to the accessory
penalty of temporary special disqualification with payment of a fine, all in
addition to the penalty imposable for the physical injuries inflicted upon the
prisoner.

Illustration 1: Detention prisoner Jose refused to clean the toilet of the jail
where he is detained on the ground that he is not a convicted prisoner.
Irritated by Jose’s refusal, Jail Officer Jacinto mauled Jose in a secluded area,
resulting physical injuries.

Illustration 2: Detention prisoner Jose refused to clean the toilet of the jail
where he is detained on the ground that he is not a convicted prisoner.
Irritated by Jose’s refusal, Jail Officer Jacinto refused to provide food for Jose
until he cleans the toilet.

Illustration 3: Detention prisoner Jose refused to clean the toilet of the jail
where he is detained on the ground that he is not a convicted prisoner.
Irritated by Jose’s refusal, Warden Jacinto detained Jose in solitary
confinement (“bartolina”).

Illustration 4: Detention prisoner Jose refused to clean the toilet of the jail
where he is detained on the ground that he is not a convicted prisoner.
Irritated by Jose’s refusal, Warden Jacinto caused Jose to stand naked in the
middle of the jail until he agrees to clean the toilet.

6. Anticipation of Duties of a Public Office – Committed by any person who shall

assume the performance of the duties and powers of any public officer or
employment after being elected or appointed to a public position, without

62
 first being sworn in or having given the bond required by law, if a bond is
required.

A public officer who is elected to appointed to a public position must take an

oath of office before being allowed to discharge the functions of that office. In
case the officer is an accountable officer (a Municipal Treasurer, perhaps), the
officer must also give a bond in an amount specified by law, which is intended
to secure the officer’s performance of duty and prevent malversation
especially that being an accountable officer, they are in possession and control
of public funds and property.
The crime is committed when a public officer starts to perform the duties of
the public office without first complying with either or both of the conditions
precedent.

7. Prolonging performance of duties and powers – Committed by any public

officer who shall continue to exercise the duties and powers of his office,
employment or commission, beyond the period provided by law, regulation or
special provisions applicable to the case.

8. Abandonment of office or position – Committed by any public officer who,

before the acceptance of his resignation, shall abandon his office to the
detriment of the public service.

9. Usurpation of Powers.

Legislative Power is the power to enact laws, ordinances and other rules and
regulations with the force and effect of law. It includes quasi-legislative power,
which is the authority of non-legislative officers to promulgate rules and
regulations which have the force and effect of law. It is vested by the 1987
Philippine Constitution upon Congress and the People by initiative and
referendum. Section 1 of Article VI states:

“The legislative power shall be vested in the Congress of the Philippines

which shall consist of a Senate and a House of Representatives, except
to the extent reserved to the people by the provision on initiative and
referendum.”

The Constitution and statute also grants the Executive Branch of government
the power to enact rules and regulations to implement statutes enacted by
Congress, referred to as the “Rule Making Power” of the Executive, pursuant
to the Doctrine of Subordinate Legislation (which allows the Executive to
promulgate rules and regulations to implement laws enacted by Congress, but
with the limitation that these rules and regulations should not amend, modify
or otherwise run contrary to the law enacted by Congress, and that these
rules and regulations will always be inferior to the law itself on which they
are based).

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But to be effective, the statute enacted by Congress must grant specified
agencies of the Executive the duty of promulgating the said Implementing
Rules and Regulations.

Republic Act No. 7160, the Local Government Code of 1991 granted local
legislative powers for the enactment of local ordinances, approval of
resolutions and appropriation of funds for the general welfare of the local
government unit, which is composed of the Province, City, Municipality and
Barangay. This local legislative power is devolved or delegated by Congress to
the Sangguniang Panlalawigan (Provincial Council), Sangguniang Pambayan
(Municipal Council), Sangguniang Panlungsod (City Council) and the
Sangguniang Pambarangay (Barangay or Village Council) by way of
decentralization of powers, which is, the delegation of powers from the
central authority to its branches or subordinates to aid in the more efficient
exercise of the said power.

Executive Power, which is the power to execute the laws, ordinances and other
rules and regulations promulgated in the valid exercise of legislative power.
Section 1 of Article VII of the 1987 Philippine Constitution states that “the
executive power shall be vested in the President of the Philippines.”

By way of decentralization of powers provided also by Republic Act No. 7160,

the Local Government Code of 1991, executive power is delegated from the
President to the Executive Departments (the “Cabinet”), and further down to
the executive agencies and offices of the Executive Department in various
regions throughout the country, and also to local chief executives of the
various local government units.

Judicial Power is the power to interpret and apply laws, ordinances and other
rules and regulations for the determination of facts. Under Section 1 of Article
VIII of the 1987 Philippine Constitution:

“The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.”

The usurpation of powers by each branch of government, aside from being

violative of the Revised Penal Code, also violates the Constitutional principle
of Separation of Powers. While a branch of government may lawfully interfere
in the exercise of powers by another branch by the Principle of Checks and
Balances, usurpation of powers involves an unlawful interference to the
exercise of, or the exercise of powers not belonging to the offending branch.

Usurpation of Legislative Power is committed by any public officer who shall

encroach upon the powers of the legislative branch of the Government, either

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by making general rules or regulations beyond the scope of his authority, or
by attempting to repeal a law or suspending the execution thereof.

Illustration: Congress enacted a law regulating the use of public roads to allow
the construction of bicycle lanes and expanded walkways. The law did not
provide for the creation of a set of implementing rules and regulations.
Despite that, Secretary Jose of the DPWH prepared rules to implement that
new law enacted by Congress.

Note that Congress has the constitutional power to enact statutes and as such,
it is Congress that has authority to amend or repeal an existing statute, or to
suspend its execution. By way of an exception, the Judicial Branch of
government through the power of judicial review may nullify a law, ordinance
or rule or regulation promulgated in the exercise of legislative or quasi-
legislative power if the same is found to be unconstitutional.

Usurpation of Executive power is committed by any judge who shall assume

any power pertaining to the executive authorities, or shall obstruct the latter
in the lawful exercise of their powers.

Illustration 1: A complaint for demolition of an illegal structure built by Jose

was initiated before the City Government of Baguio to which Mayor Jacinto
ordered the issuance of a Demolition Order. To prevent the demolition, Jose
filed a petition for injunction for the court to stop the City Government from
carrying out Mayor Jacinto’s order of demolition. After trial, Judge Javier
dismissed Jose’s petition and ordered the demolition of his illegal structure.

Judge Javier should not have ordered the demolition of Jose’s structure even if
it is found to be illegal because the duty to carry out the demolition belongs to
Mayor Jacinto, who is an officer of the Executive Department.

Illustration 2: Mayor Jose of Baguio City issued an Executive Order enforcing

a lockdown over a barangay where Judge Jacinto resides because of the
sudden rise in COVID-19 cases in the area. Judge Jacinto prepared a letter
strongly urging Mayor Jose to retract the Executive Order on the ground that it
prejudices the freedom of movement of the barangay residents. Judge Jacinto
published the letter in his Facebook page and in the Baguio Midland Courier.

Judge Jacinto may be liable for usurpation of executive power by obstructing

the lawful exercise by Mayor Jose of his executive powers.

Usurpation of Judicial power is committed by any officer of the executive

branch of the Government who shall assume judicial powers or shall obstruct
the execution of any order or decision rendered by any judge within its
jurisdiction.

Illustration 1: Regional Director Jose of the Department of Transportation

received a complaint for revocation of the driver’s license of Jacinto, who
figured in a vehicular incident that caused damage to the property of Javier

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 and causing the latter serious physical injuries. In deciding the complaint,
Regional Director Jose found Jacinto guilty of violating the conditions of his
driver’s license and for reckless imprudence resulting in serious physical
injuries and damage to property. He revoked Jacinto’s driver’s license and
ordered him to compensate Javier for the loss of his vehicle and to pay him
the cost of medical treatment, damages and attorney’s fees.

The power to determine facts and circumstances and to interpret and apply
laws relating to it is judicial in nature and is reserved only to the courts.
Regional Director Jose is not a judge nor is he part of the Judiciary such that
his decision usurps judicial power.

Illustration 2: A complaint for unlawful detainer was filed by Jose against

Jacinto when the latter refused to vacate an apartment being rented by him
from Jose, when the term of the lease already expired. The judge decided the
case in Jose’s favor, ordering Jacinto to vacate the apartment and restore its
possession to Jose.

On the execution of the court decision Barangay Captain Javier intervened for
Jacinto, and asked Sheriff Joselito (the court staff tasked to implement the
decision of the court) to defer the eviction of Jacinto until after the COVID-19
pandemic is over.

Barangay Captain Javier is guilty of usurpation of judicial power. Only the

court that issued the decision has the power to suspend its enforcement and
implementation. More so, Barangay Captain Javier obstructed the execution of
the court’s decision.

10.Disobeying Request for Disqualification – This is committed by any public

officer, usually a judge who, before the question of jurisdiction is decided,
shall continue any proceeding after having been lawfully required to refrain
from so doing.

A public officer may be requested to disqualify (inhibit) themselves from

hearing or trying a case which is brought before them when there is a lawful
ground to do so.

Section 1 of Rule 137 of the Rules of Court is instrumental:

“Disqualification of judges. — No judge or judicial officer shall sit in any case

in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the
sixth degree of consanguinity or affinity, or to counsel within the fourth
degree, computed according to the rules of the civil law, or in which he has
been executor, administrator, guardian, trustee or counsel, or in which he has
been presided in any inferior court when his ruling or decision is the subject
of review, without the written consent of all parties in interest, signed by
them and entered upon the record.

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 A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in a case, for just or valid reasons other than those mentioned above.”

The following Rules from the Code of Judicial Conduct are also instrumental:

“Rule 3.12 – A judge should take no part in proceeding where the

judge’s impartiality might reasonably be questioned. These cases
include, among others, proceedings where;

d. The judge has personal knowledge of disputed evidentiary

facts concerning the proceeding;

e. The judge served as executor, administrator, guardian, trustee

or lawyer in the case or matters in controversy, or a former
associate of the judge served as counsel during their
association, or the judge or lawyer was a material witness
therein;

f. The judge’s ruling in a lower court is subject of review;

g. The judge is related by consanguinity or affinity to a party

litigant within the 6th degree or to counsel within the 4th
degree;

h. The judge knows that the judge’s spouse or child has a financial
interest, as heir, legatee, creditor, fiduciary, or otherwise, in the
subject matter in controversy or in a party to the proceeding,
or any other interest that could be substantially affected by the
outcome of the proceeding.

In every instance the judge shall indicate the legal reason for
inhibition.”

A Petition or Motion to disqualify a judge must be filed before rendition of

judgment. It cannot be raised first time on appeal because proceeding with
and participation in the trial of the case despite there being a known ground
for disqualification is treated as an “implied waiver” on the part of the party
who should have petitioned or moved for disqualification.

If a judge denies petition for disqualification, the ultimate test is the

determination of whether or not the complainant was deprived of a fair and
impartial trial. For this purpose, a new trial is also a possible remedy under
the rules of procedure.

The Rules also provide:

“Rule 3.13 – A judge disqualified by the terms of Rule 3.12 may, instead
of withdrawing from the proceeding, disclose on the record the basis of
disqualification. If, based on such disclosure, the parties and lawyers
independently of the judge’s participation, all agree in writing that the
reason for the inhibition is immaterial or insubstantial, the judge may

67
 then participate in the proceeding. The agreement, signed by all parties
and lawyers, shall be incorporated in the record of the proceeding.”

Illustration: Judge Jose is a member of the Tagaytay Highlands Country and

Golf Club, which was subject of a criminal case for violation of environmental
laws. The case was raffled to the court presided by Judge Jose, who refused to
inhibit himself from trying the case despite a motion for inhibition filed by the
complainants.

11.Orders or requests by executive officers to any judicial authority – This is

committed by any executive officer who shall address any order or suggestion
to any judicial authority with respect to any case or business coming within
the exclusive jurisdiction of the courts of justice.

The gist of the matter involves the interference by an executive officer in the
exclusive exercise by the Judiciary of its powers, in violation of the
Constitutional principle of Separation of Powers.

Illustration: Judge Jose issued a Decision ordering Barangay Chairperson

Jacinto of Camp Allen to remove the Barangay Hall which was built on a
private parcel of land without the owner’s consent. BC Jacinto issued an order
to Judge Jose requiring him to explain why the Barangay Hall should be
removed when it is a government structure. He also stated in his order
suggesting to Judge Jose that he could order the owner of the property to sell
it to the Barangay instead of having the Hall removed.

12.Unlawful appointments – This is committed by any public officer who shall

knowingly nominate or appoint to any public office any person lacking the
legal qualifications therefor.

Illustration: The position of Chief City Legal Officer for Baguio City was
rendered vacant on account of the retirement of Atty. Jose, the then
incumbent Chief City Legal Officer. The position required an applicant to have
had at least 5 years’ experience in law practice. Atty. Jacinto applied for the
position despite having only been in law practice for a year. Mayor Javier
appointed Atty. Jacinto to the position.

13.Abuses against Chastity – This may be committed by a public officer against

any of the following persons:

a. A woman interested in matters pending before such officer for

decision;

b. A woman with respect to which the public officer is required to submit

a report to or consult with a superior officer;

c. A woman under the custody of a warden or any other public officer; or

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 d. The wife, daughter, sister or relative within the same degree by affinity
of any person in the custody of such warden or officer.

For this purpose, the public officer may either be a man or a woman.

The concept of the abuse involves the power, authority and influence a public
officer possesses over a woman who is placed in a vulnerable position in the
manner described by the law.

The law grants special protection for women in this case and unfortunately, a
man is not benefited by it on the presumption that a woman possesses
chastity, which is defined as “purity in conduct and intention, “and
“abstention from all or unlawful sexual intercourse.” By process of elimination
and by definition of law, a man cannot be chaste.

The crime must be distinguished from “Crimes against Chastity,” which

specifically involves a crime committed against the sexual purity of the victim.
An abuse against chastity is a crime committed against a woman, not her
chastity. It may be committed as follows:

i. Any public officer who shall solicit or make immoral or indecent

advances to a woman interested in matters pending before such
officer for decision;

The nature of the crime is that the public officer will make an
immoral or indecent advance against a woman who is interested in
the outcome of a matter pending before the officer.

Illustration: Prosecutor Jose was resolving a complaint for acts of

lasciviousness filed by Jacinta against Javier. In the guise of
conducting a preliminary examination, Pros. Jose issued a subpoena
to Jacinta, requiring her to appear before him on a certain date.
When Jacinta arrived, Pros. Jose asked how Javier committed the
lascivious act and when Jacinta described it, Pros. Jose asked if he
can “re-enact” Javier’s actions.

ii. Any public officer who shall solicit or make immoral or indecent
advances to a woman with respect to which he is required to submit
a report to or consult with a superior officer.

Illustration: Josefa is a prisoner undergoing detention after being

convicted for estafa. For the duration of her sentence, she
maintained good conduct for which she hopes to benefit from good
conduct time allowances for her early release. Warden Javier is
reviewing her records and is tasked to prepare a report whether or
not he will recommend her early release. During a meeting between
he and Josefa, Warden Javier asked for oral sex in exchange for a
favorable recommendation for her early release.

iii. Any warden or other public officer directly charged with the care
and custody of prisoners or persons under arrest who shall solicit

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 or make immoral or indecent advances to a woman under his
custody.

Illustration 1: Police Master Sergeant Jose arrested Jacinta while

committing theft in flagrante delicto. While he was transporting her
in his private vehicle towards the police station for booking,
detention and investigation, Jacinta asked to be released on a
warning instead. PMSGT Jose suggested they “drop by” a motel
along Marcos Highway for him to “think about” whether or not to
grant her request.

While PMSGT Jose did not directly ask for anything immoral or
indecent, his remarks to “drop by” a motel for him to “think about”
whether or not to release her, the tenor of his statement suggests an
immoral or indecent advance.

Illustration 2: Jose is serving sentence for homicide. His wife,

Jacinta visits Jail Warden Javier to inquire into Jose’s living
conditions. Warden Javier, in meeting Jacinta asks for oral sex from
her.

To be liable for the crime it is not even required that there be a

condition for the woman to accede to the immoral or indecent
advance. The mere making of the immoral or indecent advance
consummates the crime.

REPUBLIC ACT No. 6713

Code of Conduct and Ethical Standards for Public Officials and Employees

Enacted on February 20, 1989, R.A. 6713 sets a standard for the code of conduct and
ethics of all public officers and employees for them to observe while in public
service.

R.A. 6713 repeals all earlier laws, decrees and orders which are inconsistent with its
provisions, except those which impose a higher penalty.

Compared with R.A. 3019

R.A. 3019 was enacted on August 17, 1960. It provided an expanded enumeration of
acts of graft and corruption which were not sufficiently addressed by the Revised
Penal Code. But while R.A. 3019 concerned itself with anti-graft and corrupt
practices, R.A. 6713 is more concerned with acts of conduct and expected ethical
considerations from public officers and employees.

The penalties under R.A 6713 include payment of a fine or removal from public
office at the least, and imprisonment not exceeding 5 years, at most. The penalties
under R.A. 3019 include payment of a fine at the least, and imprisonment not
exceeding 10 years, at most. Coupled with the declaration under Section 11 of R.A.

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6713 that states, “If the violation is punishable by a heavier penalty under another
law, he shall be prosecuted under the latter statute,” acts falling under R.A. 6713 and
R.A. 3019 would be punished under the latter law.

Norms of Conduct

Public officers and employees are required to observe the following standards of
personal conduct in the discharge and exercise of their official duties:

1. Commitment to public interest. - Public officials and employees shall always

uphold the public interest over and above personal interest. All government
resources and powers of their respective offices must be employed and used
efficiently, effectively, honestly and economically, particularly to avoid wastage
in public funds and revenues.

2. Professionalism. - Public officials and employees shall perform and

discharge their duties with the highest degree of excellence, professionalism,
intelligence and skill. They shall enter public service with utmost devotion
and dedication to duty. They shall endeavor to discourage wrong perceptions
of their roles as dispensers or peddlers of undue patronage.

3. Justice and sincerity. - Public officials and employees shall remain true to
the people at all times. They must act with justness and sincerity and shall not
discriminate against anyone, especially the poor and the underprivileged.
They shall at all times respect the rights of others, and shall refrain from
doing acts contrary to law, good morals, good customs, public policy, public
order, public safety and public interest. They shall not dispense or extend
undue favors on account of their office to their relatives whether by
consanguinity or affinity except with respect to appointments of such
relatives to positions considered strictly confidential or as members of their
personal staff whose terms are coterminous with theirs.

4. Political neutrality. - Public officials and employees shall provide service to

everyone without unfair discrimination and regardless of party affiliation or
preference.

The principle of political neutrality also discourages public officers and

employees from openly campaigning for or against a political candidate in any
election, or from openly giving or withdrawing support for any political
candidate because doing so might be subject of an interpretation that the
particular office to which the officer or employee belongs supports the said
political candidate, or otherwise, to the detriment of the requirement that
public officers and employees shall serve the public regardless of political
affiliation.

5. Responsiveness to the public. - Public officials and employees shall extend

prompt, courteous, and adequate service to the public. Unless otherwise
provided by law or when required by the public interest, public officials and
employees shall provide information of their policies and procedures in clear
and understandable language, ensure openness of information, public

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 consultations and hearings whenever appropriate, encourage suggestions,
simplify and systematize policy, rules and procedures, avoid red tape and
develop an understanding and appreciation of the socio-economic conditions
prevailing in the country, especially in the depressed rural and urban areas.

6. Nationalism and patriotism. - Public officials and employees shall at all

times be loyal to the Republic and to the Filipino people, promote the use of
locally produced goods, resources and technology and encourage
appreciation and pride of country and people. They shall endeavor to
maintain and defend Philippine sovereignty against foreign intrusion.

7. Commitment to democracy. - Public officials and employees shall commit

themselves to the democratic way of life and values, maintain the principle of
public accountability, and manifest by deeds the supremacy of civilian
authority over the military. They shall at all times uphold the Constitution and
put loyalty to country above loyalty to persons or party.

8. Simple living. - Public officials and employees and their families shall lead
modest lives appropriate to their positions and income. They shall not indulge
in extravagant or ostentatious display of wealth in any form.

Specific Duties of Public Officials and Employees

A reading of the specific duties of public officials and employees bring about a
common objective, which is to provide public service as promptly and expeditiously
as possible and without delay, as much as possible.

In the performance of their duties, all public officials and employees are under
obligation to:

1. Act promptly on letters and requests. - All public officials and employees
shall, within fifteen (15) working days from receipt thereof, respond to
letters, telegrams or other means of communications sent by the public. The
reply must contain the action taken on the request.

2. Submit annual performance reports. - All heads or other responsible

officers of offices and agencies of the government and of government-owned
or controlled corporations shall, within forty-five (45) working days from the
end of the year, render a performance report of the agency or office or
corporation concerned. Such report shall be open and available to the public
within regular office hours.

3. Process documents and papers expeditiously. - All official papers and

documents must be processed and completed within a reasonable time from
the preparation thereof and must contain, as far as practicable, not more than
three (3) signatories therein. In the absence of duly authorized signatories,
the official next-in-rank or officer in charge shall sign for and in their behalf.

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 4. Act immediately on the public's personal transactions. - All public officials
and employees must attend to anyone who wants to avail himself of the
services of their offices and must, at all times, act promptly and expeditiously.

5. Make documents accessible to the public. - All public documents must be

made accessible to, and readily available for inspection by, the public within
reasonable working hours.

There are documents and records which are not readily accessible to the
public, which include but are not limited to the following:

a. Records of court cases involving minors;

b. Records of court cases involving highly sensitive matters;
c. Documents and records pertaining to the private personal
information of a public officer or employee, subject to the Data
Privacy Act;
d. Documents and records pertaining to national security;
e. Documents and communication considered to be confidential by
competent authority;
f. Records deemed by law as confidential and restricted from
disclosure unless by court order.

Prohibited Acts and Transactions

1. Financial and material interest. - Public officials and employees shall not,
directly or indirectly, have any financial or material interest in any transaction
requiring the approval of their office.

2. Outside employment and other activities related thereto. - Public officials

and employees during their incumbency shall not:

a. Own, control, manage or accept employment as officer, employee,

consultant, counsel, broker, agent, trustee or nominee in any private
enterprise regulated, supervised or licensed by their office unless
expressly allowed by law;

b. Engage in the private practice of their profession unless authorized by

the Constitution or law, provided, that such practice will not conflict or
tend to conflict with their official functions; or

c. Recommend any person to any position in a private enterprise which

has a regular or pending official transaction with their office.

These prohibitions shall continue to apply for a period of one (1) year after
resignation, retirement, or separation from public office, but the
professional concerned cannot practice his profession in connection with
any matter before the office he used to be with, in which case the one-year
prohibition shall likewise apply.

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 3. Disclosure and/or misuse of confidential information. - Public officials
and employees shall not use or divulge, confidential or classified information
officially known to them by reason of their office and not made available to
the public, either:

a. To further their private interests, or give undue advantage to anyone; or

b. To prejudice the public interest.

4. Solicitation or acceptance of gifts. - Public officials and employees shall not

solicit or accept, directly or indirectly, any gift, gratuity, favor, entertainment,
loan or anything of monetary value from any person in the course of their
official duties or in connection with any operation being regulated by, or any
transaction which may be affected by the functions of their office.

As to gifts or grants from foreign governments, the Congress consents to:

a. The acceptance and retention by a public official or employee of a gift

of nominal value tendered and received as a souvenir or mark of
courtesy;

b. The acceptance by a public official or employee of a gift in the nature of

a scholarship or fellowship grant or medical treatment; or

c. The acceptance by a public official or employee of travel grants or

expenses for travel taking place entirely outside the Philippine (such as
allowances, transportation, food, and lodging) of more than nominal
value if such acceptance is appropriate or consistent with the interests
of the Philippines, and permitted by the head of office, branch or
agency to which he belongs.

REPUBLIC ACT No. 3019

The Anti-Graft and Corrupt Practices Act

R.A. 3019 was enacted to address cases of graft and corruption being committed by
public officers and employees which may not be punishable under the Revised Penal
Code, or where the penalty imposed by law is too light compared to the act, or is
merely administrative in nature.

But while R.A. 3019 addresses some wrongful acts which are also punishable under
the Revised Penal Code, it does not amend, modify or repeal the inconsistent or
similar provisions which is why an offender may be liable under R.A. 3019 and the
Revised Penal Code at the same time.

The term, “Public officer” under this law includes elective and appointive officials
and employees, permanent or temporary, whether in the classified or unclassified or
exempt service receiving compensation, even nominal, from the government.

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The term “graft” means the “acquisition of gain or advantage by dishonest, unfair or
sordid means, especially through the abuse of his position or influence in politics,
business, relationships, connections and other matters which may be subject of
abuse,1 while the term “corruption” generally means “the misuse of entrusted
power for private benefit.”2 Although admitting of different definitions, graft and
corruption in the Philippine setting generally refer to the same unlawful act and are
often interchangeable.34

Prohibited Acts

1. Persuading, inducing or influencing another public officer to perform an act

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

Illustration 1: In exchange for a condominium unit, Mayor Jose

recommended the issuance of a certificate of zoning compliance in favor of
DGI Construction Corporation despite the latter not being able to comply with
the requirements of the National Building Code.

Illustration 2: Mayor Jose promised Vice Mayor Jacinto that the latter will
receive Php2,000,000.00 as “gratuity” if the latter can convince the City
Council of Baguio to support the construction of a waste management facility
in Burnham Park without the project going through public consultation, as
required.

2. Directly or indirectly requesting or receiving any gift, present, share,

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

Illustration: In exchange for being awarded a public works project for the
repair of a public highway, Congressman Jose through his secretary, Javier
requested from Jacinto, the President of FX Construction 20% of the total
project cost.

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

pecuniary or material benefit, for himself or for another, from any person for
whom the public officer, in any manner or capacity, has secured or obtained,
or will secure or obtain, any Government permit or license, in consideration
for the help given or to be given, without prejudice to Section thirteen of this
Act.

Illustration: In exchange for Senator Jose’s favorable vote for the grant of a
legislative franchise in favor of ABT Television Network, Senator Jose’s wife,
Jacinta will be given free airtime for her to advertise her business on
television.

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4. Accepting or having any member of his family accept employment in a private
enterprise which has pending official business with him during the pendency
thereof or within one year after its termination.

Illustration: DPWH Regional Director Jose’s son, Jacinto was employed by

Wealthy Construction, Inc. as its Consultant, 6 months after Wealthy
Construction completed a public works project awarded by the DPWH.

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

Illustration: Atty. Jose, Chairman of the Board of PAGCOR immediately

granted permits to operate 8 casinos owned and operated by his friend,
Jacinto despite there being other applications for the grant of permits filed by
other casino owners and operators which have been pending for more than 3
years.

6. Neglecting or refusing, after due demand or request, without sufficient

justification, to act within a reasonable time on any matter pending before
him for the purpose of obtaining, directly or indirectly, from any person
interested in the matter some pecuniary or material benefit or advantage, or
for the purpose of favoring his own interest or giving undue advantage in
favor of or discriminating against any other interested party.

Illustration: Judge Jose deferred ruling on Atty. Jacinto’s motion for the
issuance of a writ of execution to implement the court’s decision ordering
Javier to restore ownership of a 6-hectare parcel of commercial land to Atty.
Jacinto’s client, Joselito, until the latter agrees to transfer to Judge Jose 1
hectare of the said property.

7. Entering, on behalf of the Government, into any contract or transaction

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

Illustration: Secretary Jose of the Department of Energy entered into a joint-

exploration agreement with Chang Energy Corporation for the exploration,
extraction and utilization of natural gas deposits in the West Philippine Sea
where Chang will be entitled to 70% of all proceeds of the activity, and the
remaining 30% will pertain to the government.

8. Directly or indirectly having financing or pecuniary interest in any business,

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

Illustration: Supreme Court Chief Justice Jacinto recommended the grant of

an award for the engagement of Phoenix Security Agency, a business owned

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 and operated by Justice Jacinto’s family, for the grant of security services for
all judges nationwide.

9. Directly or indirectly becoming interested, for personal gain, or having a

material interest in any transaction or act requiring the approval of a board,
panel or group of which he is a member, and which exercises discretion in
such approval, even if he votes against the same or does not participate in the
action of the board, committee, panel or group.

Interest for personal gain shall be presumed against those public officers
responsible for the approval of manifestly unlawful, inequitable, or irregular
transactions or acts by the board, panel or group to which they belong.

Illustration: Dr. Jose is a member of the Board of the Philippine Health

Insurance Corporation (PhilHealth). In a proposal to purchase 100 million
units of a COVID-19 vaccine from PharmaCorp, Dr. Jose votes against the
proposal because PharmaCorp refused to course the importation of the
vaccine with TransShippers, Dr. Jose’s shipping company.

10.Knowingly approving or granting any license, permit, privilege or benefit in

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

Illustration: Atty. Jose, Regional Director of the LTFRB granted a franchise to

operate a public transportation vehicle to Jacinto, who was previously
blacklisted by the Department of Transportation for failing to maintain the
roadworthiness of his bus units leading to multiple vehicular incidents that
claimed the lives of at least 45 passengers.

11.Divulging valuable information of a confidential character, acquired by his

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

Illustration 1: Secretary Jose of the Department of Foreign Affairs learned

that China is brokering a deal with the United States of America for a joint
military training exercise to be conducted in the West Philippine Sea. Instead
of delivering the information to the President, Secretary Jose held a press
conference and revealed the information to the public, causing widespread
protests and riots.

Illustration 2: Atty. Jose of the Office of the Bar Confidant received

information that the next Bar Examinations will be done in 43 locations
nationwide. The information was supposed to be released by the Bar
Examination Chairman, Justice Jacinto in a Bar Bulletin in 4 weeks; however
before the official release, Atty. Jose published the information on Twitter.

12.Prohibition on private individuals — It shall be unlawful for any person

having family or close personal relation with any public official to capitalize
or exploit or take advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present, gift or material or

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 pecuniary advantage from any other person having some business,
transaction, application, request or contract with the government, in which
such public official has to intervene. Family relation shall include the spouse
or relatives by consanguinity or affinity in the third civil degree. The word
“close personal relation” shall include close personal friendship, social and
fraternal connections, and professional employment all giving rise to intimacy
which assures free access to such public officer.

It shall also be unlawful for any person knowingly to induce or cause any
public official to commit any of the offenses defined in Section 3 hereof.

Illustration: Jose, the son of President Javier, received a brand-new

Mitsubishi Strada from Atty. Jacinto, in exchange for Jose’s recommendation
that Atty. Jacinto be appointed by President Javier as General Manager of the
Social Security System.

13.Prohibition on certain relatives.—It shall be unlawful for the spouse or for any
relative, by consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines, the
President of the Senate, or the Speaker of the House of Representatives, to
intervene, directly or indirectly, in any business, transaction, contract or
application with the Government: Provided, That this section shall not apply
to any person who, prior to the assumption of office of any of the above
officials to whom he is related, has been already dealing with the Government
along the same line of business, nor to any transaction, contract or application
already existing or pending at the time of such assumption of public office,
nor to any application filed by him the approval of which is not discretionary
on the part of the official or officials concerned but depends upon compliance
with requisites provided by law, or rules or regulations issued pursuant to
law, nor to any act lawfully performed in an official capacity or in the exercise
of a profession.

Illustration 1: Jose is a brother of Senator Jacinto, the incumbent Senate

President. He is the General Manager of Cyberlink Systems which is seeking a
legislative franchise from the Senate to operate a satellite-based internet
service. He speaks with Senator Jacinto and asks that the latter convince the
Senate to grant his application for a legislative franchise.

Illustration 2: Jose is the General Manager of Cyberlink Systems which is

seeking a legislative franchise from the Senate to operate a satellite-based
internet service. While the application was still pending, a national election
was concluded where Jose’s brother, Jacinto was elected Senator and later as
Senate President.

There is no violation in this case because Jose was already dealing with the
government before his brother, Jacinto assumed office as Senate President.

14.Prohibition on Members of Congress. —It shall be unlawful hereafter for any

Member of the Congress during the term for which he has been elected, to
acquire or receive any personal pecuniary interest in any specific business
enterprise which will be directly and particularly favored or benefited by any

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 law or resolution authored by him previously approved or adopted by the
Congress during the same term.

The provision of this section shall apply to any other public officer who
recommended the initiation in Congress of the enactment or adoption of any
law or resolution, and acquires or receives any such interest during his
incumbency.

It shall likewise be unlawful for such member of Congress or other public

officer, who, having such interest prior to the approval of such law or
resolution authored or recommended by him, continues for thirty days after
such approval to retain such interest.

Illustration: Congressman Jose filed a resolution urging the passage of a law

to declare the Municipality of Sancho as a city. Secretly, Congressman Jose was
promised 20% of all revenue earned by Sancho Municipality from parking
spaces it would lease out to tourists if it becomes a city.

15.Failure of any public officer to file their Statement of Assets, Liabilities and
Net Work (SALN):

a. Within 30 days from assuming public office;

b. Within the month of January of every year;
c. Upon expiry of the term of office;
d. Upon resignation or separation from public office

On the Giving of and Receipt of Gifts

Section 14 of the law states:

“Unsolicited gifts or presents of small or insignificant value offered or given as a

mere ordinary token of gratitude or friendship according to local customs or usage,
shall be excepted from the provisions of this Act.”

While the receipt of gifts is not punished under R.A. 3019, the acceptance of the
same may be punished as indirect bribery under the Revised Penal Code, if the
present was given to the public officer by reason of his office or function.

REPUBLIC ACT No. 7080

Anti-Plunder Law

Republic Act No. 7080 defines and punishes the crime of plunder committed by a
public officer, which includes any person holding public office under the government
of the Philippines either by election, appointment or by contract.

The inclusion of a contract-based public officer is an expansion of the definition of a

public officer as used in R.A. 3019 and R.A. 6713.

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Plunder, defined

Section 2 of the law as amended by Republic Act No. 7659 states:

“Sec. 2. Definition of the Crime of Plunder; Penalties. - Any public officer who,
by himself or in connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons, amasses,
accumulates or acquires ill-gotten wealth through a combination or series of
overt criminal acts as described in Section 1 (d) hereof in the aggregate
amount or total value of at least Fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished by reclusion perpetua to
death. Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise
be punished for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating circumstances,
as provided by the Revised Penal Code, shall be considered by the court. The
court shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks derived from
the deposit or investment thereof forfeited in favor of the State.”

Simply, plunder is the act of amassing a total amount of at least Fifty Million Pesos by
any of the acts stated in Section 1(d) of R.A. 7080 by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons.

Any person whether a public officer or public employee or even a private person
who participated with the public officer in the amassing of the above amount will be
liable for plunder. For this purpose, degrees of participation whether as principal,
accomplice or accessory shall be taken into consideration, in addition to any
mitigating or extenuating circumstances as defined by the Revised Penal Code which
may be present.

The law defines “ill-gotten wealth:”

“Ill-gotten wealth means any asset, property, business enterprise or material

possession of any person within the purview of Section Two (2) hereof (the
definition of ‘plunder’ in R.A. 7659), acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:

1. Through misappropriation, conversion, misuse, or malversation of public

funds or raids on the public treasury;

2. By receiving, directly or indirectly, any commission, gift, share, percentage,

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

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 3. By the illegal or fraudulent conveyance or disposition of assets belonging to
the National Government or any of its subdivisions, agencies or
instrumentalities or government-owned or -controlled corporations and their
subsidiaries;

4. By obtaining, receiving or accepting directly or indirectly any shares of stock,

equity or any other form of interest or participation including promise of
future employment in any business enterprise or undertaking;

5. By establishing agricultural, industrial or commercial monopolies or other

combinations and/or implementation of decrees and orders intended to
benefit particular persons or special interests; or

6. By taking undue advantage of official position, authority, relationship,

connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and the
Republic of the Philippines.

Jurisdiction and Evidence

Until otherwise provided by law, all prosecutions for plunder shall be within the
original jurisdiction of the Sandiganbayan.

The degree of evidence to secure conviction is still proof beyond reasonable doubt;
except that the evidence may only prove a pattern of acts which illustrate the overall
scheme, conspiracy or strategy to amass the required amount. Otherwise stated, it is
not necessary to prove each and every detail of the unlawful act. The rationale is
because it may be impossible, or at least extremely difficult to prove every detail and
step of the process in amassing the required amount because there is a good
probability that the public officer involved will have destroyed, concealed or
otherwise rendered evidence unavailable.

REPUBLIC ACT NO. 11596

An Act Prohibiting the Practice of Child Marriage

Definition of Terms

1. Child - refers to any human being under eighteen (18) years of age, or any
person eighteen (18) years of age or over but who is unable to fully take care
and protect oneself from abuse, neglect, cruelty, exploitation or
discrimination because of a physical or mental disability or condition;

2. Child marriage - refers to any marriage entered into where one or both
parties are children as defined in the paragraph above, and solemnized in civil
or church proceedings, or in any recognized traditional, cultural or customary
manner. It shall include an informal union or cohabitation outside of wedlock
between an adult and a child, or between children;

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 3. Guardians - refer to relatives or individuals taking custody of a child in the
absence of the parents, or anyone to whom a child is given or left for care or
custody, whether permanent or temporary; or persons judicially appointed by
a competent court as guardians;

4. Parents - refer to biological parents or adoptive parents; and

5. Solemnizing officers - refers to any person authorized to officiate a marriage

under Executive Order No. 209, otherwise known as “The Family Code of the
Philippines,” or recognized to celebrate marriages by reason of religion,
tradition, or customs.

Prohibited Acts

1. Facilitation of Child Marriage – includes any person who causes, fixes,

facilitates, or arranges a child marriage.

2. Solemnization of Child Marriage

3. Cohabitation of an Adult with a Child outside wedlock

Legal Effect of a Child Marriage – a child marriage is void ab initio, and the action
or defense for the declaration of absolute nullity of a child marriage shall not
prescribe in accordance with Articles 35 and 39 of the Family Code of the
Philippines. Articles 50 to 54 of the Family Code of the Philippines shall govern on
matters of support, property relations, and custody of children after the termination
of the child marriage.
CRIMES AGAINST PERSONS

A “crime against person” is a crime committed against the person of the victim – that
is, the individual themselves. There are no special or restrictive conditions before a
criminal complaint may be initiated because in these cases, any person may initiate
a criminal charge against an offender with or without the knowledge or consent of
the victim.

A crime against a person may involve first, the destruction of life or second, the
infliction of physical injuries without the taking of life or having the intention to take
a life.

Destruction of Life

To constitute a crime against person involving the destruction of life, the following
must be taken into consideration:

1. The victim must lose their life for the crime to be consummated;

2. If the victim does not die but suffers a non-lethal or a non-mortal wound, the
crime is only at its attempted state because an essential requisite for its
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 accomplishment, which is the infliction of a lethal or mortal wound that
should cause death, is not present;

3. If the victim suffers a lethal or mortal wound but does not die because of
timely medical intervention without the participation of the offender, the
crime is at its frustrated state. It is essential that the offender should not
contribute to the survival of the victim because to be a frustrated felony, the
crime must not be produced by causes independent of the will of the
perpetrator;

4. The infliction of the injury by the offender must include an intention to kill –
that is, an intention to take the life of the victim, or to take the life of any
person in case of an indiscriminate infliction of injury;

5. The use of a weapon for the purpose of inflicting an injury upon another is
evidence of an intention to kill, for the reason that a weapon can make more
effective an attack against another, such that the use of a weapon is logically
interpreted as proof of the intent of the offender to ensure the success of the
attack;

6. If there is no proof of an intention to kill, the crime is not a crime against

persons. It may constitute criminal negligence or some other crime depending
on the circumstances.

The crimes against persons involving the destruction of life are:

Parricide

It is the killing of the offender’s father, mother, or child, whether legitimate or

illegitimate, or any of their ascendants, or descendants, or their spouse.

The enumeration of relatives to constitute parricide is exclusive to ascendants and

descendants, and one’s lawful spouse. Consider the following:

1. The killing of a common-law spouse by the other is not parricide;

2. The killing of a person by another, where the couple was married not in
accordance with the Family Code of the Philippines, is not parricide;

3. The killing of collateral relatives – siblings, cousins, aunts, uncles – is not

parricide;

4. In the killing of a parent or child, the relationship may be legitimate or

illegitimate;

5. In the killing of any other descendant or ascendant, the relationship must be

legitimate;

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 6. In the killing of an ascendant or descendant, the relationship must be
biological because the basis of classification between murder or homicide on
one hand and parricide on the other, is blood relationship in the direct
ascending or descending line

When the Person Killed is a Child

In crimes against persons, a child is any person aged below eighteen (18) years.
When the victim is a child, the following matters must be taken into consideration in
determining the proper felony, first, the child’s age, second, the child’s relationship
with the offender; and third, the attending circumstances of the killing.

If the victim is less than three (3) days old, the crime committed is infanticide, not
parricide even if the victim is the child of the offender. If the victim is at least three
(3) days old, the crime committed is parricide if the offender is a parent or a
legitimate ascendant. Where the relationship between the parties is adoptive where
the child was lawfully adopted by the offender, or if there is no relation between the
victim and the offender, the crime may be murder, if the qualifying circumstance of
abuse of superior strength is alleged and proved.

When the Person Killed is the Spouse

As an exception to the rule, the killing of a spouse is punished as parricide even if

there is no blood relation between the victim and the offender. The law requires that
the marriage be lawful, in that the marriage should have been entered into in
accordance with the Family Code of the Philippines.

Where non-Filipinos of the same sex are validly married abroad, and while in the
Philippines one spouse kills the other, the crime committed should be parricide.
While the Philippines does not have laws allowing same-sex marriage, the principle
of lex loci celebrationis requires Philippine law to respect the fact of marriage if the
marriage is validly celebrated abroad. But if one or both spouses are citizens of the
Philippines, the marriage is not valid here on the basis of national law even if it may
have been validly celebrated abroad. This is because Filipinos of the same sex are
currently not allowed by law to marry each other. In case one is killed by another,
the crime would be murder or homicide as the case may be.

In case of Muslim spouses where a man is validly married to more than one woman
under Shari’a Law, it is the killing of the first wife which is punished as parricide.
The dispositive portion in People of the Philippines vs. Subano reads:

“We are, however, of the opinion and so hold that the crime committed is
homicide and not parricide. From the testimony of the father of the deceased,
it appears that the defendant has three wives and that the deceased was the
last in point of time. Although the practice of polygamy is approved by custom
among these non-Christians, polygamy, however, is not sanctioned by the
Marriage Law which merely recognizes tribal marriage rituals. The deceased,

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 under the law, is not thus the lawful wife of the defendant and this precludes
conviction for the crime of parricide.”

Parricide is an Intentional Felony

For an act to be punished as parricide, there must be an intention on the part of the
offender to kill the victim despite the knowledge that the victim is a parent or a
biological child or a legitimate other descendant or ascendant.

Where intent to kill is absent or not proved with sufficient evidence, the killing is
still considered parricide. This is because of the relationship between the offender
and the victim. With the lack of intent, the felony becomes culpable, not intentional
and as such, the act must be punished as “reckless imprudence resulting in
parricide.”

Knowledge of Relationship is Immaterial

The special circumstance that leads to parricide is the blood relationship between
the offender and the victim. The law does not concern itself with the knowledge of
the offender of such relationship.

The following may best prove the fact of relationship:

1. Marriage Certificate;
2. Certificate of Live Birth;
3. DNA evidence;
4. Testimonies proving relationship, where the testimony is not controverted;
5. Other circumstances proving relationship, where the circumstantial evidence
is not disputed.

But where the offender does not know that their victim is their spouse, parent or
child, or legitimate other ascendant or descendant, the crime committed is still
parricide because of the fact of relationship.

Conspiracy and Parricide

The fact of relationship for the purpose of being charged and convicted for parricide
is unique to the offender who is actually related to the victim. Thus in a case where
the victim is the spouse of only one of the accused who acted in conspiracy, it is that
accused who will be charged and convicted for parricide because of the fact of
relationship. The other accused will be charged and convicted for homicide or
murder as the case may be because of absence of the fact of relationship.

This is an exception to the rule in conspiracy that the liability of one shall be the
liability of all.

Aberratio Ictus, Error in Personae and Honest Mistake of Fact

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Where the offender dealt a killing blow against his intended victim but instead hit
their parent, the offender is liable for parricide. The penalty to be imposed will be
governed by Article 49.

Where the offender intended to kill a person but misidentified the latter and instead,
killed their illegitimate son, the offender should be liable for parricide because the
intent to kill their original victim is transferred to the actual victim. The rule is
different if the offender killed a stranger while thinking that it was their spouse; the
liability should be that for murder or homicide as the case may be because the
essential element of relationship is lacking.

But where a spouse is killed by the other by an honest mistake of fact, there is no
liability for parricide because an act committed under this circumstance is not a
crime.

Impossible Crime of Parricide

An offender who, with intent to kill burned the body of their spouse, believing them
to be alive but who already turned out to have died in their sleep should be charged
and convicted for an impossible crime of parricide because of the following matters:

1. The fact that the offender knew that the (supposed) person they are killing is
their spouse;

2. The fact that there is an inherent impossibility of accomplishing the act

because their spouse was already dead.

Criminal Procedure; the Fact of Relationship must be Alleged

Where the victim is a spouse, child, parent, other legitimate ascendant or

descendant of the offender, the fact of relationship must be alleged in the criminal
complaint filed by the offended party, any peace officer or any public officer in
charge of enforcing the law violated. After the finding of probable cause by the
investigating prosecutor the fact of relationship must also be alleged in the criminal
Information which the prosecutor signs and files with the court to initiate the trial of
the criminal case.

If the fact of relationship is not alleged in the complaint or Information, the accused
may only be convicted of homicide or murder as the case may be. If the fact of
relationship was subsequently proven during trial even if it was not alleged in the
Information, the accused should still be convicted for homicide or murder as the
case may be, and the fact of relationship must be treated as a generic aggravating
circumstance.

As stated in People of the Philippines vs. Jumawan, et.al:

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 “Presentacion should have been accused of parricide but as it is, since her
relationship to the deceased is not alleged in the information, she, like the
others, can be convicted of murder only qualified by abuse of superior
strength.

Although not alleged in the information, relationship as an aggravating

circumstance should be assigned against the appellants. True, relationship is
inherent in parricide, but Presentacion stands convicted of murder. And as to
the others, the relationships of father-in-law and brother-in-law aggravate the
crime. (Aquino, Penal Code, Vol. I. p. 406 [1976].)”

The Jumawan case must not be interpreted to mean that the accused will suffer an
aggravating circumstance that is proven during trial but which was not alleged in the
complaint or information, because adopting such a conclusion violates the right of
the accused to due process of law and to be informed of the nature and cause of the
accusation against them. If any at all, the Jumawan principle should be applied only
in cases involving the same or similar facts, unless the Supreme Court adopts a
contrary position in a subsequent case.

Infanticide

Infanticide is the killing of a person below three (3) days of age. It is a specific
designation of the law such that, although the crime also constitutes parricide if the
infant is a child or a legitimate descendant of the offender, and possibly murder
because of an abuse of superior strength, the crime is still defined and punished as
infanticide.

Homicide

Homicide is the killing of another person, where the offender had the intention to
kill the former.

But to constitute homicide, it is essential that:

1. The offender must have intentionally killed the victim, otherwise the crime is
reckless imprudence resulting in homicide, a culpable felony;

2. The victim must not be the parent or child of the offender, or any other
legitimate ascendant or descendant, otherwise the crime is parricide;

3. The victim must not be less than three (3) days old, otherwise the crime is
infanticide;

4. The killing must not be attended by any qualifying aggravating circumstance

under Article 248 of the Revised Penal Code, otherwise the crime is murder;

5. The killing must involve a person who is actually born in accordance with the
Civil Code, otherwise the crime is abortion.

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Murder

In other jurisdictions, homicide and murder may be interchangeable terms and refer
to the same act of unlawful killing of another. In Philippine jurisdiction the two
crimes are entirely separate and distinct.

Murder is the unlawful killing of a person by another, while being attended to by an

intention to kill and at least one qualifying aggravating circumstance without
constituting parricide or infanticide as the case may be.

It is an intentional felony which cannot be a culpable one committed by criminal

negligence. This is so because criminal negligence presupposes the lack of intent to
commit the crime, such that the basis of the criminal liability is not the result of the
act, but the negligence of the offender that caused damage, injury or death. As such,
there is no such crime as “reckless imprudence resulting in murder,” even if the
circumstances that caused the death of the victim appeared to be a qualifying
aggravating circumstance.

Illustration: Jose was driving home while under the influence of alcohol. Having his
senses impaired, he ran over Jacinto who was crossing a pedestrian lane. Jacinto
died as a result.

Jose is not liable for murder although the law treats the killing of a person using a
motor vehicle as a qualifying aggravating circumstance. He is liable for reckless
imprudence resulting in homicide, where the term, “homicide” is to be used in its
generic sense, which is the unlawful killing of a person.

On the other hand, if Jose intended to kill Jacinto and thereby ran over him, causing
his death, Jose is liable for murder.

Circumstances that Qualify the Killing of a Person to Murder

Treachery or Alevosia

There is treachery when the offender commits any of the crimes against the person,
employing means, methods, or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense
which the offended party might make (Article 14, par.16)

That there is treachery when the attack is made from behind or when the mortal
wound is located behind the victim is a misconception. The location of the mortal
wound or the direction from where the attack came from do not by themselves
establish treachery, although they may be considered evidence to prove treachery,
among other available circumstances.

The nature of treachery as a qualifying circumstance is that the manner by which the
attack was made is done in such a way as to ensure success. This means that the

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offender will employ means to minimize risk to them without sacrificing the
probability that the attack will be successful.

In People of the Philippines vs. Bugarin the Supreme Court declared:

“The qualifying circumstance of treachery or alevosia does not even require

that the perpetrator attack his victim from behind. Even a frontal attack could
be treacherous when unexpected and on an unarmed victim who would be in
no position to repel the attack or avoid it. The essence of treachery is that the
attack comes without a warning and in a swift, deliberate, and unexpected
manner, affording the hapless, unarmed, and unsuspecting victim no chance
to resist or escape the sudden blow. Indubitably, Cristito was unarmed and
had no inkling that an attack was forthcoming. He neither had a chance to
mount a defense. In such a rapid motion, Bugarin shot Cristito, affording the
latter no opportunity to defend himself or fight back. The deliberate swiftness
of Bugarin's attack significantly diminished the risk to himself that may be
caused by the retaliation of the victim.”

But in People of the Philippines vs. Petalino the Supreme Court clarified the concept
of a “sudden and unexpected attack:”

“Secondly, the finding of the attendance of treachery, assuming the sufficiency

of the allegations thereon in the information, should be based on clear and
convincing evidence. The attendance of treachery cannot be presumed. The
same degree of proof to dispel any reasonable doubt was required before
treachery could be considered either as an aggravating or qualifying
circumstance. In short, such evidence must be as conclusive as the fact of
killing itself.

For treachery to be properly appreciated, the State must show not only that
the victim had been unable to defend himself, but also that the accused had
consciously adopted the mode of attack to facilitate the perpetration of the
killing without risk to himself. The fact alone that the attack mounted by the
accused-appellant against the victim was sudden and unexpected, and did not
afford the latter any opportunity to undertake any form or manner of defense
or evasion did not necessarily justify a finding that treachery was attendant
without any showing that the accused-appellant had consciously and
deliberately adopted such mode of attack in order to insure the killing of the
victim without any risk to himself arising from the defense that the latter
could possibly adopt. That showing was not made herein. For one, the
stabbing was committed when the victim was walking together with Bariquit,
whose presence even indicated that the victim had not been completely
helpless. Also, Bariquit's testimony indicated that the encounter between the
victim and the accused-appellant had been only casual because the latter did
not purposely seek out the victim. In this connection, treachery could not be
appreciated despite the attack being sudden and unexpected when the
meeting between the accused and the victim was casual, and the attack was
done impulsively.”

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Taking advantage of superior strength

Abuse of superior strength is present whenever there is a notorious inequality of

forces between the victim and the aggressor, assuming a situation of superiority of
strength notoriously advantageous for the aggressor selected or taken advantage of
by him in the commission of the crime. The fact that there were two persons who
attacked the victim does not per se establish that the crime was committed with
abuse of superior strength, there being no proof of the relative strength of the
aggressors and the victim. The evidence must establish that the assailants purposely
sought the advantage, or that they had the deliberate intent to use this advantage.6

In People of the Philippines vs. Cortez and Bagayawa the Supreme Court declared:

“As to the killings of Minda, Baby, and Jocelyn, the courts a quo opined that
abuse of superior strength attended their killings, considering that Cezar and
Froilan used deadly weapons, i.e., knives, in killing them. Although there have
been cases where abuse of superior strength was appreciated where a male
equipped with a deadly weapon attacked an unarmed and defenseless
woman, jurisprudence nonetheless provides that for abuse of superior
strength to be appreciated, "the evidence must establish that the assailants
purposely sought the advantage, or that they had the deliberate intent to use
this advantage. To take advantage of superior strength means to purposely
use excessive force out of proportion to the means of defense available to the
person attacked." In this case, it does not appear that Cezar and Froilan
specifically sought the use of deadly weapons so as to be able to take
advantage of their superior strength against Minda, Baby, and Jocelyn. In fact,
their criminal design to raid the house and consequently, to use deadly
weapons in killing whomever they encounter therein was applied
indiscriminately, regardless of whether their victims were male (Mario and
Efren) or female (Minda, Baby, and Jocelyn). Therefore, there is reasonable
doubt as to whether abuse of superior strength may be appreciated in this
case. Nevertheless, the Court finds that the qualifying circumstance of
treachery may be appreciated in this case, considering that Minda, Baby, and
Jocelyn - similar to Mario were attacked in the middle of the night while they
were sleeping, unarmed, and defenseless. As such, their killings were still
correctly classified as Murders.”
Commission of the crime with the aid of armed men

The term, “men” must be understood in its generic sense, in that the crime should
have been committed with the aid of an armed person, whether that person is a man
or a woman.

The concept of being armed does not necessarily require that the person assisting
the offender whether as accomplices, accessories or co-principals be armed with a
firearm, blade or any conventional weapon. By definition, a “weapon” is anything
that is used to inflict injury or to destroy or damage a thing. Thus, usual objects
when used to inflict injury or damage, may be considered weapons.

In the early case of People of the Philippines vs. Pinca the Supreme Court found:

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 “The crime was committed with the aid of armed men. At least, two of the
accused, the appellants herein, were armed with carbine and bolo, when the
five accused perpetrated the crime. From which We may deduce that as far as
the evidence in the case at bar is concerned, there exists three aggravating
circumstances, to wit: dwelling, treachery and the crime was committed with
the aid of armed men.”

The mere presence of armed men does not constitute the qualifying aggravating
circumstance. It must be proved that the armed men either directly took part in the
commission of the crime or afforded some support to the point that the offender
must avail themselves of their aid or rely upon them to ensure the success of the
commission of the crime.

By employing means to weaken the defense

or of means or persons to insure or afford impunity.

The following may be considered as means to weaken the defense of an intended

victim:

1. Rendering the victim unconscious;

2. Casting a cover over the head of the victim to disorient them;
3. Throwing dirt at the eyes of the victim;
4. Intoxicating the victim.

“Impunity” refers to being able to avoid punishment, retaliation or other injurious

consequences of an illegal act. By adopting means or employing persons to insure or
afford impunity, the offender plans the commission of the crime without any
injurious consequence to them, or with a good chance of escaping arrest or
prosecution after its commission.

In consideration of a price, reward, or promise.

In People of the Philippines vs. Hipolito and Malagamba the Supreme Court ruled:

“The record shows that the accused Feliciano Hipolito made arrangements
with his co-accused Cirilo Malagamba relative to the killing of Concepcion
Bustamante Ang and not with Vicente Ang, although Cirilo Malagamba said
that he was acting at the instance of the said Vicente Ang, and it was the
accused Cirilo Malagamba who paid him the amount of P2,800.00.
Accordingly, whether or not Vicente Ang was prosecuted in connection with
the slaying of Concepcion Bustamante Ang is of little importance.

The trial court, therefore, did not commit an error in finding the accused
Feliciano Hipolito guilty of the crime of MURDER for the killing of Concepcion

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 Bustamante Ang, qualified by evident premeditation and aggravated by the
circumstance that the crime was committed in consideration of a price,
reward, or promise.”

To be considered a qualifying aggravating circumstance the price, reward or promise

must be the motivating factor that caused the offender to commit the crime, placing
the offender in the position of a principal by direct participation and the person who
promised or gave the price or reward, as principal by inducement.

If the price, reward or promise was made or given after the crime is accomplished,
the circumstance cannot be appreciated as qualifying since it existed after the fact,
that is, after the crime was committed. In this case, the price, reward or promise was
not the reason for the commission of the crime. In simpler terms, the promise to give
the price or reward must be made before the crime is committed, although the
actual price or reward be given after its commission.

By means of inundation, fire, poison, explosion, shipwreck, stranding of a

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

The offender should cause any of the foregoing means to kill their victim. To be a
qualifying circumstance these should not be a consequence of the killing or used to
conceal the crime.

On the use of an explosion to kill, it must be clarified that an explosion to be used as

a means to kill a person may be created with the use of an explosive or with the use
of any other object than can produce an explosion.

The enactment of R.A. 8294 considered the illegal possession of an explosive as a

generic aggravating circumstance, when the illegally-possessed explosive is used to
kill a person. But it must be clear that R.A. 8294 did not amend the provisions of the
Revised Penal Code on murder as regards the qualifying circumstance of using an
explosion to kill a person. Because if an offender uses an explosion, not caused by an
illegally-possessed explosive, in killing his victim, the crime committed is still
murder.

The Supreme Court in People of the Philippines vs. Comadre, et.al. discussed:

“When the killing is perpetrated with treachery and by means of explosives,

the latter shall be considered as a qualifying circumstance. Not only does
jurisprudence support this view but also, since the use of explosives is the
principal mode of attack, reason dictates that this attendant circumstance
should qualify the offense instead of treachery which will then be relegated
merely as a generic aggravating circumstance.

Incidentally, with the enactment on June 6, 1997 of Republic Act No. 8294
which also considers the use of explosives as an aggravating circumstance,
there is a need to make the necessary clarification insofar as the legal
implications of the said amendatory law vis-à -vis the qualifying circumstance

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of "by means of explosion" under Article 248 of the Revised Penal Code are
concerned. Corollary thereto is the issue of which law should be applied in the
instant case. R.A. No. 8294 was a reaction to the onerous and anachronistic
penalties imposed under the old illegal possession of firearms law, P.D. 1866,
which prevailed during the tumultuous years of the Marcos dictatorship. The
amendatory law was enacted, not to decriminalize illegal possession of
firearms and explosives, but to lower their penalties in order to rationalize
them into more acceptable and realistic levels.

This legislative intent is conspicuously reflected in the reduction of the

corresponding penalties for illegal possession of firearms, or ammunitions
and other related crimes under the amendatory law. Under Section 2 of the
said law, the penalties for unlawful possession of explosives are also lowered.
Specifically, when the illegally possessed explosives are used to commit any of
the crimes under the Revised Penal Code, which result in the death of a
person, the penalty is no longer death, unlike in P.D. No. 1866, but it shall be
considered only as an aggravating circumstance. Section 3 of P.D. No. 1866 as
amended by Section 2 of R.A. 8294 now reads:

‘Section 2. Section 3 of Presidential Decree No. 1866, as amended, is

hereby further amended to read as follows:

‘Section 3. Unlawful Manufacture, Sale, Acquisition, Disposition

or Possession of Explosives. The penalty of prision mayor in its
maximum period to reclusion temporal and a fine of not less than
Fifty thousand pesos (P50,000.00) shall be imposed upon any
person who shall unlawfully manufacture, assemble, deal in,
acquire, dispose or possess hand grenade(s), rifle grenade(s),
and other explosives, including but not limited to "pillbox,"
"molotov cocktail bombs," "fire bombs," or other incendiary
devices capable of producing destructive effect on contiguous
objects or causing injury or death to any person.

When a person commits any of the crimes defined in the Revised

Penal Code or special law with the use of the aforementioned
explosives, detonation agents or incendiary devises, which
results in the death of any person or persons, the use of such
explosives, detonation agents or incendiary devices shall be
considered as an aggravating circumstance.’ (shall be punished
with the penalty of death is DELETED.)

x x x x x x x x x.

With the removal of death as a penalty and the insertion of the term "xxx as
an aggravating circumstance," the unmistakable import is to downgrade the
penalty for illegal possession of explosives and consider its use merely as an
aggravating circumstance.

Clearly, Congress intended R.A. No. 8294 to reduce the penalty for illegal
possession of firearms and explosives. Also, Congress clearly intended RA No.
8294 to consider as aggravating circumstance, instead of a separate offense,

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 illegal possession of firearms and explosives when such possession is used to
commit other crimes under the Revised Penal Code.

It must be made clear, however, that RA No. 8294 did not amend the definition
of murder under Article 248, but merely made the use of explosives an
aggravating circumstance when resorted to in committing "any of the crimes
defined in the Revised Penal Code." The legislative purpose is to do away with
the use of explosives as a separate crime and to make such use merely an
aggravating circumstance in the commission of any crime already defined in
the Revised Penal Code. Thus, RA No. 8294 merely added the use of
unlicensed explosives as one of the aggravating circumstances specified in
Article 14 of the Revised Penal Code. Like the aggravating circumstance of
"explosion" in paragraph 12, "evident premeditation" in paragraph 13, or
"treachery" in paragraph 16 of Article 14, the new aggravating circumstance
added by RA No. 8294 does not change the definition of murder in Article
248.

On occasion of any of the calamities enumerated in the preceding paragraph,

or of an earthquake, eruption of a volcano, destructive cyclone, epidemic or
other public calamity

Unlike the preceding circumstance which the offender causes in order to kill their
victim, the means under the above circumstance are definitely not caused by the
offender. Rather, the offender commits the unlawful killing while any of the
foregoing calamities is present.

With evident premeditation

In People of the Philippines vs. Ordona, for evident premeditation to qualify the killing
of a person to the crime of murder, the following must be established by the
prosecution with equal certainty as the criminal act itself:

1. The time when the offender determined to commit the crime;

2. An act manifestly indicating that the offender clung to his determination; and
3. A sufficient interval of time between the determination and the execution of
the crime to allow him to reflect upon the. consequences of his act.

It is indispensable for the prosecution to establish "how and when the plan to kill
was hatched or how much time had elapsed before it was carried out." In People v.
Abadies, the Supreme Court underscored this requirement, thus:

“Evident premeditation must be based on external facts which are evident,

not merely suspected, which indicate deliberate planning. There must be
direct evidence showing a plan or preparation to kill, or proof that the
accused meditated and reflected upon his decision to kill the victim. Criminal
intent must be evidenced by notorious outward acts evidencing a
determination to commit the crime. In order to be considered an aggravation

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 of the offense, the circumstance must not merely be ‘premeditation’ but must
be "evident premeditation."

The date and, if possible, the time when the malefactor determined to commit the
crime is essential, because the lapse of time for the purpose of the third requisite is
computed from such date and time.

With cruelty, by deliberately and inhumanly

augmenting the suffering of the victim

The qualifying circumstance of cruelty requires that the offender must deliberately
and inhumanly augment, prolong or enhance the suffering of the victim before
killing them, unless it is that suffering that leads to the victim’s death.

In the old case of People of the Philippine Islands vs. Aguinaldo, the Supreme Court
stated:

“The Attorney-General holds that the number of wounds found upon the
corpse does not, by itself alone, justify the acceptance of the circumstance of
cruelty, it being necessary to show that he deliberately and inhumanly
increased the sufferings of the victim, and this has not been proved in the
present case.”

With an act of outraging or scoffing at the corpse of the victim

An act of “outraging or scoffing at the corpse of the victim” refers to a further act of
destroying the victim’s corpse after the killing.

In People of the Philippines vs. Stephen Mark Whisenhunt, the accused was charged
for murder following the death of one Elsa Castillo. In the criminal information it
was alleged:

“That on or about September 24, 1993, in the Municipality of San Juan, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused did then and there willfully, unlawfully and feloniously,
with intent to kill and taking advantage of superior strength, attack, assault
and use personal violence upon the person of one Elsa "Elsie" Santos Castillo
by then and there stabbing her with a bladed weapon in different parts of her
body, thereby inflicting upon her mortal wounds which were the direct and
immediate cause of her death and thereafter outraged or scoffed her corpse
by then and there chopping off her head and different parts of her body.”

In convicting the accused the Supreme Court ruled:

“However, the other circumstance of outraging and scoffing at the corpse of

the victim was correctly appreciated by the trial court. The mere decapitation
of the victim’s head constitutes outraging or scoffing at the corpse of the

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 victim, thus qualifying the killing to murder. In this case, accused-appellant
not only beheaded Elsa. He further cut up her body like pieces of meat. Then,
he strewed the dismembered parts of her body in a deserted road in the
countryside, leaving them to rot on the ground. The sight of Elsa’s severed
body parts on the ground, vividly depicted in the photographs offered in
evidence, is both revolting and horrifying. At the same time, the viewer cannot
help but feel utter pity for the sub-human manner of disposing of her remains.

In People v. Carmina, a case with strikingly similar facts, we ruled:

‘Even if treachery was not present in this case, the crime would still be
murder because of the dismemberment of the dead body. One of the
qualifying circumstances of murder under Article 248, par. 6, of the
Revised Penal Code is "outraging or scoffing at (the) person or corpse"
of the victim. There is no question that the corpse of Billy Agotano was
outraged when it was dismembered with the cutting off of the head and
limbs and the opening up of the body to remove the intestines, lungs
and liver. The killer scoffed at the dead when the intestines were
removed and hung around Victoriano’s neck as a necklace, and the
lungs and liver were facetiously described as "pulutan."’

Death or Physical Injuries inflicted

under Exceptional Circumstances

Article 247 of the Revised Penal Code states:

“Any legally married person who having surprised his spouse in the act of
committing sexual intercourse with another person, shall kill any of them or
both of them in the act or immediately thereafter, or shall inflict upon them
any serious physical injury, shall suffer the penalty of destierro.

If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.

These rules shall be applicable, under the same circumstances, to parents

with respect to their daughters under eighteen years of age, and their seducer,
while the daughters are living with their parents.

Any person who shall promote or facilitate the prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
spouse shall not be entitled to the benefits of this article.”

Before proceeding, the following must be understood:

1. There is no law that allows a person to kill another;

2. The law does not allow a spouse to kill the other even when caught in
flagrante delicto. There is also no law that allows a parent to kill a daughter
when caught in the same situation.

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Article 247 does not allow the killing of a spouse or daughter in the manner
described. This is so because Article 247 imposes the penalty of destierro in case
death or serious physical injuries is inflicted upon the spouse or daughter, which
means that a crime was committed and that destierro is the imposable penalty.
While the concept that the imposition of destierro is for the protection of the
offending spouse or parent to prevent acts of retaliation against the latter is legally-
sound, the concept does not deviate from the fact that it is still a penalty defined and
imposed by law for the act of killing another.

Article 247 only exempts the offender from punishment if less serious or slight
physical injuries were inflicted. But in this case, it must be recalled that Article 247
in relation to physical injuries is an exempting circumstance, which means that a
crime was committed and that the offender is only exempted from criminal liability
by reason of the peculiar circumstances of the case.

For Article 247 to apply, the following requisites must concur:

1. The spouses involved must be legally married to each other; or the parent and
daughter involved must have a legal parental relationship and that the
daughter must be a minor living with the parent.

For marriage to be legal under current law, the parties must be a biological
man and woman. They must be qualified to marry under law, and must have
the marriage ceremony solemnized by an authorized solemnizing officer.
Finally, the marriage must be registered with the Local Civil Registry of the
place where the marriage was celebrated, and subsequently recorded with
the Philippine Statistics Authority.

For there to be a legal parental relationship the parent and the daughter must
either be biologically-related whether the relationship is legitimate or
illegitimate, or possess legitimate parental relations through valid adoption.
Foster and step-parent relationships without the benefit of adoption are not
considered as legitimate parental relation.

The law limits the sex of the daughter to female, that is, sons are excluded
from coverage. The daughter must be a minor living with the parent, which is
interpreted to mean that the minor daughter is under parental support and
authority and has not been emancipated by attaining the age of majority.

2. The victim spouse or the daughter must have been caught in the act of having
sexual intercourse with another person, or must have been caught
immediately after having sexual intercourse with another.

The law requires that the offending spouse or parent must either catch their
spouse or minor daughter in the act of sexual intercourse with another
person, or immediately thereafter where the attending circumstances
obviously reveal that the spouse or the minor daughter had just had sexual
intercourse with another person.

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 In People of the Philippines vs. Bormeo, sexual intercourse, also known as
“carnal knowledge” is defined as the act of a man having sexual bodily
connections with a woman. An essential ingredient thereof is the penetration
of the female sexual organ by the sexual organ of the male. This concept was
retained even up to People of the Philippines vs. Bay-od, a January 2019 case.

By the concept of sexual intercourse, the law apparently requires the

copulating parties to be a biological male and female because of the essential
ingredient that the man’s penis must penetrate the woman’s vagina. Although
the law recognizes the concept of sexual intercourse being consummated by
mere skin contact between the glans of the penis and the labia, this concept is
limited to the purpose of determining and prosecuting crimes of rape. The
conventional definition of sexual intercourse remains.

This means that the sexual activity for the purpose of applying Article 247
does not include sexual acts between two men or two women although there
may be penetration. More so are sexual activities between a man or a woman
on one hand and an animal on the other because the law specifically mentions
that for there to be an exceptional circumstance, the offending spouse or
parent must catch their spouse or minor daughter “in the act of committing
sexual intercourse with another person.”

The conclusion is that if there is sexual activity except intercourse, Article 247
will not apply. In that same vein, if the sexual activity was between the
husband and a man, or a minor daughter and another female, Article 247
should not apply.

3. The offending spouse or parent must not have consented to the sexual act.

Where the offending spouse or parent consented to their spouse or minor

daughter having sexual intercourse with another person, or caused the
prostitution of their spouse or minor daughter will not be covered by Article
247.

Death Caused in a Tumultuous Affray

The concept of a “tumultuous affray” is that a group of people are engaged in a

violent fight, where the following requisites are present:

1. The persons are not composed of identifiable groups;

2. A person is killed;
3. It cannot be identified who killed the person.

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The idea is to punish those who most probably killed the victim, such that Articles
251 and 252 makes liable those persons who:

1. Inflicted serious physical injuries upon the person who died; or

2. Used any act of violence upon the person who died or suffered serious or less
serious physical injuries.

It does not appear from the law that there will be criminal liability for anyone who
used violence upon another resulting in slight physical injuries.

Giving Assistance to Suicide

Suicide is not a crime in the Philippines for two reasons, first, there is no law
defining suicide as a crime and punishing it; and second, public policy demands that
those persons who commit suicide or attempt to do so deserve compassion and
liberality, not judgment.

The law punishes those who assist others to commit suicide because in effect, those
who assist are considered accomplices or principals to homicide, as the case may be.

This is true because where a person assists another to commit suicide, the penalty is
prision mayor, which is the penalty next lower in degree than reclusion temporal.
But where the assistance is to the effect that the person assisting does the killing
himself, the penalty is reclusion temporal.

Recall that reclusion temporal is the penalty for homicide, while prision mayor is the
penalty imposed upon an accomplice to homicide.

The penalty of arresto mayor in its medium and maximum periods for cases of
assistance where the suicide was not consummated is not the same penalty for
attempted homicide (Prision correccional) or frustrated homicide (prision mayor).
The penalty is imposed to deter those from assisting a person from committing
homicide and in hopes of deterring the commission of suicide itself.

Suicide and Reckless Imprudence

Even if the law does not punish suicide, any and all consequences of the suicidal act
which causes damage to property or to persons will bring with it civil and criminal
liabilities.

The reason is because those who commit suicide must bear in mind the possible
damage the act will cause.

Suppose a person commits suicide by using a gun. Upon firing the gun the bullet
went through the person’s head and injured a person in an adjacent room. If the
person died, there is no criminal liability because first, suicide is not a crime and
second, death extinguishes criminal liability. Civil liability on the other hand arising
from the injury suffered by a person in an adjacent room will be claimed from the
person’s estate. But if the person committing suicide survived, they will be

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criminally liable for reckless imprudence resulting in physical injuries for the injury
suffered by the person in the adjacent room.

Although it is sound doctrine that those who commit acts not constituting crimes are
not liable for all the natural consequences of the act, the injury suffered by the
person in the adjacent room was caused not by the suicide itself, but by the
negligence of the person committing it.

Discharge of Firearms

To be liable for this felony the offender must discharge a firearm at another person,
without intending to hit or kill them.

This is because the discharge of a firearm at another person with the intention to
inure will be punished as serious, less serious or slight physical injuries. If the
discharge of the firearm is coupled with an intention to kill, the crime would be
homicide or murder, as the case may be, in the proper stage of execution.

Abortion

Abortion is the premature termination of pregnancy, resulting to the demise of the

unborn fetus.

Intentional Abortion is present when a person other than the pregnant woman:

1. Uses violence upon any pregnant woman to cause an abortion, with or

without her consent;

2. Causes an abortion upon a pregnant woman without her consent and without
using violence (as in the case where an abortive substance is used);

3. Causes an abortion upon a pregnant woman with her consent.

Any act of violence by any person upon a pregnant woman that unintentionally
causes an abortion shall be punished as unintentional abortion. But if the abortion is
performed by the pregnant woman herself, or allows another person to perform the
abortion, she will be criminally liable for the abortion.

Physicians and midwives are liable for the abortion if they perform it themselves or
assist in its commission. On the part of physicians, the prescription of abortive
substances where there is no need for it will cause them to be criminally liable.

Pharmacists who dispense abortive substances from a pharmacy without a requisite

prescription from a physician will also be criminally liable.

On the part of physicians, midwives and pharmacists, this is without prejudice to

their possible administrative liability as healthcare professionals.

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Duel

A duel has the following participants:

1. The duelists, who are those who fight each other in a duel; and

2. The seconds, who are persons chosen by the duelists whose duty was to
ensure that the duel was carried out under honorable conditions, on a proper
field of honor and with equally deadly weapons.

The law punishes the holding of duel itself, and cases where one of the duelists is
killed or suffers physical injuries. The seconds are punished as accomplices.

Challenging to a Duel

This is committed any person who shall challenge another, or incite another to give
or accept a challenge to a duel, or shall scoff at or decry another publicly for having
refused to accept a challenge to fight a duel.

Note that to be a “duel,” there must be an intention to mutually fight one another at a
specified time, date and place, with or without the use of weapons, which will result
to one of the duelists being killed.

The fact that the duel presupposes the death of one of the duelists is what makes the
act illegal, such that fighting matches in boxing, mixed martial arts and other full-
contact martial art events are excluded from the definition of duel (even if a
challenge to fight was given) because these events do not include an understanding
or an acceptance that the fight is a “fight to the death.”

Physical Injuries

The crime of physical injuries is present only where the offender inflicted them upon
the victim without having an intention to kill. This is because the infliction of
injuries coupled with an intention to kill is punished as attempted, frustrated or
consummated homicide, murder, parricide or infanticide, as the case may be.
Mutilation

Mutilation is the intentional deprivation of another person of a body part. Under

Article 262, the body part mutilated may be the penis (for which the penalty
imposable is reclusion temporal to reclusion perpetua) or any other body part, such
as an arm, a finger or an ear (for which the imposable penalty is prision mayor
medium to prision mayor maximum).

But to be punishable as mutilation, the cutting off or the removal of the body part
must be intentional, such that the use of a weapon or the manner of attack must be
done in such a way as to intentionally cut off that body part. If the mutilation was
unintentional, the crime committed may be serious physical injuries.
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Serious Physical Injuries

The physical injury is serious if the use of violence upon any person results to any of
the following:

1. The injured person shall become insane, imbecile, impotent, or blind;

2. The person injured shall have lost the use of speech or the power to hear or to
smell, or shall have lost an eye, a hand, a foot, an arm, or a leg or shall have
lost the use of any such member, or shall have become incapacitated for the
work in which he was therefor habitually engaged;

Compared to Mutilation: Mutilation is the intentional cutting, lopping or

removal or a body part. If there was violence intentionally used upon
the victim but without intentionally cutting or lopping off a body part,
but nevertheless the violence resulted to the loss of a body part, the
crime is serious physical injuries.

3. The person injured shall have become deformed, or shall have lost any other
part of his body, or shall have lost the use thereof, or shall have been ill or
incapacitated for the performance of the work in which he as habitually
engaged for a period of more than ninety days;

A permanent visible scar is considered a deformity, such that the offender is

liable for serious physical injury.

Incapacity for work under this paragraph refers to incapacity to perform the
usual and habitual work of the victim for a period of more than 90 days.

4. The person injured shall have suffered illness or incapacity for labor for more
than thirty days.

Incapacity for labor under this paragraph refers to incapacity to perform any
work for a period of more than 30 days.

Administering injurious substances or beverages upon another person, who may be

sober or of a weak mind or is credulous (believes things too easily) is punished as
serious physical injuries.

If the violent act is not among those enumerated above and causes incapacity for
labor or need for medical attention for at least ten (10) days but not more than
thirty (30) days, the crime is less serious physical injuries.

The infliction of any less serious physical injuries upon the offender's parents,
ascendants, guardians, curators, teachers, or persons of rank, or persons in
authority is a qualifying aggravating circumstance, and shall be punished by prision
correccional in its minimum and medium periods, provided that, in the case of

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persons in authority, the deed does not constitute the crime of direct or indirect
assault, as the case may be.

Paragraph 2 of Article 265 provides:

"Whenever less serious physical injuries shall have been inflicted with the
manifest intent to insult or offend the injured person, or under circumstances
adding ignominy to the offense, in addition to the penalty of arresto mayor, a
fine not exceeding Fifty thousand pesos (P50,000) shall be imposed.”

To be punished as less serious physical injuries, the injuries must not have been
inflicted to kill the victim. While there may be intent to kill, the physical injuries here
do not constitute the killing blow and may only be acts consistent with ignominy or
cruelty.

Physical injuries not falling under any of the above are treated as slight physical
injuries. They include the following:

1. In case of physical injuries which shall incapacitate the offended party for
labor from one to nine days, or shall require medical attendance during the
same period;

2. In case of physical injuries which do not prevent the offended party from
engaging in his habitual work nor require medical assistance;

3. By ill-treating another by deed without causing any injury.

Illustration: Jose had an altercation with Jacinto. Angered by Jose’s

words, Jacinto pushed Jose, causing the latter to stagger back a few
steps. Even if Jose did not suffer any injury, Jacinto is liable for slight
physical injury because he ill-treated Jose by deed.

Republic Act No. 8353

The Anti-Rape Law of 1997
As amended by R.A. 11648

The crime of rape was re-classified from a crime against chastity to a crime against
persons by Republic Act No. 8353. The relevant effects are:

1. Privacy of the crime – the crime of rape is no longer a private crime and
becomes a public one;

2. Complainants – no longer being a private crime, any person may initiate a

criminal complaint for the rape of a person.

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 3. With the enactment of R.A. 8353, two concepts of rape are now present:

a. rape by sexual intercourse; and

b. rape by sexual assault.

4. Republic Act No. 11648 amended R.A. 8353:

a. Rape is now a genderless crime. Rape by sexual intercourse may now

be committed against a woman against a man;

b. The age of sexual consent is now 16 years old. Carnal knowledge with a
person under 16 years of age is punished as statutory rape, subject to
the exempting circumstance of age gap of not more than 3 years, and
the sexual act being consensual, non-abusive, and non-exploitative.

Rape by Sexual Intercourse

Sexual intercourse, also known as carnal knowledge is the penetration of a man’s

penis into a woman’s vagina. By this classic definition in cases involving the act,
there must be an actual penetration of the penis for there to be actual intercourse.

For there to be rape by sexual intercourse the following requisites must be present:

1. The offender may be a man or a woman, provided that the victim is a person
of the opposite sex, biologically. This is because “carnal knowledge” has been
defined as the act of a man having sexual bodily connections with a woman;
sexual intercourse. An essential ingredient thereof is the penetration of the
female sexual organ by the sexual organ of the male.

2. The man or woman has carnal knowledge with another woman or man,
respectively;

3. The carnal knowledge was under any of the following circumstances:

a. By force, threat or intimidation.

“Force, as an element of rape, must be sufficient to consummate the

purposes which the accused had in mind. On the other hand,
intimidation must produce fear that if the victim does not yield to the
bestial demands of the accused, something would happen to her at that
moment or even thereafter as when she is threatened with death if she
reports the incident.”

b. When the offended party is deprived of reason or otherwise

unconscious.

In People of the Philippines vs. Caga, the Supreme Court expounded on

the lack of consent due to unconsciousness:

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 “This Court finds that Caga did have sexual intercourse with
‘AAA’ when she was asleep and still under the influence of
alcohol. The case thus falls under the second paragraph of rape:
‘when the offended party is deprived of reason or is otherwise
unconscious.’ It is altogether immaterial that the prosecution's
evidence failed to establish the presence of physical force, threat,
or intimidation because, as the evidence at bar shows, Caga
raped an unconscious and extremely intoxicated woman - a fact
that was duly alleged in the Information and duly established by
the prosecution's evidence during the trial. In the case at bench,
physical force, threat or intimidation is not necessary, for the
simple reason that an unconscious and extremely intoxicated
woman cannot freely and voluntarily give her consent to
engaging in sexual intercourse.”

But the mere withholding of consent may not be sufficient to prove

rape. The Supreme Court ruled in People vs. Amogis that “resistance
must be manifested and tenacious. A mere attempt to resist is not the
resistance required and expected of a woman defending her virtue,
honor and chastity. And granting that it was sufficient, "AAA" should
have done it earlier or the moment appellant's evil design became
manifest. In other words, it would be unfair to convict a man of rape
committed against a woman who, after giving him the impression thru
her unexplainable silence of her tacit consent and allowing him to have
sexual contact with her, changed her mind in the middle and charged
him with rape.”

Discussing again the lack of resistance, the Supreme Court declared in

People of the Philippines vs. Tionloc that in rape cases, the resistance of
the woman must be made before the rape is consummated. The Court
expounded:

“Three things are thus clear from the testimony of "AAA:" first,
appellant never employed the slightest force, threat or
intimidation against her; second, "AAA" never gave the slightest
hint of rejection when appellant asked her to have sex with him;
and, third, appellant did not act with force since he readily
desisted when "AAA" felt the slightest pain and tried to move
during their sexual congress.

"AAA" could have resisted right from the start. But she did not,
and chose not to utter a word or make any sign of rejection of
appellant's sexual advances. It was only in the middle of their
sexual congress when "AAA" tried to move which can hardly be
considered as an unequivocal manifestation of her refusal or
rejection of appellant's sexual advances.”

On Mental Retardation

The term "deprived of reason" has been construed to encompass those

suffering from mental abnormality, deficiency or retardation. Thus,

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 sexual intercourse with a person afflicted with mental retardation is
considered rape.

c. By means of fraudulent machination or grave abuse of authority.

The “fraudulent machination” contemplated here refers to an act to

deceive the victim, not merely to mislead. The victim may have given
consent but the consent was erroneously given due to the fraudulent
deception.

For there to be grave abuse of authority, the man must possess some
authority over the woman which he abuses in order to obtain the
woman’s consent or to coerce her to have sexual intercourse with him,
without or without her consent.

d. Where the victim is demented, even if there is no force, threat,

intimidation, fraudulent machination or grave abuse of authority.

Merriam-Webster defines “dementia” as “a usually progressive

condition (such as Alzheimer's disease) marked by the development of
multiple cognitive deficits (such as memory impairment, aphasia, and
the inability to plan and initiate complex behavior), also, madness or
insanity.”

Sexual intercourse with a demented or insane person is punished as

rape even if the victim gave consent. A characteristic of dementia is that
the afflicted person cannot give proper consent and as such, the sexual
intercourse lacks the proper consent of the victim.

Sexual Intercourse as a Central Factor in the first act of rape

For there to be rape by sexual intercourse, it is necessary that the offender must
have sexual intercourse with the offended party, where sexual intercourse normally
implies the penetration of the penis into the vagina.

However, for rape cases the Supreme Court discussed:

“In People v. De la Peña we clarified that the decisions finding a case for rape
even if the attacker's penis merely touched the external portions of the female
genitalia were made in the context of the presence or existence of an erect
penis capable of full penetration. Where the accused failed to achieve an
erection, had a limp or flaccid penis, or an oversized penis which could not fit
into the victim's vagina, the Court nonetheless held that rape was
consummated on the basis of the victim's testimony that the accused
repeatedly tried, but in vain, to insert his penis into her vagina and in all
likelihood reached the labia of her pudendum as the victim felt his organ on
the lips of her vulva, or that the penis of the accused touched the middle part
of her vagina. Thus, touching when applied to rape cases does not simply
mean mere epidermal contact, stroking or grazing of organs, a slight brush or

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a scrape of the penis on the external layer of the victim's vagina, or the mons
pubis, as in this case. There must be sufficient and convincing proof that the
penis indeed touched the labias or slid into the female organ, and not merely
stroked the external surface thereof, for an accused to be convicted of
consummated rape. As the labias, which are required to be "touched" by the
penis, are by their natural situs or location beneath the mons pubis or the
vaginal surface, to touch them with the penis is to attain some degree of
penetration beneath the surface, hence, the conclusion that touching the labia
majora or the labia minora of the pudendum constitutes consummated rape.

The pudendum or vulva is the collective term for the female genital organs
that are visible in the perineal area, e.g., mons pubis, labia majora, labia
minora, the hymen, the clitoris, the vaginal orifice, etc. The mons pubis is the
rounded eminence that becomes hairy after puberty, and is instantly visible
within the surface. The next layer is the labia majora or the outer lips of the
female organ composed of the outer convex surface and the inner surface. The
skin of the outer convex surface is covered with hair follicles and is
pigmented, while the inner surface is a thin skin which does not have any hair
but has many sebaceous glands. Directly beneath the labia majora is the labia
minora.

Jurisprudence dictates that the labia majora must be entered for rape to be
consummated, and not merely for the penis to stroke the surface of the female
organ. Thus, a grazing of the surface of the female organ or touching the mons
pubis of the pudendum is not sufficient to constitute consummated rape.
Absent any showing of the slightest penetration of the female organ, i.e.,
touching of either labia of the pudendum by the penis, there can be no
consummated rape; at most, it can only be attempted rape, if not acts of
lasciviousness.

Judicial depiction of consummated rape has not been confined to the oft-
quoted "touching of the female organ," but has also progressed into being
described as "the introduction of the male organ into the labia of the
pudendum," or "the bombardment of the drawbridge." But, to our mind, the
case at bar merely constitutes a "shelling of the castle of orgasmic potency," or
as earlier stated, a "strafing of the citadel of passion.”

In brief, the Supreme Court stated that sexual intercourse is consummated at

the moment the skin of the glans of the penis contacts the skin of the labia, at
least for rape cases. This was also the basis why the Supreme Court
obliterated the concept of frustrated rape from jurisprudence, which it did in
People of the Philippines vs. Orita:

“Clearly, in the crime of rape, from the moment the offender has carnal
knowledge of his victim he actually attains his purpose and, from that
moment also all the essential elements of the offense have been
accomplished. Nothing more is left to be done by the offender, because
he has performed the last act necessary to produce the crime. Thus, the
felony is consummated. In a long line of cases (People v. Oscar, 48 Phil.
527; People v. Hernandez, 49 Phil. 980; People v. Royeras, G.R. No. L-
31886, April 29, 1974, 56 SCRA 666; People v. Amores, G.R. No. L-32996,

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 August 21, 1974, 58 SCRA 505), We have set the uniform rule that for the
consummation of rape, perfect penetration is not essential. Any
penetration of the female organ by the male organ is sufficient. Entry of
the labia or lips of the female organ, without rupture of the hymen or
laceration of the vagina is sufficient to warrant conviction. Necessarily,
rape is attempted if there is no penetration of the female organ (People
v. Tayaba, 62 Phil. 559 People v. Rabadan et al., 53 Phil. 694; United
States v. Garcia: 9 Phil. 434) because not all acts of execution was
performed. The offender merely commenced the commission of a
felony directly by overt acts. Taking into account the nature, elements
and manner of execution of the crime of rape and jurisprudence on the
matter, it is hardly conceivable how the frustrated stage in rape can
ever be committed.

Of course, We are aware of our earlier pronouncement in the case of

People v. Eriña 50 Phil. 998 [1927] where We found the offender guilty
of frustrated rape there being no conclusive evidence of penetration of
the genital organ of the offended party. However, it appears that this is
a "stray" decision inasmuch as it has not been reiterated in Our
subsequent decisions. Likewise, We are aware of Article 335 of the
Revised Penal Code, as amended by Republic Act No. 2632 (dated
September 12, 1960) and Republic Act No. 4111 (dated March 29,
1965) which provides, in its penultimate paragraph, for the penalty of
death when the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof. We are of the opinion
that this particular provision on frustrated rape is a dead provision.
The Eriñ a case, supra, might have prompted the law -making body to
include the crime of frustrated rape in the amendments introduced by
said laws.”

In re: People of the Philippines vs Efren Agao

G.R. No. 248049, October 4, 2022

In 2014, Agao was charged with two counts of Statutory Rape of minor AAA, the
daughter of Agao’s live-in partner, BBB. Agao was convicted by Branch 172,
Valenzuela City RTC, which ruled that while Agao’s penis only merely touched
the labia of AAA, the crime of rape was nevertheless consummated following the
2014 case of People v. Besmonte, which held that carnal knowledge, as an element of
rape, does not require full penetration of the female organ.

The Court proceeded to a brief descriptive discussion, with illustrations, of the parts
of the external female genitalia, including “a clear indication of the situs of the
pertinent parts, in order to categorically delineate for the bench and the bar which
physical threshold, when crossed, constitutes rape in the consummated stage.

The Court then concluded that “mere introduction, however slight, into the cleft of
the labia majora by a penis that is capable of penetration, regardless of whether such
penile penetration is thereafter fully achieved, consummates the crime of rape.

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The Supreme Court convicted Agao for one count of statutory rape (10 y.o.) and one
count of simple rape (13 y.o.).

Reconciling the diverging rulings in existing jurisprudence, the Court clarified that
“mere touch” of the penis on the labia majora legally contemplates not mere surface
touch or skin contact, but the slightest penetration of the vulval or pudendal cleft,
however minimum in degree.

The Court stressed that such clarification is necessary, as otherwise any nature and
degree of touch of a penis of the female genitalia can be considered consummated
rape, effectively resulting in all sexual assaults involving a penis and the vulva to
only either be acts of lasciviousness or consummated rape, with no gradation of the
attempted stage in between.

The Court also took the opportunity to further clarify the stages of commission of
rape for pre-puberty victims.

The Court held that “for child victims in the pre-puberty age, the genital contact
threshold for a finding of consummated rape through penile penetration is deemed
already met once the entirety of the prosecution evidence establishes a clear
physical indication of the inevitability of the minimum genital contact threshold as
clarified here, if it were not for the physical immaturity and underdevelopment of
the minor victim’s vagina, which may include repeated touching of the accused’s
erect penis on the minor victim’s vagina and other indicative acts of penetration.”

Noting the peculiar nature of testimonies of child-rape-victims, and taking into

consideration their inherent linguistic limitations, the Supreme Court also enjoined
courts to exercise circumspection in their appreciation of testimonies of child
victims in rape cases, noting that the following can aid the courts in their
determination of the existence of penile penetration: (i) when the victim testifies
she felt pain in her genitals; (ii) when there is bleeding in the same; (iii) when
the labia minora was observed to be gaping or has redness, or otherwise discolored;
(iv) when the hymenal tags are no longer visible; or (v) when the sex organ of the
victim has sustained any other type of injury.

“Once the testimony of the victim and/or the above attendance circumstances reveal
that the threshold genital contact occurred, the courts have sufficient basis to find
for consummation,” the High Court held.

Finally, the Court held that set threshold of genital contact may also be applied by
analogy to acts of rape by sexual assault under Article 266-A paragraph 2, of
the Revised Penal Code, such that “a finding that the accused has penetrated the
vulval cleft of the victim through the use of any instrument or object warrants a
factual finding of consummated rape by sexual assault.”

Rape by Sexual Assault

R.A. 8353 introduced sexual assault as a mode of committing rape. By “sexual

assault,” the offender rapes the victim through the same circumstances as rape by
sexual intercourse, and:

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 1. By a man inserting his penis into another person's mouth or anal orifice,
whether that person be a man or a woman.

2. By a man or a woman who inserts any instrument or object, into the genital or
anal orifice of another person. The phrase, “instrument or object” may refer to
an inanimate thing or object, or any part of the offender’ body excluding the
penis.

From the foregoing the following matters are clear: first, there is no sexual
intercourse; second, the offender may be a man or a woman; and third, the offended
party may be a man or a woman.

Marital Rape

Rape may be committed by a spouse against the other spouse, since the elemental
basis of rape is the lack of consent. Husbands do not have property rights over their
wives' bodies, nor does the wife have a property right over her husband’s. Sexual
intercourse, albeit within the realm of marriage, if not consensual, is rape.

In People of the Philippines vs. Jumawan the Supreme Court acknowledged that:

“x x x rape, as a form of sexual violence, exists within marriage. A man who

penetrates his wife without her consent or against her will commits sexual
violence upon her, and the Philippines, as a State Party to the Convention on
the Elimination of All Forms of Discrimination against Women and its
accompanying Declaration, defines and penalizes the act as rape under R.A.
No. 8353.

A woman is no longer the chattel-antiquated practices labeled her to be. A husband

who has sexual intercourse with his wife is not merely using a property, he is
fulfilling a marital consortium with a fellow human being with dignity equal to that
he accords himself. He cannot be permitted to violate this dignity by coercing her to
engage in a sexual act without her full and free consent. Surely, the Philippines
cannot renege on its international commitments and accommodate conservative yet
irrational notions on marital activities that have lost their relevance in a progressive
society.

It is true that the Family Code, obligates the spouses to love one another but this rule
sanctions affection and sexual intimacy, as expressions of love, that are both
spontaneous and mutual and not the kind which is unilaterally exacted by force or
coercion.

Further, the delicate and reverent nature of sexual intimacy between a husband and
wife excludes cruelty and coercion. Sexual intimacy brings spouses wholeness and
oneness. It is a gift and a participation in the mystery of creation. It is a deep sense of
spiritual communion. It is a function which enlivens the hope of procreation and
ensures the continuation of family relations. It is an expressive interest in each
other's feelings at a time it is needed by the other and it can go a long way in

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deepening marital relationship. When it is egoistically utilized to despoil marital
union in order to advance a felonious urge for coitus by force, violence or
intimidation, the Court will step in to protect its lofty purpose, vindicate justice and
protect our laws and State policies. Besides, a husband who feels aggrieved by his
indifferent or uninterested wife's absolute refusal to engage in sexual intimacy may
legally seek the court's intervention to declare her psychologically incapacitated to
fulfill an essential marital obligation. But he cannot and should not demand sexual
intimacy from her coercively or violently.

Moreover, to treat marital rape cases differently from non-marital rape cases in
terms of the elements that constitute the crime and in the rules for their proof,
infringes on the equal protection clause. The Constitutional right to equal protection
of the laws ordains that similar subjects should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others; no person or
class of persons shall be denied the same protection of laws, which is enjoyed, by
other persons or other classes in like circumstances.”

Statutory Rape

R.A. 8353 as amended by R.A. 11648 punishes statutory rape, which it defines as
sexual intercourse with a person who is under sixteen (16) years old. This definition
brings about the following conclusions:

1. The age of sexual consent in the Philippines is SIXTEEN (16) YEARS; and
2. Consent of the offended party is immaterial.

In statutory rape, mere sexual congress with a person below 16 years of age
consummates the crime of statutory rape regardless of their consent to the act or
lack of it. The law presumes that a person of tender age does not possess
discernment and is incapable of giving intelligent consent to the sexual act. Thus, it
was held that carnal knowledge of a child below 16 years old even if they are
engaged in prostitution is still considered statutory rape. The application of force
and intimidation or the deprivation of reason of the victim becomes irrelevant. The
absence of struggle or outcry of the victim or even her passive submission to the
sexual act will not mitigate nor absolve the accused from liability. (People of the
Philippines vs. Romeo G. Jalosjos)

In the Jalosjos case the Supreme Court declared: “In the case at bar, the prosecution
established beyond reasonable doubt that accused-appellant had carnal knowledge
of Rosilyn. Moreover, the prosecution successfully proved that Rosilyn was only
eleven years of age at the time she was sexually abused. As such, the absence of
proof of any struggle, or for that matter of consent or passive submission to the
sexual advances of accused-appellant, was of no moment. The fact that accused-
appellant had sexual congress with eleven year-old Rosilyn is sufficient to hold him
liable for statutory rape, and sentenced to suffer the penalty of reclusion perpetua.”

Exempting Circumstance

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There shall be no criminal liability on the part of a person having carnal knowledge
of another person under sixteen (16) years of age when the age difference between
the parties is not more than three (3) years, and the sexual act in question is proven
to be consensual, non-abusive, and non-exploitative: Provided, further, That if the
victim is under thirteen (13) years of age, this exception shall not apply.

As used in this Act, non-abusive shall mean the absence of undue influence,
intimidation, fraudulent machinations, coercion, threat, physical, sexual,
psychological, or mental injury or maltreatment, either with intention or through
neglect, during the conduct of sexual activities with the child victim. On the other
hand, non-exploitative shall mean there is no actual or attempted act or acts of
unfairly taking advantage of the child's position of vulnerability, differential power,
or trust during the conduct of sexual activities."

On Biological Age and Mental Age

“Biological age” refers to a person’s age determined from the date of birth. The
“mental age” on the other hand refers to a person’s mental capacity and the usual
biological age that mental capacity may be equivalent to. From that, a person may
have a mental age lower than their biological age, and who may be considered a
mental retardate.

In People of the Philippines vs. Dalan, the Supreme Court held that the term
“statutory rape” should only be confined to situations where the victim of rape is a
person less than 12 years of age. If the victim of rape is a person with mental
abnormality, deficiency, or retardation, the crime committed is simple rape under
Article 266-A, paragraph (1)(b) as she is considered "deprived of reason"
notwithstanding that her mental age is equivalent to that of a person under 12. In
short, carnal knowledge with a mental retardate whose mental age is that of a
person below 12 years, while akin to statutory rape under Article 266-A, paragraph
1(d), should still be designated as simple rape under paragraph 1(b). At any rate,
proof of force, threat or intimidation is dispensed with in both statutory rape and
rape with a person who is deprived of reason.

REPUBLIC ACT No. 9208

The Anti-Trafficking in Persons Act of 2003
as amended by R.A. 10364 (February 6, 2013)
and further amended by R.A. 11862 (June 23, 2022)

Article 202 of the Revised Penal Code defines and punishes vagrancy as a
crime. However under Republic Act No. 10158, vagrancy was decriminalized,

112
resulting to the rendition of Article 202 (and all other laws referring to vagrancy as a
crime) without any force and effect. However, the portion of Article 202 that defined
prostitution and provided a penalty therefor remained.

While Article 202 also defines and punishes prostitution as a crime, the enactment
of Republic Act No. 9208 had the following effects:

1. Persons engaged in prostitution are no longer referred to as “prostitutes;”

they are now referred to as “trafficked persons;”

2. Trafficked persons under Republic Act No. 9208 are not treated as offenders
as a general rule. The law grants them protection from trafficking and gives
them the recognition as victims of trafficking. But while Article 202 still
penalizes prostitution, persons engaged therein and who are considered to be
trafficked persons are granted protection by law.

Section 17 of R.A. 9208 is instrumental:

“Section 17. Legal Protection to Trafficked Persons. - Trafficked persons

shall be recognized as victims of the act or acts of trafficking and as
such shall not be penalized for crimes directly related to the acts of
trafficking enumerated in this Act or in obedience to the order made by
the trafficker in relation thereto. In this regard, the consent of a
trafficked person to the intended exploitation set forth in this Act shall
be irrelevant.”

On the other hand, persons who willfully engage in prostitution by themselves

or as a group, without being considered to be trafficked persons may be
prosecuted for prostitution under Article 202.

3. Trafficking in persons is recognized as a transnational organized crime, which

means that the trafficking of persons is a crime committed by organized
groups across national borders;

4. Recognition of other forms of trafficking in persons; sex trafficking being only

one of several forms;

5. The consent of the trafficked person to engage in any act considered

trafficking is irrelevant, as also stated in Section 17.

Trafficking in Persons, defined:

Trafficking in persons refers to the recruitment, obtaining, hiring, providing,

offering, transportation, transfer, maintaining, harboring, or receipt of persons with
or without the victim’s consent or knowledge, within or across national borders by
means of threat, or use of force, or other forms of coercion, abduction, fraud,
deception, abuse of poser or of position, taking advantage of the vulnerability of the

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person or, the giving or receiving of payments or benefits to achieve the consent of a
person having control over another person, for the purpose of exploitation which
includes at a minimum, the exploitation or the prostitution of others or the
engagement of others for the production or distribution, or both of materials that
depict child sexual abuse or exploitation, or other forms of sexual exploitation,
forced labor or services, slavery, servitude, or the removal or sale of organs.

The recruitment, transportation, transfer, harboring, adoption or receipt of a child

for the purpose of exploitation or when the adoption is induced by any form of
consideration for exploitative purposes, shall also be considered as “trafficking in
persons” even if it does not involve any of the means set forth in the previous
paragraph.

Prohibited Acts

1. Acts of Trafficking in Persons – committed by any person, natural or

juridical, by means of threat, force, or other forms of coercion, or though
abduction, fraud, deception, abuse of power or of position, or through taking
advantage of the vulnerability of the person or by giving or receiving of
payment of benefit to obtain the consent of a person having control over
another person, by any of the following acts:

a. To recruit, obtain, hire, provide, offer, transport, transfer, maintain,

harbor, or receive a person by any means, including those done under
the pretext of domestic or overseas employment or training or
apprenticeship, for the purpose of prostitution, pornography, sexual
abuse or exploitation, production, creation, or distribution of CSAEM
(Child Sexual Abuse and Exploitation Material) or CSAM (Child Sexual
Abuse Material), forced labor, slavery, involuntary servitude, or debt
bondage;

b. To introduce or match for money, profit, or material, economic or other

consideration, any person or, as provided for under R.A. 10906 (Anti-
Mail Order Spouse Act), any Filipino to a foreign national, for marriage
for the purpose of acquiring, buying, offering, selling or trading
him/her to engage in prostitution, pornography, sexual exploitation,
forced labor, slavery, involuntary servitude or debt bondage;

c. To offer or contract marriage, real or simulated, for the purpose of

acquiring, buying, offering, selling, or trading them to engage in
prostitution, pornography, sexual exploitation, forced labor or slavery,
involuntary servitude or debt bondage;

d. To undertake or organize tours and travel plans consisting of tourism

packages or activities for the purpose of utilizing and offering persons
for prostitution, pornography or sexual exploitation;

e. To maintain or hire a person to engage in prostitution or pornography;

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f. To adopt persons by any form of consideration for exploitative
purposes or to facilitate the same for purposes of prostitution,
pornography, sexual exploitation, forced labor, slavery, involuntary
servitude or debt bondage;

g. To adopt or facilitate the adoption of persons with or without

consideration for the purpose of prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt
bondage, or to facilitate illegal child adoptions or child-laundering, or
for other exploitative purposes;

h. To recruit, hire, adopt, transport, transfer, obtain, harbor, maintain,

provide, offer, receive or abduct a person, for the purpose of removal or
sale of organs of said person;

i. To recruit, transport, obtain, transfer, harbor, maintain, offer, hire,

provide receive, or adopt a child to engage in armed activities or
participate in activities in the context of an armed conflict in the
Philippines or abroad;

j. To recruit, transport, transfer, harbor, obtain, maintain, offer, hire,

provide, or receive a person by means defined in Section 3 for purposes
of forced labor, slavery, debt bondage, and involuntary servitude,
including a scheme, plan or patters intended to cause a person either:

i. To believe that if the person did not perform such labor or

services, he or she or another person would suffer serious harm
or physical restraint; or

ii. To abuse or threaten the use of law or the legal processes.

k. To recruit, transport, harbor, obtain, transfer, maintain, hire, offer,

provide, adopt, or receive a child for purposes of exploitation or trading
them, including the act of buying or selling a child, or both for any
consideration or for barter for purposes of exploitation. Trafficking for
purposes of exploitation of children shall include:

i. All forms of slavery and practices similar to slavery, involuntary

servitude, debt bondage, and forced labor, including recruitment
of children for use in armed conflict;

ii. The use, procuring, or offering of a child for prostitution, for the
production of CSAEM or CSAM, or for pornographic
performances;

iii. The use, procuring, or offering of a child for the production and
trafficking of drugs; and

iv. The use, procuring or offering of a child for illegal activities or

work which, by its nature or the circumstances in which it is
carried out is likely to harm their health, safety, or morals;

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 l. To organize, provide financial support, or direct other persons to
commit the offenses defined as acts of trafficking; and

m. To recruit, transport, obtain, transfer, harbor, maintain, offer, hire,

provide, receive, or adopt a child for deployment abroad as a migrant
worker.

Provided, that when the victim is a child, the means to commit the
above unlawful acts enumerated in the first paragraph shall not be
necessary, provided further, that in the case of overseas domestic work,
a “child” means a person below 24 years old.

2. Acts that Promote Trafficking in Persons – The following are unlawful:

a. Knowingly lease or sublease, use, or allow to be used any house,

building, tourism enterprise, or any similar establishment, or any
vehicle or carrier by land, sea, and air, or any of their computer-system
or computer hardware, other computer-related devices or any of their
digital platform and application, for the purpose of promoting
trafficking in persons;

b. To produce, print and issue, or distribute unissued, tampered, or fake

passports, birth certificates, affidavits or delayed registration of births,
foundling, certificates, travel clearances, counseling certificates,
registration stickers, overseas employment certificates or other
certificates of any government agency which issues these certificates,
decals, and such other markers as proof of compliance with
government regularity and pre-departure requirements for the
purpose of promoting trafficking in persons;

c. To advertise, publish, print, broadcast or distribute, or cause the

advertisement, publication, printing, broadcasting or distribution by
any means, including the use of information technology and the
internet, of any brochure, flyer, or any propaganda material that
promotes trafficking in persons;

d. To assist in the conduct of misrepresentation or fraud for purposes of

facilitating the acquisition of clearances and necessary exit documents
from government agencies that are mandated to provide pre-departure
registration and services for departing persons for the purpose of
promoting trafficking in persons;

e. To facilitate, assist, or help in the exit and entry of persons from/to the
country at international and local airports, territorial boundaries and
seaports, knowing they are not in possession of required travel
documents, or are in possession of tampered, fake, or fraudulently
acquired travel documents, for the purpose of promoting trafficking in
persons;

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f. To confiscate, conceal, or destroy the passport, travel documents, or
personal documents or belongings of trafficked persons in furtherance
of trafficking or to prevent them from leaving the country or seeking
redress from the government or appropriate agencies;

g. To knowingly benefit from, financial or otherwise, or make use of, the

labor or services of a person held to a condition of involuntary
servitude, forced labor, or slavery;

h. To tamper with, destroy, or cause the destruction of evidence, or to

influence or attempt to influence witnesses, in an investigation or
prosecution of a case under this Act;

i. To destroy, conceal, remove, confiscate or possess, or attempt to

destroy, conceal, remove, confiscate or possess, any actual or purported
passport or other travel, immigration or working permit or document,
or any other actual or purported government identification, of any
person in order to prevent or restrict, or attempt to prevent or restrict,
without lawful authority, the person’s liberty to move or travel in order
to maintain the labor or services of that person;

j. To utilize his or her office to impede the investigation, prosecution or

execution of lawful orders in a case under this Act;

k. For internet intermediaries to knowingly or by gross negligence allow

their internet infrastructure to be used for the purpose of promoting
trafficking in persons;

l. For internet cafes, kiosks, and hotspots, including establishments

offering Wi-Fi access services to the public, to knowingly or by gross
negligence allow their facilities to be used for the purpose of promoting
trafficking in persons;

m. For financial intermediaries, including banks and credit card

companies and money transfer or remittance centers, to knowingly or
by gross negligence allow their services, online platform and
applications, among others, to be used for the purpose of promoting
trafficking in persons;

n. To knowingly, or by gross negligence, facilitate, assist, or help in the

entry in the country of persons who are convicted sex offenders
whether at international and local airports, territorial boundaries and
seaports for the purpose of promoting trafficking in persons;

o. To arrange, facilitate, expedite, or cause the introduction or encounter

of persons who are suspected or convicted sex offenders in any
jurisdiction, to a child. The actual introduction or encounter need not
occur to be liable under this provision. It is enough that there is
deliberate attempt to cause the introduction or encounter.

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3. Qualified Trafficking in Persons – The following are qualifying aggravating
circumstances for the acts of trafficking:

a. When the trafficked person is a child;

b. When the adoption is effected through Republic Act No. 8043,

otherwise known as the "Inter-Country Adoption Act of 1995" and said
adoption is for the purpose of prostitution, pornography, sexual
exploitation, forced labor, slavery, involuntary servitude or debt
bondage;

c. When the crime is committed by a syndicate, or in large scale.

Trafficking is deemed committed by a syndicate if carried out by a
group of three (3) or more persons conspiring or confederating with
one another. It is deemed committed in large scale if committed against
three (3) or more persons, individually or as a group;

R.A. 9208 introduces “syndicated trafficking in persons” and

“trafficking in persons in large scale.”

If both circumstances are present, the crime may be denominated as

“syndicated trafficking in persons in large scale.”

d. When the offender is a spouse, an ascendant, parent, sibling, guardian

or a person who exercises authority over the trafficked person or when
the offense is committed by a public officer or employee;

e. When the trafficked person is recruited to engage in prostitution with

any member of the military or law enforcement agencies;

f. When the offender is a member of the military or law enforcement

agencies;

g. When by reason or on occasion of the act of trafficking in persons, the

offended party dies, becomes insane, suffers mutilation or is afflicted
with Human Immunodeficiency Virus (HIV) or the Acquired Immune
Deficiency Syndrome (AIDS);

h. When the offender commits one or more acts of trafficking under

Section 4 over a period of at least 60 days, whether those days are
continuous or not;

i. When the offender, or through another, directs or manages the actions

of a victim in carrying out the exploitative purpose of trafficking;

j. When the crime is committed during a crisis, disaster, public health

concern, pandemic, a humanitarian conflict, or emergency situation, or
when the trafficked person is a survivor of a disaster or a human-
induced conflict;

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 k. When the trafficked person belongs to an indigenous community or
religious minority and is considered a member of the same;

l. When the trafficked person is a person with disability (PWD);

m. When the crime has resulted in pregnancy;

n. When the trafficked person suffered mental or emotional disorder as a

result of being victim of trafficking; or

o. When the act is committed by or through the use of information

communication technology (ICT) or any computer system.

REPUBLIC ACT NO. 9262

THE ANTI-VIOLENCE AGAINST WOMEN AND THEIR CHILDREN ACT

“Violence against women and their children” refers to any act or a series of acts
committed by any person against a woman who is his wife, former wife, or against
a woman with whom the person has or had a sexual or dating relationship, or with
whom he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is likely to result
in physical, sexual, psychological harm or suffering, or economic abuse including
threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation
of liberty.

Acts of Violence:

“Physical Violence,” which refers to acts that include bodily or physical harm;

“Sexual violence” which refers to an act which is sexual in nature, committed

against a woman or her child;

“Psychological violence,” which refers to acts or omissions causing or likely to

cause mental or emotional suffering of the victim; and

“Economic abuse,” which refers to acts that make or attempt to make a woman
financially dependent upon the offender.

Notes:

1. RA 9262 is a law granting special protection to women and their children

from acts of violence committed by any person, male or female;

2. Requirement of a married, dating, or sexual relationship, or where there is a

common child whether legitimate or otherwise; covers previous married,
dating, or sexual relationships;

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3. Applies even if the relationship between the offender and the offended party
is immoral or extramarital, or otherwise improper;

4. Applies in lesbian relationships and LGBTQIA+ relationships for as long as

the victim is a biological female;

5. Battered Woman Syndrome as a justifying circumstance, in re: People of the

Philippines vs. Marivic Genosa: Victim-survivors who are found by the courts
to be suffering from battered woman syndrome do not incur any criminal
and civil liability notwithstanding the absence of any of the elements for
justifying circumstances of self-defense under the Revised Penal Code. (Sec.
26)

6. In the determination of the state of mind of the woman who was suffering
from battered woman syndrome at the time of the commission of the crime,
the courts shall be assisted by expert psychiatrists/ psychologists.

7. XXX vs. People of the Philippines, G.R. No. 250219, March 1, 2023 – Marital
infidelity is psychological abuse under R.A. 9262, if:

a. The offended party is a woman and/or her child or children;

b. The woman is either the wife or former wife of the offender;
c. The offender causes on the woman and/or child mental or
emotional anguish; and
d. The anguish is caused through acts of public ridicule or
humiliation, repeated verbal and emotional abuse, denial of
financial support or custody of minor children or access to the
children or similar to such acts or omissions;

8. XXX vs. People of the Philippines, G.R. No. 255877, March 29, 2023 - the mere
failure of a husband to provide financial support does not automatically make
him criminally liable under Republic Act 9262 or the Anti-Violence Against
Women and Their Children Act. In People vs. Acharon (G.R. No. 224946,
November 9, 2021), the Supreme Court clarified that the commission of this
crime through denial of financial support is mala in se and thus requires the
presence of criminal intent. The mere failure to provide financial support is
insufficient to support a conviction. It must be proven that the accused
willfully and consciously denied financial support legally due to the woman
inflicting mental or emotional anguish upon her.

“The obligation to provide support is imposed by the law mutually

upon both spouses. The obligation is not a one-way street for the
husband to support his wife. The wife has the identical obligation to
provide support to her husband. The law certainly did not intend to
impose a heavier burden on the husband to provide support for his
wife, or institutionalize criminal prosecution as a measure to enforce
support from him. Although RA 9262 was enacted to protect women, it
did not intend to limit or discount their capacity to provide for and
support themselves. The law cannot presume that women are weak
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 and disadvantaged victims. The wife was a person fully capable of
providing for herself. She was gainfully employed as a massage
therapist and owner of a sari-sari (retail) store. She was not a destitute
victim who had no choice but to depend on her husband's money to
live. It would be gravely erroneous to interpret and apply the law in a
manner that will perpetuate gender disparities that should not exist."

Protection Orders

A protection order is an order issued for the purpose of preventing further acts of
violence against a woman or her child specified in Section 5 of this Act and granting
other necessary relief. The relief granted under a protection order serve the purpose
of safeguarding the victim from further harm, minimizing any disruption in the
victim's daily life, and facilitating the opportunity and ability of the victim to
independently regain control over her life. The provisions of the protection order
shall be enforced by law enforcement agencies. The protection orders that may be
issued under this Act are the barangay protection order (BPO), temporary
protection order (TPO) and permanent protection order (PPO). The protection
orders that may be issued under this Act shall include any, some or all of the
following reliefs:

1. Prohibition of the respondent from threatening to commit or committing,

personally or through another, any of the acts mentioned in Section 5 of this
Act;

2. Prohibition of the respondent from harassing, annoying, telephoning,

contacting or otherwise communicating with the petitioner, directly or
indirectly;

3. Removal and exclusion of the respondent from the residence of the petitioner,
regardless of ownership of the residence, either temporarily for the purpose
of protecting the petitioner, or permanently where no property rights are
violated, and if respondent must remove personal effects from the residence,
the court shall direct a law enforcement agent to accompany the respondent
has gathered his things and escort respondent from the residence;

4. Directing the respondent to stay away from petitioner and designated family
or household member at a distance specified by the court, and to stay away
from the residence, school, place of employment, or any specified place
frequented by the petitioner and any designated family or household
member;

5. Directing lawful possession and use by petitioner of an automobile and other

essential personal effect, regardless of ownership, and directing the
appropriate law enforcement officer to accompany the petitioner to the
residence of the parties to ensure that the petitioner is safely restored to the
possession of the automobile and other essential personal effects, or to
supervise the petitioner's or respondent's removal of personal belongings;

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6. Granting a temporary or permanent custody of a child/children to the
petitioner;

7. Directing the respondent to provide support to the woman and/or her child if
entitled to legal support. Notwithstanding other laws to the contrary, the
court shall order an appropriate percentage of the income or salary of the
respondent to be withheld regularly by the respondent's employer for the
same to be automatically remitted directly to the woman. Failure to remit
and/or withhold or any delay in the remittance of support to the woman
and/or her child without justifiable cause shall render the respondent or his
employer liable for indirect contempt of court;

8. Prohibition of the respondent from any use or possession of any firearm or

deadly weapon and order him to surrender the same to the court for
appropriate disposition by the court, including revocation of license and
disqualification to apply for any license to use or possess a firearm. If the
offender is a law enforcement agent, the court shall order the offender to
surrender his firearm and shall direct the appropriate authority to investigate
on the offender and take appropriate action on matter;

9. Restitution for actual damages caused by the violence inflicted, including, but
not limited to, property damage, medical expenses, childcare expenses and
loss of income;

10.Directing the DSWD or any appropriate agency to provide petitioner may

need; and

11.Provision of such other forms of relief as the court deems necessary to protect
and provide for the safety of the petitioner and any designated family or
household member, provided petitioner and any designated family or
household member consents to such relief.

Any of the reliefs provided under this section shall be granted even in the
absence of a decree of legal separation or annulment or declaration of absolute
nullity of marriage.

The issuance of a BPO or the pendency of an application for BPO shall not
preclude a petitioner from applying for, or the court from granting a TPO or
PPO.

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REPUBLIC ACT NO. 7610
Special Protection of Children
Against Abuse, Exploitation and Discrimination Act

R.A. 7610 was enacted to provide a greater degree of protection in favor of children,
in recognition of the vulnerability of children to acts of abuse to the detriment of
their development and welfare and in consideration of the obligations of the
Philippine government as a party to various international laws on the protection of
children.

For this purpose, a “child” refers to person below eighteen (18) years of age or those
over but are unable to fully take care of themselves or protect themselves from
abuse, neglect, cruelty, exploitation or discrimination because of a physical or
mental disability or condition.

Child Abuse

Child abuse is any act of maltreatment directed against a child as defined by R.A.
7610. These include but are not limited to the following:

1. Psychological and physical abuse, neglect, cruelty, sexual abuse and emotional
maltreatment;

2. Any act by deeds or words which debases, degrades or demeans the intrinsic
worth and dignity of a child as a human being;

3. Unreasonable deprivation of his basic needs for survival, such as food and
shelter; or

4. Failure to immediately give medical treatment to an injured child resulting in

serious impairment of his growth and development or in his permanent
incapacity or death.

To be punishable, the prohibited acts under R.A. 7610 must constitute any of the acts
of abuse enumerated above, or must otherwise constitute an act prejudicial to the
development and welfare of the child.

Prohibited Acts

1. Child Prostitution - Children, whether male or female, who for money, profit,
or any other consideration indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution.

Any person who shall engage in or promote, facilitate or induce child

prostitution through the following acts are guilty of child prostitution:

a. Acting as a procurer of a child prostitute (a “pimp,” as described in

Republic Act No. 9208 – the Anti-Trafficking in Persons Act);

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 b. Inducing a person to be a client of a child prostitute by means of
written or oral advertisements or other similar means;

c. Taking advantage of influence or relationship to procure a child as

prostitute;

d. Threatening or using violence towards a child to engage him as a

prostitute;

e. Giving monetary consideration goods or other pecuniary benefit to a

child with intent to engage such child in prostitution;

f. Engaging in sexual intercourse or other lascivious conduct with a child

exploited in prostitution; or

g. Deriving profit or advantage from an act of child prostitution.

An attempt to commit child prostitution is punishable. Under Section 6 of

R.A. 7610, there is an attempt to commit child prostitution when any
person who, not being a relative of a child, is found alone with the said
child inside the room or cubicle of a house, an inn, hotel, motel, pension
house, apartelle or other similar establishments, vessel, vehicle or any
other hidden or secluded area under circumstances which would lead a
reasonable person to believe that the child is about to be exploited in
prostitution and other sexual abuse, or when any person is receiving
services from a child in a sauna parlor or bath, massage clinic, health club
and other similar establishments.

A penalty lower by two (2) degrees than that prescribed for the
consummated felony under Section 5 of R.A. 7610 (reclusion temporal
medium to reclusion perpetua) shall be imposed upon the principals of the
attempt to commit the crime of child prostitution.

Any person found guilty of child prostitution under R.A. 7610 may also be
found guilty of trafficking in persons under R.A. 9208.

When the victim is under sixteen (16) years of age, the perpetrator is also
liable for statutory rape under Republic Act No. 8353 as amended by R.A.
11648 or Article 336 of the Revised Penal Code, for acts of lasciviousness,
as the case may be. Where the perpetrator is guilty of acts of
lasciviousness against a child under twelve (12) years of age, the penalty
imposable shall be reclusion temporal in its medium period instead of
prision correccional as originally provided by Article 336 for all other
offenders.

2. Sexual Abuse - Children, whether male or female, due to the coercion or

influence of any adult, syndicate or group, indulge in sexual intercourse or
lascivious conduct, are deemed to be children subjected to sexual abuse.

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 The concept of sexual abuse is that through the coercion or influence of an
adult, syndicate or group, the offender has sexual relations with a child. The
same as child prostitution, the offender may be charged for statutory rape or
acts of lasciviousness under the Revised Penal Code as the case may be.

3. Child Trafficking – Child trafficking is committed by any person who shall

engage in trading and dealing with children including, but not limited to, the
act of buying and selling of a child for money, or for any other consideration,
or barter.

In the same manner, liability for child trafficking under R.A. 7610 may bring
with it liability for trafficking in persons under R.A. 9208, as amended.\

An attempt to commit child trafficking is punishable by both R.A. 7610 and

R.A. 9208, as amended by R.A. 10364. Under R.A. 7610 there is an attempt
when:

a. When a child travels alone to a foreign country without valid reason

therefor and without clearance issued by the Department of Social
Welfare and Development or written permit or justification from the
child's parents or legal guardian. A minor travelling abroad for any
purpose and for any duration of time without the company of their
parent must be subject of a Travel Clearance issued by the DSWD.

b. When a person, agency, establishment, or child-caring institution

recruit women or couples to bear children for the purpose of child
trafficking;

c. 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;

This is without prejudice to possible liability for simulation of

births or falsification of public documents under the Revised
Penal Code.

d. When a person engages in the act of finding children among low-

income families, hospitals, clinics, nurseries, day-care centers, or
other child-during institutions who can be offered for the purpose
of child trafficking.

4. Use of Children in Obscene Publications and Indecent Shows – This is

committed by any person who shall hire, employ, use, persuade, induce or
coerce a child to perform in obscene exhibitions and indecent shows, whether
live or in video, or to act as a model in obscene publications or pornographic
materials. The act is also committed by anyone who shall sell or distribute the
said obscene or pornographic materials.

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 In case of pornographic materials involving children, the provisions and
penalties under Republic Act No. 9775 – the Anti-Child Pornography Act of
2009 shall apply.

5. Employment of Children below Fifteen (15) Years of Age – The employment of

children below 15 years of age is not allowed by law, unless the child is issued
a Work Permit by the Department of Labor and Employment, and under the
following conditions only:

a. The child works directly under the sole responsibility of his parents or
legal guardian and where only members of the employer's family are
employed, provided the employment neither endangers his life, safety
and health and morals, nor impairs his normal development: Provided,
further, That the parent or legal guardian shall provide the said minor
child with the prescribed primary and/or secondary education;

b. When a child's employment or participation in public and in

entertainment or information through cinema, theater, radio or
television is essential: Provided, the employment contract concluded by
the child's parent or guardian, with the express agreement of the child
concerned, if possible, and the approval of the Department of Labor
and Employment: Provided, That the following requirements in all
instances are strictly complied with:

i. The employer shall ensure the protection, health, safety and

morals of the child;

ii. The employer shall institute measures to prevent the child's

exploitation or discrimination taking into account the system
and level of remuneration, and the duration and arrangement of
working time; and

iii. The employer shall formulate and implement, subject to the

approval and supervision of competent authorities, a continuing
program for training and skill acquisition of the child.

6. Other Acts of Neglect, Abuse, Cruelty or Exploitation and Other Conditions

Prejudicial to the Child's Development. – This covers all other acts that
constitute the neglect or abuse of a child, or involving cruelty or exploitation
of the same, or subjecting a child to conditions prejudicial to their
development.

These “other acts” include:

a. Neglect, physical or emotional or psychological abuse, cruelty;

b. Acts prejudicial to a child’s development under Section 59 of

Presidential Decree No. 603:

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 i. Art. 59. Crimes. – Criminal liability shall attach to any parent
who:

1. Conceals or abandons the child with intent to make such

child lose his civil status.
2. Abandons the child under such circumstances as to
deprive him of the love, care and protection he needs.
3. Sells or abandons the child to another person for valuable
consideration.
4. Neglects the child by not giving him the education which
the family’s station in life and financial conditions permit.
5. Fails or refuses, without justifiable grounds, to enroll the
child as required by Article 72.
6. Causes, abates, or permits the truancy of the child from
the school where he is enrolled.

“Truancy” as here used means absence without cause for

more than twenty schooldays, not necessarily consecutive.

It shall be the duty of the teacher in charge to report to the

parents the absences of the child the moment these
exceed five schooldays.

7. Improperly exploits the child by using him, directly or indirectly, such as for
purposes of begging and other acts which are inimical to his interest and
welfare.

8. Inflicts cruel and unusual punishment upon the child or deliberately subjects
him to indignations and other excessive chastisement that embarrass or
humiliate him.

People of the Philippines vs. George Bongalon, G.R. No. 169533, March 20, 2013
-

“Not every instance of the laying of hands on a child constitutes the

crime of child abuse under Section 10 (a) of Republic Act No. 7610.
Only when the laying of hands is shown beyond reasonable doubt to be
intended by the accused to debase, degrade or demean the intrinsic
worth and dignity of the child as a human being should it be punished
as child abuse. Otherwise, it is punished under the Revised Penal Code.”

9. Causes or encourages the child to lead an immoral or dissolute life.

10.Permits the child to possess, handle or carry a deadly weapon, regardless of

its ownership.

11.Allows or requires the child to drive without a license or with a license which
the parent knows to have been illegally procured. If the motor vehicle driven
by the child belongs to the parent, it shall be presumed that he permitted or
ordered the child to drive.

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 “Parents” as here used shall include the guardian and the head of the
institution or foster home which has custody of the child.

12.Any person who shall keep or have in his company a minor sixteen (16) years
of age or under or who is ten (10) years or more his junior in any public or
private place, hotel, motel, beer joint, discotheque, cabaret, pension house,
sauna or massage parlor, beach, and/or other tourist or similar places shall
suffer the penalty of prision mayor in its maximum period and a fine of not
less that Fifty thousand pesos (P50,000.00): Provided, That this provision
shall not apply to any person who is related within fourth degree of
consanguinity or affinity or any blood recognized by law, local custom and
tradition or acts in the performance of a social, moral or legal duty.;

13.Any person who shall induce, deliver or offer a minor to any one prohibited by
this Act to keep or have in his company a minor as provided in the preceding
paragraph.

14.Any person, owner, manager or one entrusted with the operation of any
public or private place of accommodation, whether for occupancy, food, drink
or otherwise, including residential places, who allows any person to take
along with him to such place or places any minor herein described;

15.Any person who shall use, coerce, force or intimidate a street child or any
other child to:

a. Beg or use begging as a means of living;

b. Act as conduit or middlemen in drug trafficking or pushing; or
c. Conduct any other illegal activity.

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In re: Prosecution of for Acts of Lasciviousness under Art. 366, RPC and R.A.
7610, as amended by R.A. 11648:

Section 5 of R.A. 7610, as amended by R.A. 11648, reads:

"Section 5. Child Prostitution and Other Sexual Abuse. - Children, whether

male or female, who for money, profit, or any other consideration or due to
the coercion or influence of any adult, syndicate or group, indulge in sexual
intercourse or lascivious conduct., are deemed to be children exploited in
prostitution and other sexual abuse

xxx

(a) x x x

(b) Those who commit the act of sexual intercourse or lascivious conduct with
a child exploited in prostitution or subjected to other sexual abuse: Provided,
That when the victim is under sixteen (16) years of age, the perpetrators shall
be prosecuted under Article 335, paragraph 2, for rape and Article 336 of Act
No. 3815, as amended, otherwise known as "The Revised Penal Code", for
rape, or lascivious conduct, as the case may be: Provided, That the penalty for
lascivious conduct when the victim is under sixteen (16) years of age shall be
reclusion perpetua in its medium period; and

x x x”

Notes:

1. If the child victim is under 16 years of age and sexual intercourse was
committed, the crime is statutory rape. The exempting circumstance provided
in R.A. 11648 shall not apply because the sexual intercourse is deemed
abusive and exploitative under the circumstances.

2. If lascivious conduct is committed against a person under 16 years of age, the

offender shall be prosecuted for Acts of Lasciviousness under Art. 336 of the
RPC. The penalty imposable is reclusion perpetua, instead of prision
correccional.

3. If the sexual intercourse or lascivious conduct is committed against a 17-year-

old minor, the offender shall be charged under Section 5 of R.A. 7610, as
amended. If the sexual intercourse or lascivious conduct is without the
victim’s consent, or falls under any circumstance attendant to rape, the

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 offender shall be charged for rape or acts of lasciviousness, as the case may
be, without prejudice to liability under R.A. 7610 for sexual abuse.

REPUBLIC ACT No. 9775

Anti-Child Pornography Act of 2009

While there is no special penal law that specifically prohibits pornography per se if
the material portrays an adult, the portrayal of children in pornographic materials is
the express prohibition embodied in R.A. 9775.

Under this law, a “Child” refers to a person below eighteen (18) years of age or over,
but is unable to fully take care of himself/herself from abuse, neglect, cruelty,
exploitation or discrimination because of a physical or mental disability or
condition.

As an expanded definition of a “child,” exclusively for the purposes of R.A. 9775, the
term also refers to a person regardless of age who is presented, depicted or
portrayed as a child as defined herein; and computer-generated, digitally or
manually crafted images or graphics of a person who is represented or who is made
to appear to be a child as defined herein.

Child Pornography

“Child pornography” refers to any representation, whether visual, audio, or written

combination thereof, by electronic, mechanical, digital, optical, magnetic or any
other means, of child engaged or involved in real or simulated explicit sexual
activities.

As used in the law, an “explicit sexual activity” includes any of the following acts of a
sexual nature, whether actual or simulated:

1. Sexual intercourse or lascivious act including, but not limited to, contact
involving genital to genital, oral to genital, anal to genital, or oral to anal,
whether between persons of the same or opposite sex;
2. Bestiality;
3. Masturbation;
4. Sadistic or masochistic abuse;
5. Lascivious exhibition of the genitals, buttocks, breasts, pubic area and/or
anus; or
6. Use of any object or instrument for lascivious acts.

Prohibited Acts

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1. To hire, employ, use, persuade, induce or coerce a child to perform in the
creation or production of any form of child pornography;

2. To produce, direct, manufacture or create any form of child pornography;

3. To publish offer, transmit, sell, distribute, broadcast, advertise, promote,

export or import any form of child pornography;

4. To possess any form of child pornography with the intent to sell, distribute,
publish, or broadcast;

Presumption of an Intent to Sell, Distribute, Publish or Broadcast:

The possession of three (3) or more articles of child

pornography of the same form shall be prima facie evidence of
the intent to sell, distribute, publish or broadcast.

It would appear from the presumption that possession of 3 or

more articles of child pornography must involve articles of the
same form. By process of elimination, if the articles are not of the
same form (as in, printed material, photograph, literature, digital
media, etc.), then the presumption is not present.

5. To knowingly, willfully and intentionally provide a venue for the commission

of prohibited acts as, but not limited to, dens, private rooms, cubicles,
cinemas, houses or in establishments purporting to be a legitimate business;

6. For film distributors, theaters and telecommunication companies, by

themselves or in cooperation with other entities, to distribute any form of
child pornography;

7. For a parent, legal guardian or person having custody or control of a child to

knowingly permit the child to engage, participate or assist in any form of child
pornography;

8. To engage in the luring or grooming of a child.

“Luring” refers to the act of communicating, by means of a computer

system, with a child or someone who the offender believes to be a child
for the purpose of facilitating the commission of sexual activity or
production of any form of child pornography.

“Grooming” refers to the act of preparing a child or someone who the

offender believes to be a child for sexual activity or sexual relationship
by communicating any form of child pornography. It includes online
enticement or enticement through any other means.

9. To engage in pandering of any form of child pornography;

“Pandering” refers to the act of offering, advertising, promoting,

representing or distributing through any means any material or

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 purported material that is intended to cause another to believe that the
material or purported material contains any form of child pornography,
regardless of the actual content of the material or purported material.

10.To willfully access any form of child pornography;

11.To conspire to commit any of the prohibited acts stated above.

12.To possess any form of child pornography.

The character of the possession of child pornography is the same

character of possession as described in Republic Act No. 9165 – the
Comprehensive Dangerous Drugs Act. To be punishable the offender
must knowingly and willfully possess any article of child pornography.

For this purpose, a photograph, video or literature involving child

pornography, albeit digital, found in a digital device owned by the
offender, is considered possession.

Child Pornography, when Syndicated

The crime of child pornography is deemed committed by a syndicate if carried out

by a group of three (3) or more persons conspiring or confederating with one
another.

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CRIMES AGAINST PERSONAL LIBERTY AND SECURITY

Crimes against Liberty

The crimes against liberty under the Revised Penal Code are offenses committed
against the right of a person to liberty – that is, as used in this topic, the freedom to
move and to be free from unlawful restriction or control.

These crimes must be differentiated from the crimes considered “arbitrary

detention,” in that the latter crimes involve acts of a public officer or employee
violating the liberty of a person. By the fact that the offender is a public officer or
employee in the exercise of their official duty, crimes falling under arbitrary
detention now become crimes against the fundamental law of the state because in
acting in their official capacities, they act as agents of the State. In turn, they are
clothed with apparent authority which leads to the violation of the constitutional
right to liberty.

To be considered a crime against liberty (and not a crime against the fundamental
law of the State), the personality of the offender must be considered. Crimes against
liberty are committed by either (i) a private individual; or (ii) a public officer or
employee who is acting in their personal or private capacity.

The Concept of Detention

“Detention” literally is the restriction of liberty. But while the use of the word,
“detention” connotes a physical restriction of the right of movement, or the
imprisonment of an individual, the concept has been interpreted to include all forms
of restriction of movement, whether that restriction involves physical restraint or
otherwise.

The prevailing jurisprudence on kidnapping and illegal detention is that the

curtailment of the victim's liberty does not need to involve any physical restraint
upon the victim's person. (Astorga v. People, G.R. No. 154130, October 1, 2003)

In People vs. Bisda, the Court upheld the conviction of kidnapping for ransom even
though the abducted five-year old child was, during her detention, free to roam
around the place of detention, to practice on her drawing and to watch television,
and was regularly fed and bathed. Citing United States vs. McCabe3, the Court stated

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that "to accept a child's desire for food, comfort as the type of will or consent
contemplated in the context of kidnapping would render the concept meaningless."
Should the child even want to escape, said the Court, she could not do so all by
herself given her age; she was under the control of her abductors and was merely
waiting and hoping that she would be brought home or that her parents would fetch
her.

The conclusion is that there is detention when a person’s liberty is restricted

without lawful cause, whether or not there is an actual physical restraint. Reasons
when a private individual may restrict another individual’s liberty include but may
not be limited to:

1. In case of an arrest carried out by a private individual under Section 9, Rule

113 of the Rules of Court which states:

“Section 9. Method of arrest by private person. — When making an

arrest, a private person shall inform the person to be arrested of the
intention to arrest him and cause of the arrest, unless the latter is
either engaged in the commission of an offense, is pursued immediately
after its commission, or has escaped, flees, or forcibly resists before the
person making the arrest has opportunity to so inform him, or when
the giving of such information will imperil the arrest.”

2. In case of parents who, in the legitimate exercise of parental authority, restrict

the liberty and freedom of movement of their minor children while under
their support;

3. In case of employers in the legitimate exercise of their management

prerogatives on requiring an employee to be at the place of work at a
specified time and date in relation to the employer’s power to control the
conduct of their employees;

4. Lawful exercise of organizational rules or regulations pursuant to the

obligations of membership in an organization;

5. Lawful exercise of duty by a school upon a student, as in the case where the
student is required to stay within school premises for the duration of class
hours, or in case of the imposition of disciplinary action where the erring
student is required to render extra hours of productive work by way of
penalty; or

6. In case where a valid and lawful state of necessity as a justifying circumstance

is present where, to avoid an equal or greater injury a private individual must
restrict the liberty of another.

Illegal Detention

Illegal detention is present when a private individual kidnaps or detains another, or

in any manner deprives another person of their liberty. The detention may be

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serious or slight although the purpose of the detention must be primarily, to deprive
the victim of their right to liberty and secondarily, for any other purpose except as
provided in Article 269.

Serious Illegal Detention

Detention, to be serious must be done under any of the following circumstances:

1. The detention lasts for more than five (5) days;

2. The detention is done while simulating public authority;

This is without prejudice to the possibility that the offender will also be liable
for usurpation of authority:

“Article 177. Usurpation of authority or official functions. - Any person

who shall knowingly and falsely represent himself to be an officer,
agent or representative of any department or agency of the Philippine
Government or of any foreign government, or who, under pretense of
official position, shall perform any act pertaining to any person in
authority or public officer of the Philippine Government or any foreign
government, or any agency thereof, without being lawfully entitled to
do so…

x x x”

3. Serious physical injuries are inflicted upon the person detained;

4. Threats to kill the person detained are made; or
5. The person detained is a minor, a female or a public officer.

Where the detention is made under any of the circumstances under paragraphs (ii)
to (v) above, the detention need not last for more than 5 days.

If the act of detention is not done under any of the above circumstances, the crime is
Slight Illegal Detention.

Kidnapping with Ransom

“Kidnapping” is sometimes used interchangeably with “Serious Illegal Detention,”

except that whenever there is ransom demanded as a condition for the restoration of
the victim’s liberty, the term “kidnapping” is more appropriately and popularly used.

A “ransom” is anything that the offender demands in exchange of the liberty of the
person detained. It is supposed to be an aggravating circumstance that causes the
imposition of the death penalty, since the penalty for serious illegal detention is
reclusion perpetua to death.

Early Release as a Privileged Mitigating Circumstance

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If the offender shall voluntarily release the person so kidnapped or detained within
three (3) days from the commencement of the detention, without having attained
the purpose intended, and before the institution of criminal proceedings against
him, the penalty shall be prision mayor in its minimum and medium periods with
payment of a fine, from reclusion temporal.

This applies only where the crime committed is slight illegal detention.

Unlawful Arrest

The crime is committed by any person who, in any case other than those authorized
by law, or without reasonable ground therefor, shall arrest or detain another for the
purpose of delivering him to the proper authorities.

Compared to Arbitrary Detention

Arbitrary detention under Article 214 is committed by a public officer or employee

who detains a person without lawful ground. If the detention is for the purpose of
arresting the victim, the crime is unlawful arrest.

A public officer or employee falls under the term, “any person.”

Compared to Illegal Detention

The purpose of an unlawful arrest is to deliver a person to the proper authorities. On

the other hand, illegal detention is committed for the purpose of collecting ransom,
or for any other unlawful purpose.

Kidnapping of Minors

The concept of “kidnapping” in this case is not the same concept of “kidnapping with
ransom” as previously discussed, although it also involves a deprivation of liberty.

Kidnapping and Failure to Return a Minor

This is committed by any person who is entrusted with the temporary custody of a
minor who deliberately fails to restore them to their parents or guardians.

The term, “any person” may include a parent who refuses to return their minor child
to the other parent who has a right to custody. This is so because the illegitimate
father generally has no right to custody, although he may have a limited right of
visitation.

As the Supreme Court ruled in Masbate, et.al., vs. Relucio:

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 “As a general rule, the father and the mother shall jointly exercise parental
authority over the persons of their common children. However, insofar as
illegitimate children are concerned, Article 176 of the Family Code states that
illegitimate children shall be under the parental authority of their mother.
Accordingly, mothers are entitled to the sole parental authority of their
illegitimate children, notwithstanding the father's recognition of the child. In
the exercise of that authority, mothers are consequently entitled to keep their
illegitimate children in their company, and the Court will not deprive them of
custody, absent any imperative cause showing the mother's unfitness to
exercise such authority and care.”

The case of People of the Philippines vs. Marquez provided:

“x x x This court, in elucidating on the elements of Article 270, stated that

while one of the essential elements of this crime is that the offender was
entrusted with the custody of the minor, what is actually being punished is
not the kidnapping but the deliberate failure of that person to restore the
minor to his parents or guardians. As the penalty for such an offense is so
severe, the court further explained what “deliberate” as used in Article 270
means: Indeed, the word “deliberate” as used in Article 270 of the Revised
Penal Code must imply something more than mere negligence–it must be
premeditated, headstrong, foolishly daring or intentionally and maliciously
wrong. x x x”

Inducing a Minor to Abandon his Home

The crime is committed by anyone who shall induce a minor to abandon the home of
their parent or guardians or the persons entrusted with his custody.

A privileged mitigating circumstance is present where the offender is the minor’s

father or mother.

Crimes against Security

Abandonment of Helpless Persons

All persons are required to render some assistance to those who are in need of it.
The failure to provide the assistance as required by law is an example of an omission
which is punishable by law.

The situation leading to a person requiring assistance may be coincidental, as in a

case where the meeting of that person and the offender is by chance, or by reason of
an act or omission of the offender which caused another person to be placed in such
a predicament requiring assistance.

Abandonment of a Person in Danger

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The following omissions are punishable:

1. Anyone who shall fail to render assistance to any person whom he shall find
in an uninhabited place wounded or in danger of dying, when he can render
such assistance without detriment to himself, unless such omission shall
constitute a more serious offense.

The following requisites must concur:

a. The person requiring assistance must be in an uninhabited place which,

under the law is any place where the possibility of seeking or availing of
immediate help is not available. It does not require that the place be
deserted or be totally without any inhabitants. What makes a place
“uninhabited” is the absence of persons who can provide immediate help
when it is required.

For this purpose, the top floor of a multi-storey building which is not
occupied by employees or any person may be an uninhabited place. The
middle of a rice field at night may also be considered an uninhabited place.

b. The person requiring assistance must be physically incapacitated to seek

help on their own by reason of an injury. The degree of the injury must be
so grave that the person requiring assistance cannot seek it themselves;
OR the person requiring assistance must be in danger of dying, as in a case
where someone suffered a stroke or a heart attack, or is suffering an
asthma attack.

c. The offender may provide assistance without detriment to himself, as

where the person in need of assistance does not need to be rescued by
specialized equipment or personnel. The law excuses the failure or refusal
to provide assistance when the provision of assistance is detrimental to
the offender; and

d. If the offender does not provide assistance, the person requiring it will or
will probably die, such that it is imperative that the offender should
provide the required assistance to save a person’s life as a matter of legal
and moral duty.

The offender will be liable for abandonment of a person in danger

under the first paragraph only if the law does not punish the omission
as a more serious offense.

Illustration 1: Jose saw Jacinto lying on a public sidewalk at 4:00 PM,

unconscious. Thinking he was drunk, Jose sidestepped around Jacinto
and went on his way. It turned out that Jacinto suffered a heart attack
and because no one assisted him, he passed away. Jose is not liable for a
crime because Jacinto was found in a public place, which is not an
uninhabited place.

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 Illustration 2: Jose saw Jacinto lying on a public sidewalk at 2:00 AM,
unconscious. Thinking he was drunk, Jose sidestepped around Jacinto
and went on his way. It turned out that Jacinto suffered a heart attack
and because no one assisted him, he passed away. Jose is liable for
abandonment because while Jacinto was found in a public place, the
time of day makes it uninhabited. If Jose had provided assistance
Jacinto may have survived.

Illustration 3: While jogging through a mountain trail Jose heard

Jacinto shouting for help. When located, Jose saw Jacinto dangling
precariously over a cliff, hanging only by a branch that was protruding
from a ravine. Jose has no rescue or climbing skills and he does not
have experience on how to deal with the situation. Jose takes out his
cellular phone and calls for help, but before it could arrive, the branch
broke off and Jacinto fell into the ravine. Jose is not liable for a crime
because first, he could not rescue Jacinto without detriment to himself
and second, he provided the best assistance he could by calling for help.

2. Anyone who shall fail to help or render assistance to another whom he has
accidentally wounded or injured;

While the law exempts a person from criminal liability for damage,
injury or even death that is caused by a pure accident, the law penalizes
the person for abandoning those injured by reason of the accident.

It is true that a person shall not be criminally liable for damage or

injury caused by them if the same was by a pure accident. The liability
for abandonment does not arise from the accident – the abandonment
is a felony by itself.

3. Anyone who, having found an abandoned child under seven years of age, shall
fail to deliver said child to the authorities or to his family, or shall fail to take
him to a safe place.

The offender must find an abandoned child under seven years of age to
be punished under Article 275. If the child was under the custody of the
offender who abandoned them, criminal liability for abandonment shall
be based on Article 276, Abandoning a Minor.

In both cases, mere abandonment is already punishable, whether or

not the child’s life is in danger or the child dies. Liability under either
Article 275 and 276 regarding minor children may include liability for
violation of Republic Act No. 7610 – the Anti-Child Abuse Law.

Abandonment of a Minor under Article 277

Abandonment of minors are discussed in paragraph 3 of Article 275

and in Article 276.

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 The abandonment contemplated in Article 277 involves the
abandonment of any minor regardless of the age of minority by a
person who does not only exercise custody but also has the obligation
to either raise the child or provide education (either as parent or
guardian), and where the child is abandoned not just any place but to a
public institution (the DSWD, perhaps) or to any other person without
the consent of the person entrusting the care of the child to the
offender or in the absence thereof, by the proper authorities.

Liability for abandonment under Article 277 may bring liability for
violation of Republic Act No. 7610 – the Anti-Child Abuse Law; Republic
Act No. 8552 – the Domestic Adoption Act if the purpose of the
abandonment is to cause the adoption of the child by some other
person; or Republic Act No. 9208 – the Anti-Trafficking in Persons Act,
on Child Trafficking if the abandonment of the child was coupled by
some payment or consideration.

Indifference of Parents under Article 277

While not exactly “abandonment,” indifference under Article 277

involves a refusal to provide education required by a child when the
parents’ financial conditions permit.

The indifference discussed under Article 277 involve only the

obligation to provide education, not other needs or survival
requirements.

As in other cases involving minors, liability under this omission may

include liability for violation of Republic Act No. 7610 – the Anti-Child
Abuse Law.

Trespass to Dwelling

“Dwelling,” by its common and ordinary meaning, refers to a place where a person
lives either permanently or temporarily and where a person habitually stays for rest,
comfort and peace of mind. As such, when a person is in their dwelling there must
be a sense of safety and security.

As stated by Luis Jimenez de Asua in his work, “Tratado de Derecho Penal,” “…the
dwelling is the extension in space of our own personality. We reign in it as in the
intimacy of our own conscience. It is for this reason that the inviolability of the home
is consecrated in the Constitution…”

A violation of this safety and security is the gist of the crime of trespass to dwelling,
but which must be committed by a private person, or a public officer or a public
employee who must be acting in their private capacities. If the crime is committed
by a public officer or a public employee acting in their official capacity, the crime is a
violation of domicile.

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The crime is committed by anyone who shall enter the dwelling of another against
the latter’s will, with or without their knowledge.

The term “dwelling” includes all the dependencies necessary for a house or for rest
or for comfort or a place of privacy. If the place used is on the second floor, the stairs
which are used to reach the second floor is considered a dwelling because the
second floor cannot be enjoyed without the stairs. If the offended party was
assaulted while on the stairs, dwelling is already aggravating. For this reason,
consider (sic) that any dependency necessary for the enjoyment of a place of abode
is considered a dwelling. (Brabante)

By the meaning of “dwelling,” the following places are excluded:

1. The place of work or business, even if a person habitually rests or sleeps

there, if the place is primarily dedicated for work or business;

2. Public places or public spaces, or portions of public property;

3. All other places not used as a place of rest or comfort.

Qualified Trespass to Dwelling

The crime is qualified when the trespass is committed by means of violence or

intimidation.

Not an Aggravating Circumstance

Article 14 considers dwelling as an aggravating circumstance, where the offender

committed the crime in the dwelling of the offended party. But to be considered
aggravating, the trespass to dwelling must not be the crime itself – meaning, there
must be a different crime committed other than the trespass.

Because if the crime committed was a trespass to the dwelling of the offended party,
the fact of dwelling is absorbed in the crime, since the trespass is the crime itself.
Thus, it should not be appreciated as an aggravating circumstance.

On Property Owners and Leased Premises

The term “dwelling” is broad enough to include places of permanent or temporary

stay. Thus, leased premises, for the duration of the lease, are under the lawful
possession and control of the lessee and for that duration, the premises are
considered their dwelling.

Despite being the owner of the premises, the lessor may be held liable for trespass
to dwelling (or be affected by it as an aggravating circumstance) if they enter the
leased premises without the knowledge or consent of the lessee. As lessors, they do
not possess the right to enter leased premises at any time without prior notice to or
permission from the lessee. This is because in a contract of lease, the lessor

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surrenders the right to lawful control and possession of property, or a portion
thereof in favor of the lessee for the payment of rent or some other consideration.
For this reason, the owner may be treated as an intruder in his own property and be
held liable accordingly.

Purpose of the Trespass

As a rule, the purpose of the offender is irrelevant for there to be liability for
trespass to dwelling. The mere presence of an intruder inside the dwelling and
without the knowledge or consent of the owner or lawful possessor of the premises
consummates the crime. But if the purpose of the trespass is known, the following
may be the consequences:

1. If the purpose of the trespass is to steal, the crime may be attempted theft,
attempted robbery, attempted carnapping, attempted qualified theft as the
case may be;

2. If the purpose is to commit some other crime, the crime may be in its
attempted stage, as in attempted rape, attempted homicide or attempted
arson.

The reason why the crime would be in their attempted stage is because the unlawful
entry into the dwelling is an overt act in the commission of the crime where logically,
no frustration of any other crime could be possible. For this purpose, Article 6 is
instrumental:

“There is an attempt when the offender commences the commission of

a felony directly or over acts, and does not perform all the acts of
execution which should produce the felony by reason of some cause or
accident other than this own spontaneous desistance.”

In People of the Philippines vs. Tayag and Morales the Supreme Court ruled:

“There is absolutely nothing of record to show that the defendant’s

intention was to commit robbery, or that they knew that they would
find money inside the store. In every criminal proceeding, the guilt of
the accused must be proven by means of competent and conclusive
evidence and should never be based on mere inferences, however
reasonable these may be, particularly when there still remains, as in
this case, a sufficient indication of the existence of an intention
different from that of committing robbery.

xxx

The act committed by the appellants simply constitutes the crime of

attempted trespass to dwelling, as defined in article 280, paragraph 2,
of the Revised Penal Code, that is, trespass committed by means of
violence.”

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On the Doctrine of State of Necessity

The last paragraph of Article 280 provides for a state of necessity which justifies an
act of entry into a dwelling which would normally be considered an act of trespass:

“The provisions of this article shall not be applicable to any person who shall enter
another's dwelling for the purpose of preventing some serious harm to himself, the
occupants of the dwelling or a third person, nor shall it be applicable to any person
who shall enter a dwelling for the purpose of rendering some service to humanity or
justice, nor to anyone who shall enter cafes, taverns, inn and other public houses,
while the same are open.”

The case of Marzalado, Jr. vs. People of the Philippines is illustrative:

“What remains now is the issue of whether the entry of petitioner

Marzalado, Jr., was legally justified. We rule that it is, based on the
circumstances of this case.

As certified by Barangay Lupon Secretary Romulo E. Ragaya, the unit

rented by Albano was "forcibly opened by the owner because of the
strong water pressure coming out of the faucet…" As Albano herself
admitted, she and her children already left the unit when the electricity
supply was cut off in the month of September. Hence, nobody was left
to attend to the unit, except during some nights when Albano's maid
slept in the unit. Clearly, Marzalado, Jr., acted for the justified purpose
of avoiding further flooding and damage to his mother's property
caused by the open faucet. No criminal intent could be clearly imputed
to petitioner for the remedial action he had taken. There was an
exigency that had to be addressed to avoid damage to the leased unit.
There is nothing culpable concerning Marzalado, Jr.'s judgment call to
enter the unit and turn off the faucet instead of closing the inlet valve as
suggested by the OSG.

Thus, we find the evidence on record insufficient to hold petitioner

guilty of the offense charged. Palpable doubt exists in our mind as to
the guilt of petitioner. In our view, the Court of Appeals erred in
affirming the Decision of the Regional Trial Court and of the
Metropolitan Trial Court when it found petitioner guilty of Qualified
Trespass to Dwelling. In a situation of ambiguity, where the act of the
accused permits of two possible signification, one culpable and another
innocent, the ambiguity should be resolved in favor of the accused. The
evidence in this case simply fails to convince us of his guilt beyond
reasonable doubt.”

Other Forms of Trespass

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Where the property intruded upon is not a dwelling but is still private property, the
crime committed may still be trespass, but in another form. The following requisites
must be present:

1. The property intruded upon is private property owned by the offended party;

2. The premises must be closed, fenced or otherwise contains a clear or manifest

prohibition against unauthorized entry;

3. The premises are uninhabited at the time of entry; and

4. The entry is without the permission of the owner or caretaker of the property.

For the above purpose, the private property does not have to be totally fenced or
enclosed by a fence. Any manifest or obvious prohibition against intrusion is
sufficient, such as a simple wire fence or a “no trespassing” sign.

Threats and Coercion

Threats

A “threat” is any act or statement that informs another of an impending harm,

whether that harm constitutes a crime or otherwise. For there to be liability for a
threat the following may be considered:

1. The intention of the offender to threaten the offended party or not; and
2. The mindset of the offended party, if they were threatened by the offender’s
act.

Grave and Light Threats

A “grave threat” is an act of threatening an infliction upon the person, honor or

property of the latter or of his family of any wrong amounting to a crime.

1. If the offender shall have made the threat demanding money or imposing any
other condition, even though not unlawful, and said offender shall have
attained his purpose, the penalty next lower in degree than that prescribed by
law for the crime be threatened to commit will be imposed. If the offender
shall not have attained his purpose, the penalty lower by two degrees shall be
imposed.

Illustration 1: Jose threatened to shoot and kill Jacinto’s wife if he is not able
to pay his debt within three (3) days. Jacinto paid his debt within a day.

The penalty imposable upon Jose is prision mayor, the penalty one degree
lower than reclusion temporal, which is the penalty for homicide, the crime
Jose threatened to commit against Jacinto’s wife.

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 But if Jacinto still did not pay his debt, Jose is liable to suffer prision
correccional, which is two degrees lower than reclusion temporal.

If Jose made good his threat and killed Jacinto’s wife, Jose is liable for grave
threat, for threatening to commit the crime, and for homicide for the actual
killing. The making of the threat and the commission of the actual crime
threatened are two different crimes.

Illustration 2: Jose threatened to rape Jacinto’s sister if he does not leave

Jose’s property which Jacinto intruded upon. The penalty imposable upon
Jose is reclusion temporal, the penalty one degree lower than reclusion
perpetua which is the penalty for rape, the crime Jose threatened to commit
against Jacinto’s wife.

2. If the threat be made in writing or through a middleman, the penalty shall be

imposed in its maximum period.

Illustration 1: Jose sent a text message to Jacinto threatening to burn him

alive if he didn’t delete a photograph, he took of Jose having sexual
intercourse with a woman who is not his wife.

The penalty for murder is reclusion perpetua. The penalty for a threat to
commit murder is reclusion temporal. The fact that the threat was made in
writing is an aggravating circumstance which causes the eventual penalty to
be imposed in its maximum.

Illustration 2: Jose sent Javier to tell Jacinto to delete a photograph Jacinto

took of Jose having sexual intercourse with a woman who is not his wife,
otherwise he will “die a long and painful death.”

The crime threatened to be committed is murder, since the threat implies the
killing of Jacinto with cruelty. Since the penalty for murder is reclusion
perpetua, the penalty for a threat to commit murder is reclusion temporal.
The fact that the threat was made through a middleman is an aggravating
circumstance which causes the eventual penalty to be imposed in its
maximum.

3. If the threat shall not have been made subject to a condition, the penalty is
arresto mayor and a fine not exceeding Php100,000.00 pesos (Article 282 as
amended by Republic Act No. 10951).

Illustration: Because of a traffic altercation, Jose gestured at Jacinto with his

finger running across his neck and then drove away. Jose is liable for grave
threat despite not saying anything. The act of running one’s finger across their
neck is a threat to kill Jacinto. But since no condition was imposed, he will
only suffer arresto mayor and a fine not exceeding Php100,000.00 pesos, if
convicted.

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 4. Any other threat that involves an act not constituting a crime and which is
committed under any of the above circumstances is punished as light threat.

Illustration 1: Jose threatened to tell Jacinto’s wife of his (Jacinto)

extramarital affair with Javiera is Jacinto does not pay his debt within two
days.

Illustration 2: Jose threatened to report Jacinto’s tardiness to their

supervisor if Jacinto does not agree to take over Jose’s overtime shift at work.

The following may constitute other light threats:

a. Any person who, without being included in the provisions of the

next preceding article, shall threaten another with a weapon, or
draw such weapon in a quarrel, unless it be in lawful self-defense.

In threatening another with a weapon, it is not necessary that the

offender be actually armed. It is sufficient that the threat instills in
the mind of the offended party that they stand to be harmed with
the use of a weapon. But when the offender is actually armed and
draws the weapon in a quarrel, the crime committed may be light
threat.

If the offender points a drawn firearm against their opponent, the

crime may be grave threat because now there is an action that
shows the commission of an impending harm towards another that
constitutes a crime.

b. Any person who, in the heat of anger, shall orally threaten another
with some harm not constituting a crime, and who by subsequent
acts shows that he did not persist in the idea involved in his threat:
Provided, That the circumstances of the offense shall not bring it
within the provisions of Article 282 (Grave Threat) of this Code;

Illustration: While Jose and Jacinto were in the heat of arguing with
each other, Jose shouted, “Idedemanda kita!” During the days that
followed Jose was observed going about his daily life.

c. Any person who shall orally threaten to do another any harm not
constituting a felony.

Illustration: Irritated by his neighbor, Jacinto, Jose shouted at him

through his window that he will report Jacinto’s act of butchering a
dog to the police.

Grave Coercion

The concept of grave coercion is that a person is being forcibly prevented from
performing a lawful act, or that they are being forced to perform an act against their
will, whether that act be lawful or not, where there is no authority of law to do so.

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Illustration 1: Jose forcibly keeps Jacinta, his wife in their home and refuses to
allow her to leave and go visit her ailing mother. Jose’s act of forcing Jacinta to
remain at home and preventing her from visiting her mother (a lawful act) is grave
coercion. He may also be liable for serious illegal detention, and for violation of
Republic Act No. 9262 for controlling the actions of his wife.

Illustration 2: After perfecting a contract of sale, Jacinto refused to sign the contract
without just cause. Angered, Jose grabbed Jacinto’s hand and forced him to indicate
his thumb mark on the contract.

In forcing Jacinto to perform a lawful act against his will, Jose is liable for grave
coercion.

Illustration 3: Kagawad Jose forcibly pushed Jacinto back into his home when
Jacinto, a COVID-19 patient attempted to leave his place of isolation.

Kag. Jose is not liable for grave coercion despite having forcibly prevented Jacinto
from going out of his home because Kag. Jose las lawful authority by law to ensure
that Jacinto complies with the order to go on isolated quarantine.
Light Coercion

Under Article 287, this is committed by person who, by means of violence, shall
seize anything belonging to his debtor for the purpose of applying the same to the
payment of the debt.

Unjust Vexation

An unjust vexation is any act that annoys or offends a person. These are also
punished under Article 287.

REPUBLIC ACT NO. 10175

CYBERCRIME PREVENTION ACT OF 2012

Cybercrime Offenses

The following acts constitute the offense of cybercrime:

1. Offenses against the confidentiality, integrity and availability of computer

data and systems:

a. Illegal Access. – The access to the whole or any part of a computer

system without right.

b. Illegal Interception. – The interception made by technical means

without right of any non-public transmission of computer data to, from,
or within a computer system including electromagnetic emissions from
a computer system carrying such computer data.

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 c. Data Interference. — The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or
electronic data message, without right, including the introduction or
transmission of viruses.

d. System Interference. — The intentional alteration or reckless hindering

or interference with the functioning of a computer or computer
network by inputting, transmitting, damaging, deleting, deteriorating,
altering or suppressing computer data or program, electronic
document, or electronic data message, without right or authority,
including the introduction or transmission of viruses.

e. Misuse of Devices.

i. The use, production, sale, procurement, importation,

distribution, or otherwise making available, without right, of:

1. A device, including a computer program, designed or

adapted primarily for the purpose of committing any of
the offenses under this Act; or

2. A computer password, access code, or similar data by

which the whole or any part of a computer system is
capable of being accessed with intent that it be used for
the purpose of committing any of the offenses under this
Act.

3. The possession of an item referred to in paragraphs 5(i)

(aa) or (bb) above with intent to use said devices for the
purpose of committing any of the offenses under this
section.

f. Cyber-squatting. – The acquisition of a domain name over the internet

in bad faith to profit, mislead, destroy reputation, and deprive others
from registering the same, if such a domain name is:

i. Similar, identical, or confusingly similar to an existing trademark

registered with the appropriate government agency at the time
of the domain name registration;

ii. Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and

iii. Acquired without right or with intellectual property interests in

it.

2. Computer-related Offenses:

a. Computer-related Forgery

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 i. The input, alteration, or deletion of any computer data without
right resulting in inauthentic data with the intent that it be
considered or acted upon for legal purposes as if it were
authentic, regardless whether or not the data is directly readable
and intelligible; or

ii. The act of knowingly using computer data which is the product
of computer-related forgery as defined herein, for the purpose of
perpetuating a fraudulent or dishonest design.

b. Computer-related Fraud. — The unauthorized input, alteration, or

deletion of computer data or program or interference in the
functioning of a computer system, causing damage thereby with
fraudulent intent: Provided, that if no damage has yet been caused, the
penalty imposable shall be one (1) degree lower.

c. Computer-related Identity Theft. – The intentional acquisition, use,

misuse, transfer, possession, alteration or deletion of identifying
information belonging to another, whether natural or juridical, without
right: Provided, that if no damage has yet been caused, the penalty
imposable shall be one (1) degree lower.

3. Content-related Offenses:

a. Cybersex. — The willful engagement, maintenance, control, or

operation, directly or indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer system, for favor or
consideration.

b. Child Pornography. — The unlawful or prohibited acts defined and

punishable by Republic Act No. 9775 or the Anti-Child Pornography Act
of 2009, committed through a computer system: Provided, That the
penalty to be imposed shall be (1) one degree higher than that
provided for in Republic Act No. 9775.

c. Unsolicited Commercial Communications. — The transmission of

commercial electronic communication with the use of computer system
which seek to advertise, sell, or offer for sale products and services are
prohibited unless:

i. There is prior affirmative consent from the recipient; or

ii. The primary intent of the communication is for service and/or

administrative announcements from the sender to its existing
users, subscribers or customers; or

iii. The following conditions are present:

1. The commercial electronic communication contains a

simple, valid, and reliable way for the recipient to reject.

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 receipt of further commercial electronic messages (opt-
out) from the same source;

2. The commercial electronic communication does not

purposely disguise the source of the electronic message;
and

3. The commercial electronic communication does not

purposely include misleading information in any part of
the message in order to induce the recipients to read the
message.

d. Libel. — The unlawful or prohibited acts of libel as defined in Article

355 of the Revised Penal Code, as amended, committed through a
computer system or any other similar means which may be devised in
the future.

A “computer system” as defined by R.A. 10175 refers to any device or

group of interconnected or related devices, one or more of which,
pursuant to a program, performs automated processing of data. It
covers any type of device with data processing capabilities including,
but not limited to, computers and mobile phones. The device consisting
of hardware and software may include input, output and storage
components which may stand alone or be connected in a network or
other similar devices. It also includes computer data storage devices or
media.

The above definition includes the use of devices which are connected to
the Internet, thus the act of cyber libel necessarily involves the use of
an electronic device connected to the Internet and, in this particular
case, the allegedly-defamatory post is made public through an online
platform.

As to libel itself, Article 355 of the Revised Penal Code, as amended by

Republic Act No. 10951 states:

"Art. 355. Libel by means of writings or similar means. - A libel

committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prisión correccional in its minimum and medium
periods or a fine ranging from Forty thousand pesos (₱40,000)
to One million two hundred thousand pesos (₱1,200,000), or
both, in addition to the civil action which may be brought by the
offended party."

A libel is public and malicious imputation of a crime, or of a vice or

defect, real or imaginary, or any act, omission, condition, status, or
circumstance tending to cause the dishonor, discredit, or contempt of a
natural or juridical person, or to blacken the memory of one who is
dead. Its elements are: (a) the allegation of a discreditable act or

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 condition concerning another; (b) publication of the charge; (c)
identity of the person defamed; and (d) existence of malice.

For the crime to be cyber-libel, a fifth element is necessary, (e) that the
libelous material be published using information communication
technology (ICT) or a computer system.

4. Other Offenses. — The following acts shall also constitute an offense:

a. Aiding or Abetting in the Commission of Cybercrime. – Any person who

willfully abets or aids in the commission of any of the offenses
enumerated in this Act shall be held liable.

b. Attempt in the Commission of Cybercrime. — Any person who willfully

attempts to commit any of the offenses enumerated in this Act shall be
held liable.

5. All crimes defined and penalized by the Revised Penal Code, as amended, and
special laws, if committed by, through and with the use of information and
communications technologies shall be covered by the relevant provisions of
this Act: Provided, That the penalty to be imposed shall be one (1) degree
higher than that provided for by the Revised Penal Code, as amended, and
special laws, as the case may be.

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CRIMES AGAINST PROPERTY

Unlawful Taking of Property

The crimes against property involving unlawful taking of property are robbery and
theft, in general. Highway robbery, or brigandage, piracy, qualified theft are products
of the basic crimes of robbery and theft.

For there to be robbery or theft the following requisites must be present:

1. That there is taking of personal property;

2. That the personal property taken belongs to another;

3. That the taking of the personal property must be coupled with an intention to
gain, or animus lucrandi;

4. That the circumstances surrounding the taking of the personal property must
be unlawful; and

For there to be robbery, an additional requisite must be present:

5. That the taking of the property be coupled with violence against or

intimidation of any person, or with the use of force upon things.

The crime of robbery or theft is not present where there is no intent to gain or
animus lucrandi. The crime may be grave or light coercion.

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The intent to gain is an internal act, it can still be established through the overt acts
of the offender, and is presumed from the proven unlawful taking. (People vs.
Mejares, G.R. No. 225735, January 10, 2018, 850 SCRA 480, 491.)

Consummation of the Crime – No Frustrated Theft or Robbery

Robbery and theft are consummated by the mere taking of the personal property. In
discussing this matter, the Supreme Court had occasion to declare that there can be
no crime of frustrated theft or frustrated robbery since the crime is consummated
by the taking of the thing.

In People of the Philippines vs. Avila, the Supreme Court ruled:

“x x x [T]he most fundamental notion in the crime of theft is the taking of the
thing to be appropriated into the physical power of the thief, which idea is
qualified by other conditions, such as that the taking must be effected animo
lucrandi and without the consent of the owner; and it will be here noted that
the definition does not require that the taking should be effected against the
will of the owner but merely that it should be without his consent, a
distinction of no slight importance.

And then in Valenzuela vs. People of the Philippines, the Supreme Court discussed
why theft (or robbery) cannot be frustrated:

“Insofar as we consider the present question, "unlawful taking" is most

material in this respect. Unlawful taking, which is the deprivation of one's
personal property, is the element which produces the felony in its
consummated stage. At the same time, without unlawful taking as an act of
execution, the offense could only be attempted theft, if at all. With these
considerations, we can only conclude that under Article 308 of the Revised
Penal Code, theft cannot have a frustrated stage. Theft can only be attempted
or consummated.

xxx

The presumed inability of the offenders to freely dispose of the stolen

property does not negate the fact that the owners have already been deprived
of their right to possession upon the completion of the taking.

xxx

Moreover, as is evident in this case, the adoption of the rule that the inability
of the offender to freely dispose of the stolen property frustrates the theft -
would introduce a convenient defense for the accused which does not reflect
any legislated intent, since the Court would have carved a viable means for
offenders to seek a mitigated penalty under applied circumstances that do not
admit of easy classification. It is difficult to formulate definite standards as to
when a stolen item is susceptible to free disposal by the thief.”

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Robbery

Robbery is the unlawful taking of personal property belonging to another, by means

of violence against or intimidation of any person, or using force upon anything.

Robbery with Violence against or Intimidation of Persons

For there to be a charge of robbery with violence, it is necessary that acts of violence
be committed upon the person of the victim for the furtherance of or to facilitate the
unlawful taking of personal property. The acts of violence being contemplated may
involve acts which when committed by themselves without unlawful taking, would
constitute a crime against persons.

Robbery with violence is a special complex crime. Its nomenclature requires that the
exact act of violence be identified as a means to commit the robbery, thus:

1. Robbery with homicide;

Article 294 paragraph 1 defines and punishes robbery with homicide:

“ARTICLE 294. Robbery with Violence Against or Intimidation of

Persons — Penalties. — Any person guilty of robbery with the use of
violence against or intimidation of any person shall suffer:

1. The penalty of reclusión perpetua to death, when by reason or

on occasion of the robbery, the crime of homicide shall have
been committed.

x x x”

Where a person is killed by reason of or on occasion of the robbery, the crime

for which the offender must be charged is robbery with homicide. It is
essential that the robbery must be consummated. Otherwise, there will be
separate crimes of attempted robbery and homicide or murder, as the case
may be.

The person killed may be the victim, a fellow robber, a bystander or any other
person whose death was by reason of or the occasion of the robbery. This is so
because the definition of robbery with homicide under Article 294(1) states,
“…when by reason or on occasion of the robbery, the crime of homicide shall
have been committed.” A reading of the statement shows that for as long as
the crime of homicide was committed by reason of or on occasion of the
robbery, the crime of robbery with homicide is present.

Homicide, as used in the law

The term “homicide” must be used in its generic sense – which is the unlawful
killing of the victim, whether the killing was intentional or culpable, or

154
whether the killing was attended to by any of the qualifying aggravating
circumstances which would normally qualify the killing to murder.

Thus, where the robber killed his victim without any intent to do so, the crime
committed is robbery with homicide, not robbery with reckless imprudence
resulting in homicide.

In People v. Domingo, the victim, a septuagenarian, died because of a stroke

suffered by him due to the extreme fear when the robbers pointed their guns
at him. The Supreme Court held that the crime committed was robbery with
homicide. It was immaterial that death was unintended for as long as the
homicide was produced by reason or on the occasion of the robbery, because
it is only the result which matters, without reference to the circumstances or
causes or persons intervening in the commission of the crime which must be
considered.

Where a robber killed his fellow robber by treachery, the crime committed is
still robbery with homicide, not robbery with murder.

Where on the occasion of the robbery, three (3) people are killed, the crime is
still robbery with homicide. The killing of the other two (2) victims are not to
be treated as separate crimes but shall be considered as aggravating
circumstances for the maximum imposition of the penalty.

In People v. Quiñones, the Supreme Court held that there is no crime of

robbery with multiple homicides. The correct charge should be for robbery
with homicide only because the number of persons killed is immaterial and it
does not increase the penalty as prescribed by Article 294. All the killings are
merged in the composite integrated whole that is robbery with homicide so
long as the killings were by reason or on occasion of the robbery. (Ortega,
2011)

If on the occasion of the robbery, homicide and physical injuries are inflicted
against separate persons, the crime is robbery with homicide, with the
physical injuries being treated as an aggravating circumstance.

The Primary Purpose of the Crime must be

to Take Personal Property Belonging to Another

For there to be robbery with homicide (and for any of the succeeding cases),
the primary purpose of the offender in committing a crime must be to take
personal property belonging to another. Otherwise stated, the intent to rob
must precede the intent to kill or to inflict injury, if any at all.

If in case the offender intended to kill his victim first (or inflict other injuries)
and then thereafter took personal property, the crime is not robbery with
homicide since the killing was not by reason of or on the occasion of the
robbery. The crimes committed are homicide or murder on one hand and
theft or robbery on the other, as the case may be.

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 In case of Conspiracy

The rule in conspiracy is that the criminal liability of one conspirator is the
same liability for all other conspirators. Thus, even if only one of the robbers
committed homicide on the occasion of or by reason of the robbery, all
robbers are liable for robbery with homicide unless they can prove by
evidence that they attempted to stop the killer from killing the victim, or that
they disagreed with the intention to kill the victim.

2. Robbery with rape;

Robbery with rape is contemplated in Article 294, paragraph 2 which states:

“ARTICLE 294. Robbery with Violence Against or Intimidation of

Persons — Penalties. — Any person guilty of robbery with the use of
violence against or intimidation of any person shall suffer:

xxx

2. The penalty of reclusión temporal in its medium period to

reclusión perpetua, when the robbery shall have been accompanied by
rape… x x x”

The crime of robbery with rape is present only where both robbery and rape
were consummated.

The nature of rape as committed in robbery is the same “rape” as discussed in

R.A. 8353 and jurisprudence regarding the impossibility of a case for
frustrated rape. However, notable principles must be considered:

Robbery with Rape is a Crime against Property

While rape is a crime against persons pursuant to R.A. 8353, it becomes a

component of robbery, being a crime against property where the original
intent of the offender must be to rob the victim.

The principles on pardon by the offended party also do not apply such that
where the robber marries his victim after the consummated rape, he is not
exonerated from any crime because under present law, pardon does not
extinguish criminal liability for robbery. The case is different where the rape
is only attempted. Pardon may exonerate the offender because there being no
consummated act of rape, the attempted rape remains to be a crime against
persons and there is no crime of robbery with attempted rape.

Intent to Rob must Precede the Intent to Rape

The offender must have the primary intention to rob the victim where the
intent to rape may have existed as an afterthought, or of a lesser intent. If the

156
offender intended to rape the victim first and then, committed robbery, there
is no robbery with rape. The crimes committed would be rape and robbery as
separate charges. It does not matter whether the rape was committed before,
during or after the robbery. For as long as rape accompanied the crime of
robbery, the crime of robbery with rape is present.

In People v. Flores, although the offenders’ plan was to get the victim’s money,
rape her and kill her, but in the actual execution of the crime, the thoughts of
depriving the victim of her valuables was relegated to the background and the
offender’s prurient desires surfaced. They persisted in satisfying their lust.
They would have forgotten about their intent to rob if not for the accidental
touching of the victim’s ring and wristwatch. The taking of the victim’s
valuables turned out to be an afterthought. It was held that two distinct
crimes were committed: rape with homicide and theft.

In People v. Dinola, it was held that if the original criminal design of the
accused was to commit rape and after committing the rape, the accused
committed robbery because the opportunity presented itself, two distinct
crimes – rape and robbery were committed – not robbery with rape. In the
latter, the criminal intent to gain must precede the intent to rape.

In case of Multiple Rapes

The rule is the same where there are multiple rape victims, where the crime
committed is robbery with rape and the other cases of rape shall be treated as
aggravating circumstances.

Where Homicide and Rape were Committed with the Robbery

But in the case where on the occasion of the robbery, the victim was raped
and then killed, the crime committed is robbery with homicide, aggravated by
the commission of rape.

In People of the Philippines vs. Aspili, et.al., the Supreme Court explained:

“The overwhelming evidence reveals that the original design of the

malefactors was to commit robbery in order to facilitate their escape
from the penal colony. Their original intent did not comprehend the
commission of rape. Hence, the crime of rape cannot be regarded as the
principal offense. In this case, since it attended the commission of
robbery with homicide, the rape is deemed to aggravate the crime but
damages or indemnification for the victim may be awarded. (People v.
Bacsa, 104 Phil. 136 [1958]; People v. Tapales, 93 SCRA 134 [1979]).
Instead of ignominy, it is the rape itself that aggravates the crime
(People v. Mongado, 28 SCRA 642 [1969]).

With respect to the deaths of Daisy Gonzales and Yolanda Arque, the
appellants are clearly liable therefor since, as held by this Court in

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 People v. Mangulabnan, (99 Phil. 992 [1956]) it is immaterial that the
death of a person supervened by mere accident, provided that the
homicide is produced by reason or on occasion of the robbery.

Since rape and homicide co-exist in the commission of robbery, the

offense committed by the appellants is the special complex crime of
robbery with homicide, aggravated by rape, punishable under
Paragraph 1 of Article 294 of the Revised Penal Code (RPC). It does not
matter if the technical name assigned to the offense is rape with
homicide and with robbery in band, for the real nature of the crime
charged is determined not by the title of the complaint, nor by the
specification of the provision of the law alleged to have been violated,
but by the facts recited in the complaint or information. (People v.
Oliviera, 67 Phil. 427 [1939]) As the acts constituting robbery with
homicide were clearly set forth in the complaint and proven during
trial, then the appellants may be held liable for such crime, regardless
of the erroneous designation of the offense.

With the foregoing pronouncements, the Court no longer deems it

necessary to deal with the appellants’ argument in their first
assignment of error that assuming arguendo that they are guilty of
committing rape, the crimes of rape and homicide should be viewed as
separate and distinct offenses. We have already ruled that the crime
committed is the special complex crime of robbery with homicide, the
rape being considered merely as an aggravating circumstance.”

3. Robbery with Physical Injuries;

For robbery with physical injuries to be punishable, the physical injuries

should have been inflicted by reason of or on occasion of the robbery.

Article 294 on robbery states:

“ARTICLE 294. Robbery with Violence Against or Intimidation of

Persons — Penalties. — Any person guilty of robbery with the use of
violence against or intimidation of any person shall suffer:

xxx

2. The penalty of reclusión temporal in its medium period to

reclusión perpetua, when the robbery shall have been
accompanied by rape or intentional mutilation, or if by reason or
on occasion of such robbery, any of the physical injuries
penalized in subdivision 1 of article 263 shall have been inflicted,
or the person robbed shall have been held for ransom or
deprived of his liberty for more than one day.

3. The penalty of reclusión temporal, when by reason or on

occasion of the robbery, any of the physical injuries penalized in

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 subdivision 2 of the article mentioned in the next preceding
paragraph, shall have been inflicted.

4. The penalty of prisión mayor in its medium period to

reclusión temporal in its medium period, if the violence or
intimidation employed in the commission of the robbery shall
have been carried to a degree clearly unnecessary for the
commission of the crime, or when in the course of its execution,
the offender shall have inflicted upon any person not responsible
for its commission any of the physical injuries covered by
subdivisions 3 and 4 of said Article 263.

5. The penalty of prisión correccional to prisión mayor in its

medium period in other cases.”

Normally, physical injuries are absorbed in the crime of robbery. But where the
degree of the injuries constitutes serious physical injuries, the crime committed is
robbery with physical injuries. This is because the crime of robbery with physical
injuries involves subdivisions 1, 2, 3 and 4 of Article 263, with intentional mutilation
under Article 262 which all refer to the crime of serious physical injuries.

Where the degree of the injuries inflicted is less serious or even slight physical
injuries, these are absorbed as elements in the crime of robbery and as such, may be
punished under paragraph 5 of Article 294 along with robbery with intimidation.
The case of Ablaza vs. People of the Philippines explains:

“Accordingly, the phrase 'by means of violence against or intimidation of

persons' in Article 312 must be construed to refer to the same phrase used in
Article 94. There are five classes of robbery under the latter, namely: (a)
robbery with homicide (par. 1); (b) robbery with rape, intentional mutilation,
or the physical injuries penalized in subdivision 1 of Article 263 (par. 2); (c)
robbery with physical injuries penalized in subdivision 2 of Article 263 (par.
3); (d) robbery committed with unnecessary violence or with physical
injuries covered by subdivisions 3 and 4 of Article 263 par. 4); and (e) robbery
in other cases, or simply robbery (par. 5), where the violence against or
intimidation of persons cannot be subsumed by, or where it is not sufficiently
specified so as to fall under, the first four paragraphs.

Paragraphs one to four or Article 294 indisputably involve the use of violence
against persons. The actual physical force inflicted results in death, rape,
mutilation or the physical injuries therein enumerated. The simple robbery
under paragraph five may cover physical injuries not included in paragraphs
two to four. Thus, when less serious physical injuries or slight physical
injuries are inflicted upon the offended party on the occasion of a robbery, the
accused may be prosecuted for and convicted of robbery under paragraph
five.”

Robbery with Physical Injuries, Committed in an Uninhabited Place and by a

Band – Aggravating Circumstances

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The commission of robbery with physical injuries under any of the following
circumstances causes the penalty to be imposed in its maximum period:

1. When committed in an uninhabited place;

Being an aggravating circumstance, an “uninhabited place” refers to a

place or location where immediate help or rescue is not available.

2. When committed by a band or a cuadrilla;

Under Article 296, when more than three armed malefactors take part
in the commission of a robbery, it shall be deemed to have been
committed by a band. The concept of being “armed” does not require
that the robbers be in possession of firearms or bladed objects. The use
of any object used to inflict injury or damage qualify as being armed.

3. By attacking a moving train, street car, motor vehicle or airship;

4. By entering the passenger’s compartments in a train; or

5. In any manner, taking the passengers thereof by surprise in the respective

conveyances.

Brigandage

Presidential Decree No. 532 defines highway robbery, also known as brigandage as:

“Highway Robbery/Brigandage. The seizure of any person for ransom, extortion or

other unlawful purposes, or the taking away of the property of another by means of
violence against or intimidation of person or force upon things of other unlawful
means, committed by any person on any Philippine Highway.

The same law provides for the penalty for the principals and accomplices to the
crime of brigandage:

The penalty of reclusion temporal in its minimum period shall be imposed. If

physical injuries or other crimes are committed during or on the occasion of the
commission of robbery or brigandage, the penalty of reclusion temporal in its
medium and maximum periods shall be imposed. If kidnapping for ransom or
extortion, or murder or homicide, or rape is committed as a result or on the occasion
thereof, the penalty of death shall be imposed.

Any person who knowingly and in any manner aids or protects pirates or highway
robbers/brigands, such as giving them information about the movement of police or
other peace officers of the government, or acquires or receives property taken by
such pirates or brigands or in any manner derives any benefit therefrom; or any
person who directly or indirectly abets the commission of piracy or highway
robbery or brigandage, shall be considered as an accomplice of the principal

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offenders and be punished in accordance with the Rules prescribed by the Revised
Penal Code.”

Robbery with Force upon Things

Robbery with force upon things involve the use of violence against property or by an
unlawful entry into houses or other buildings.

The crime is punishable by reclusion temporal and may be committed under any of
the following circumstances:

1. Any person who shall commit robbery in an inhabited OR uninhabited house

or public OR private building or edifice devoted to religious worship, or any of
their dependencies where they enter the place:

a. Through an opening not intended for entrance or egress;

b. By breaking any wall, roof, or floor or breaking any door or window;

c. By using false keys, picklocks or similar tools; or

d. By using any fictitious name or pretending the exercise of public

authority.

An “inhabited house” means any shelter, ship or vessel constituting the

dwelling of one or more persons, even though the inhabitants thereof shall
temporarily be absent therefrom when the robbery is committed. All
interior courts, corrals, warehouses, granaries, barns, coach-houses,
stables or other departments or enclosed places contiguous to the building
or edifice, having an interior entrance connected therewith, and which
form part of the whole, shall be deemed dependencies of an inhabited
house, public building or building dedicated to religious worship.

Orchards and other lands used for cultivation or production are not
included in the terms of the next preceding paragraph, even if closed,
contiguous to the building and having direct connection therewith.

The term “public building” includes every building owned by the

Government or belonging to a private person but used or rented by the
Government, although temporarily unoccupied by the same.

The phrase, “enter the place” refers to a robber actually entering the place
where the robbery is committed. This means having their entire body
within the place to be robbed. If any part of their body is outside the place,
the robber cannot be said to have “entered” the place such that the crime
would only be theft, not robbery.

2. Any person who shall commit robbery in an inhabited OR uninhabited house

or public OR private building or edifice devoted to religious worship, or any of

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 their dependencies, where the robbery is committed under any of the
following circumstances:

a. By the breaking of doors, wardrobes, chests, or any other kind of locked

or sealed furniture or receptacle; or

b. By taking such furniture or objects away to be broken or forced open

outside the place of the robbery.

A vehicle is not among those places or structures enumerated by the law

for which robbery with force upon things may be committed. Thus, an act
of taking personal property through ”bukas-kotse” or by unlawfully
opening a vehicle only constitutes theft, not robbery, even if the window or
door of the vehicle be broken.

Effects of Certain Circumstances (As amended by Republic Act No. 10952)

i. If the robbers in the foregoing are armed, their penalty shall

be imposed in the next higher degree, or reclusion perpetua;

ii. When the offenders do not carry arms, and the value of the
property taken exceeds Fifty thousand pesos (P50,000); or
the offenders are armed but the value of the property taken
does not exceed Fifty thousand pesos (P50,000), the penalty
next lower in degree - prision mayor, shall be imposed;

iii. When said offenders do not carry arms and the value of the
property taken does not exceed Fifty thousand pesos
(P50,000), they shall suffer the penalty prescribed in the two
(2) next preceding paragraphs – prision mayor, in its
minimum period;

iv. If the robbery is committed in one of the dependencies of an

inhabited house, public building, or building dedicated to
religious worship, the penalties next lower in degree than
those prescribed in this article shall be imposed;

v. If the robbery is committed in an uninhabited place or by a

band, the maximum of the penalty shall be imposed.

Possession of Picklocks and Similar Tools

The possession of picklocks, false keys, or similar tools especially adapted to the
commission of the crime of robbery without lawful cause, or the creation thereof, is
punishable by law.

The term “false keys” are deemed to include:

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 1. The tools mentioned – picklocks, or similar tools especially adapted to the
commission of robbery;

2. Genuine keys stolen from the owner; or

3. Any keys other than those intended by the owner for use in the lock forcibly
opened by the offender.

Theft

Theft is the unlawful taking of personal property belonging to another with animus
lucrandi, against the owner’s consent, and without the attending circumstances of
violence, intimidation or force upon things.

Article 308 describes the crime:

“ARTICLE 308. Who are Liable for Theft. — Theft is committed by any person
who, with intent to gain but without violence against or intimidation of
persons nor force upon things, shall take personal property of another
without the latter’s consent.”

While Article 308 gives a simple and basic definition of the crime, the same article
provides other ways by which the crime may be committed, thus:

1. Any person who, having found lost property, shall fail to deliver the same to
the local authorities or to its owner;

This presents a situation where a person may be liable for theft after
finding personal property and failing to return it or to deliver it to the
local authorities for proper disposition.

The reason why Philippine laws do not recognize the idea of “finders-
keepers” is that the act is actually punishable by law. More so, the act
falls squarely under the definition of theft.

2. Any person who, after having maliciously damaged the property of another,
shall remove or make use of the fruits or object of the damage caused by him;
and

3. Any person who shall enter an enclosed estate or a field where trespass is
forbidden or which belongs to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather fruits, cereals, or other forest
or farm products.

Qualified Theft

Theft is qualified when it is committed under any of the following circumstances:

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 1. If the crime is committed by a domestic servant against the personal property
of their employer or any member of their family;

2. If the crime is committed with grave abuse of confidence;

3. If the article stolen consists of coconuts or fish taken from a fishpond or

nursery.

The taking of “large cattle” was previously defined and punished as qualified theft
under Article 310. When Presidential Decree No. 533 was enacted, the crime of
cattle rustling was separated from qualified theft. The law states:

“Cattle rustling is the taking away by any means, method or scheme, without
the consent of the owner/raiser, of any large cattle whether or not for profit
or gain, or whether committed with or without violence against or
intimidation of any person or force upon things. It includes the killing of large
cattle, or taking its meat or hide without the consent of the owner/raiser.”

In support of the definition of cattle rustling, “large cattle” includes the cow, carabao,
horse, mule, ass, or other domesticated member of the bovine family.

Presumption of Theft

It is a rule established by an abundance of jurisprudence, when stolen property is

found in the possession of one, not the owner, without a satisfactory explanation of
his possession, that he will be presumed to be the thief. (U. S. vs. Soriano Santillan, 9
Phil. Rep., 445.)

Presumption of Cattle Rustling

Any person, partnership, association, corporation or entity desiring to ship or

transport large cattle, its hides, or meat, from one province to another shall secure a
permit for such purpose from the Police Provincial Commander of the province
where the large cattle is registered. Before issuance of the permit herein prescribed,
the Provincial Commander shall require the submission of the certificate of
ownership, a certification from the Provincial Veterinarian to the effect that such
large cattle, hides or meat are free from any disease; and such other documents or
records as may be necessary. Shipment of large cattle, its hides or meat from one
city/municipality to another within the same province may be done upon securing
permit from the city/municipal treasurer of the place of origin.

Every person having in his possession, control or custody of large cattle shall, upon
demand by competent authorities, exhibit the documents stated above. Failure to
exhibit the required documents shall be prima facie evidence that the large cattle in
his possession, control or custody are the fruits of the crime of cattle rustling.

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On the Presumption of the Intention to Gain in Robbery and Theft

For there to be robbery or theft the essential requisite to be proven is the intention
to gain, or animus lucrandi. While intention to be proven requires evidence, the law
presumes that a thing was taken with intent to gain if the thing is useful or
possessed of value and was taken under unlawful circumstances.

In People of the Philippines vs. Mercado, it was stated that “the intent to gain is the
usual motive to be presumed from all furtive taking of useful property appertaining
to another, unless special circumstances reveal a different intent on the part of the
perpetrator.”

PRESIDENTIAL DECREE No. 1612

The Anti-Fencing Law of 1979

“Fencing” is the act of any person who, with intent to gain for himself or for another,
shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and
sell, or in any other manner deal in any article, item, object or anything of value
which he knows, or should be known to him, to have been derived from the proceeds
of the crime of robbery or theft.

Any person, whether natural or juridical who engages in the act of fencing, is known
as a “fence.”

A comparison between the crime of fencing and theft or robbery shows that those
who are liable as fences are also liable as accessories to the crime of theft or robbery.

To recall:

“ARTICLE 19. Accessories. — Accessories are those who, having knowledge of

the commission of the crime, and without having participated therein, either
as principals or accomplices, take part subsequent to its commission in any of
the following manners:

1. By profiting themselves or assisting the offender to profit by the

effects of the crime;

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 x x x”

The usual question is when a person performs acts consistent with being an
accessory to robbery or theft on one hand and fencing on another, for what crime
will that person be charged?

The Supreme Court resoled the issue in Cahulogan vs. People of the Philippines:

“At this point, the Court notes that as may be gleaned from its whereas
clauses, PD 1612 was enacted in order to provide harsher penalties to those
who would acquire properties which are proceeds of the crimes of Robbery or
Theft, who prior to the enactment of said law, were punished merely as
accessories after the fact of the said crimes. This rationale was echoed in
Dizon-Pamintuan v. People where the Court held that while a Fence may be
prosecuted either as an accessory of Robbery/Theft or a principal for Fencing,
there is a preference for the prosecution of the latter as it provides for harsher
penalties:

Before P.D. No. 1612, a fence could only be prosecuted for and held liable as an
accessory, as the term is defined in Article 19 of the Revised Penal Code. The penalty
applicable to an accessory is obviously light under the rules prescribed in Articles
53, 55, and 57 of the Revised Penal Code, subject to the qualification set forth in
Article 60 thereof. Noting, however, the reports from law enforcement agencies that
"there is rampant robbery and thievery of government and private properties" and
that "such robbery and thievery have become profitable on the part of the lawless
elements because of the existence of ready buyers, commonly known as fence, of
stolen properties," P.D. No. 1612 was enacted to "impose heavy penalties on persons
who profit by the effects of the crimes of robbery and theft."

Evidently, the accessory in the crimes of robbery and theft could be prosecuted as
such under the Revised Penal Code or under P.D. No. 1612. However, in the latter
case, he ceases to be a mere accessory but becomes a principal in the crime of
fencing. Elsewise stated, the crimes of robbery and theft, on the one hand, and
fencing, on the other, are separate and distinct offenses. The state may thus choose
to prosecute him either under the Revised Penal Code or P.D. No. 1612, although the
preference for the latter would seem inevitable considering that fencing is a malum
prohibitum, and P.D. No. 1612 creates a presumption of fencing and prescribes a
higher penalty based on the value of the property.”

Estafa

Estafa, also known as “swindling” is any act of defrauding another resulting to

damage or loss. While the Civil Code provides remedies for annulment of contracts
whenever the perfection of the agreement is attended to by fraud, the criminal
aspect involves a charge for estafa.

Article 315 provides for the manner by which estafa is committed:

1. With unfaithfulness or abuse of confidence, namely:

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a. By altering the substance, quantity, or quality of anything of value
which the offender shall deliver by virtue of an obligation to do so, even
though such obligation be based on an immoral or illegal consideration;

The obligation to deliver a thing includes the obligation to

deliver the thing with an agreed quality, quantity and substance,
or composition. Where there is no agreement for the delivery of
a different thing, or a thing of a different substance, quality or
quality, the violation of the agreement does not normally bring
with it criminal liability for estafa although the party at fault may
be civilly-liable for breach of contract with damages.

But when the breach of the agreement was coupled with an

intention to defraud on the part of the party at fault, there arises
now a criminal liability for estafa. For this purpose the following
must be proved:

i. That there is an agreement for the delivery of a particular

thing of a particular substance, quality or quantity;

ii. That the offending party does not deliver the thing as
agreed upon;

iii. That the failure by the offending party to deliver the thing
as agreed is coupled with an intention to defraud the
other party; and

iv. That the other party suffered damage by reason of the

fraud.

The liability for estafa attaches even when the obligation is based
on an immoral or illegal consideration.

Under the Civil Code the illegality or immorality of the

consideration results to a contract becoming void ab initio. But
while the Civil Code does not provide any remedy for the
contracting parties in case of a void contract since the same
cannot be lawfully enforced or consummated by will or by
demand, where there is fraud the offended party has the right to
initiate criminal action for estafa. This is because criminal
liability arises from the fact of fraud, not from the validity or
invalidity of a contract.

Illustration 1: On the basis of a contract of sale, Jose was

to deliver to Jacinto two hundred (200) 25kg bags of
imported Japanese rice costing Php1,800.00 per bag.
Instead of delivering the goods as agreed, Jose delivered to
Jacinto 200 bags of local jasmine rice costing Php1,200.00
per bag, which were re-packed into bags bearing marks
that make it appear that the rice contained is imported

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 Japanese rice and required payment in an amount
pertaining to the imported Japanese rice, which Jacinto
paid.

Illustration 2: On the basis of a contract of sale, Jose was

to deliver to Jacinto two hundred (200) 25kg bags of
imported Japanese rice costing Php1,800.00 per bag.
Instead of delivering the goods as agreed, Jose delivered to
Jacinto 199 bags of the imported Japanese rice, and
required payment in an amount pertaining to the
imported Japanese rice, which Jacinto paid.

If the fact of fraud on Jose’s part is proven, estafa was

committed by him. However, if Jose is able to prove good
faith as a defense, and that the discrepancy was due to an
honest mistake, Jose will not be criminally liable although
he will be civilly-liable to complete the delivery.

b. By misappropriating or converting, to the prejudice of another,

money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or
under any other obligation involving the duty to make delivery of
or to return the same, even though such obligation be totally or
partially guaranteed by a bond; or by denying having received
such money, goods, or other property.

Where a person is entrusted with money, goods or any

other personal property, a trust relationship is created
between the parties, now known as the “trustor” and the
“trustee.” As a consequence, juridical possession over the
thing is transferred from the trustor to the trustee, who
now possesses the right to lawfully possess the thing
subject to the authority of the trustor. This trust
relationship binds the trustee to hold, possess or
administer the property entrusted by the trustor strictly
according to the instructions of the latter and subject to
the latter’s authority to demand its return, delivery or
accounting.

The character of estafa as committed here involves a

violation of the trust reposed by the trustor in favor of the
trustee, where the latter fails to abide by the trust
relationship to the damage and prejudice of the trustor or
of the person in whose favor the trust was created.

Illustration 1: Jose tasked Jacinto with the amount

of Php1,500,000.00 for the payment of his
obligation to Javier, and promised to pay Jacinto
Php 2,000.00 for the task. Per Jose’s instruction,

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 Jacinto was to deposit the money in Javier’s bank
account. Instead of complying with Jose’s
instruction, Jacinto deposited Php1,000,000.00 in
Javier’s account and spent Php500,000.00 in a
casino.

Illustration 2: Jose entrusted Jacinto with his

pistol, a Colt 1911 Series 70 chambered in .45ACP
in consideration of a Php 200 per day deposit fee.
Per Jose’s instruction the pistol was to be kept in
Jacinto’s vault for the duration of Jose’s work
abroad, and to be returned upon Jose’s demand.

Instead of keeping the pistol as instructed, Jacinto

sold the pistol to Javier and declared that the pistol
was stolen.

Illustration 3: Jose rented Jacinto’s car for a 2-day

trip to Ilocos Norte. Upon arriving in Laoag City,
Jose sold Jacinto’s car to Javier. Jose is liable for
estafa, not carnapping because of the fact that when
he rented Jacinto’s car, juridical possession over the
vehicle was transferred to him which entitles him to
possess it subject to Jacinto’s authority.

The case is different if Jose took Jacinto’s car

without the latter’s knowledge and sold it to Javier.
In this case, Jose committed carnapping, not estafa.

In Tria v. People, the Supreme Court defined “conversion” or

“misappropriation” as follows:

“The words "convert" and "misappropriate" connote the

act of using or disposing of another's property as if it were
one's own, or of devoting it to a purpose or use different
from that agreed upon. To misappropriate for one's own
use includes not only conversion to one's personal
advantage, but also every attempt to dispose of the
property of another without right.”

Thus, to “convert” or to “misappropriate” invariably

requires that the offender used or disposed the property
as if it were his own or devoted the same to an entirely
different purpose than that agreed upon.

To constitute estafa through misappropriation, the respondent

must have material and juridical possession over the money.
Thus, in Libunao vs. People of the Philippines, the Supreme Court,
citing Cristeta Chua-Burce vs. Court of Appeals, declared:

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 “To be convicted of Estafa through misappropriation or
conversion, it is necessary that the offender had both
material and juridical possession of the money, goods, or
other personal properties he misappropriated. As held in
the case of Cristeta Chua-Burce v. Court of Appeals, when
the money, goods, or any other personal property is
received by the offender from the offended party (1) in
trust or (2) on commission or (3) for administration, the
offender acquires both material or physical possession
and juridical possession of the thing received. Juridical
possession means possession which gives the transferee a
right over the thing which the transferee may set up even
against the owner.”

To illustrate the concept of juridical possession, the Supreme

Court declared in Balerta vs. People of the Philippines:

“In the subsequent case of Guzman v. Court of Appeals, a

travelling sales agent misappropriated or failed to return
to his principal the proceeds of things or goods he was
commissioned or authorized to sell. He was, however,
found liable for estafa under Article 315 (1) (b) of the
Revised Penal Code, and not qualified theft. In the Guzman
case, we explained the distinction between possession of a
bank teller and an agent for purposes of determining
criminal liability – "The case cited by the Court of Appeals
(People vs. Locson, 57 Phil. 325), in support of its theory
that appellant only had the material possession of the
merchandise he was selling for his principal, or their
proceeds, is not in point. In said case, the receiving teller
of a bank who misappropriated money received by him for
the bank, was held guilty of qualified theft on the theory
that the possession of the teller is the possession of the
bank. There is an essential distinction between the
possession by a receiving teller of funds received from
third persons paid to the bank, and an agent who receives
the proceeds of sales of merchandise delivered to him in
agency by his principal. In the former case, payment by
third persons to the teller is payment to the bank itself;
the teller is a mere custodian or keeper of the funds
received, and has no independent right or title to retain or
possess the same as against the bank. An agent, on the
other hand, can even assert, as against his own principal,
an independent, autonomous, right to retain money or
goods received in consequence of the agency; as when the
principal fails to reimburse him for advances he has made,
and indemnify him for damages suffered without his
fault.”

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 c. By taking undue advantage of the signature of the offended party
in blank, and by writing any document above such signature in
blank, to the prejudice of the offended party or any third person.

A “signature in blank” is a signature placed by a person

without stating any intention as to its purpose. The fraud
is committed when that signature is taken advantage of to
the prejudice of the owner of the signature or any third
person.

Illustration 1: Jose placed his signature on a blank

sheet of paper and instructed his secretary, Jacinto
to prepare above it a promissory note to the effect
that he owed Javier the amount of Php100,000.00.
Instead of writing the promissory note as
instructed Jacinto wrote his own name over that of
Javier’s, making it appear that Jose owed him the
money.

Illustration 2: Jose delivered to Jacinto a check

which he signed and dated but did not indicate the
amount payable. He instructed Jacinto to write
“Php10,000.00” representing the amount he was
obligated to pay Jacinto. Instead of complying as
instructed, Jacinto wrote Php15,000.00 and then
encashed the check.

2. By means of any of the following false pretenses or fraudulent acts executed

prior to or simultaneously with the commission of the fraud:

a. By using fictitious name, or falsely pretending to possess power,

influence, qualifications, property, credit, agency, business or imaginary
transactions, or by means of other similar deceits.

This is without prejudice to possible criminal liability for

usurpation of authority, if applicable. The reason for the separate
criminal liability is that the performance of any public function
under false pretense is punishable as usurpation of official
functions. If there is fraud involved, the fraud is punishable as
estafa.

Illustration 1: Jose falsely represented himself to be the

member of a group gathering cash donations for calamity
victims. On the basis of that false representation, Jacinto
donated Php1,000.00.

Illustration 2: Making it appear that he owned several

pieces of real property that can secure his loan, Jose
borrowed Php4,000,000.00 from Jacinto and delivered

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 falsified Certificates of Title of lands which were
nonexistent. Jose is liable for estafa through falsification of
public documents because the falsification of the
certificates of title was a necessary means for him to
commit estafa.

b. By altering the quality, fineness or weight of anything pertaining to his

art or business.

Illustration 1: Jose sold a dining table set to Jacinto for

Php130,000.00, representing that narra wood was used
for the set. Unknown to Jacinto, Jose used molave wood,
not narra.

Illustration 2: Jose, a market vendor offered to Jacinto a

box of strawberries which he claimed were fresh,
undamaged and newly harvested. Jacinto bought a box
and upon arriving home, saw that several strawberries on
the bottom of the box were rotten, overripe and with
molds.

Illustration 3: Jose offered a second-hand car for sale to

Jacinto. On Jacinto’s query, Jose assured him that the car
was not flooded nor was it damaged in any way. On that
assurance, Jacinto bought the car, only to realize after a
week that the car was submerged in a flood in Marikina
City several weeks before.

c. By pretending to have bribed any Government employee, without

prejudice to the action for calumny which the offended party may deem
proper to bring against the offender. In this case, the offender shall be
punished by the maximum period of the penalty.

An action for calumny is an action for redress by reason of

defamatory words uttered against the offended party. This is
particularly true where a person claims to have bribed a public
officer, when such was not the case.

Illustration: Atty. Jose billed his client Joselito

Php65,000.00, stating that the amount must be delivered
as soon as possible as he had already promised to deliver
Php40,000.00 to Judge Jacinto and Php25,000.00 to
Prosecutor Javier in exchange for an acquittal in a criminal
case Atty. Jose was defending for Joselito. In truth, Judge
Jacinto already dismissed the criminal case on the ground
of double jeopardy, without objection from Prosecutor
Javier such that Atty. Jose intended to keep the money for
himself.

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 Aside from Atty. Jose’s liability for estafa, he is also liable
for the imputation of bribery he stated as against Judge
Jacinto and Prosecutor Javier. He will also be
administratively liable for violation of the Code of
Professional Responsibility.

d. By post-dating a check, or issuing such check in payment of an

obligation, the offender knowing that at the time he had no funds in the
bank, or the funds deposited by him in the bank were not sufficient to
cover the amount of the check, and without informing the payee of such
circumstances.

It has been settled in jurisprudence that in the above-defined

form of estafa, it is not the nonpayment of a debt which is made
punishable, but the criminal fraud or deceit in the issuance of a
check. (Batac vs. People of the Philippines, G.R. No. 191622, June 6,
2018.)

In People vs. Reyes, the Court ruled that for estafa under the
above provision to prosper, the issuance of the check must have
been the inducement for the other party to part with his money
or property, viz:

“To constitute estafa under this provision, the act of

postdating or issuing a check in payment of an obligation
must be the efficient cause of the defraudation; as such, it
should be either prior to or simultaneous with the act of
fraud. The offender must be able to obtain money or
property from the offended party because of the issuance
of the check, whether postdated or not. It must be shown
that the person to whom the check was delivered would
not have parted with his money or property were it not
for the issuance of the check by the other party. Stated
otherwise, the check should have been issued as an
inducement for the surrender by the party deceived of his
money or property and not in payment of a pre-existing
obligation.”

BATAS PAMBANSA BLG. 22 - The Anti-Bouncing Checks Law

A “bouncing check” is a check made, drawn or issued by any

person to apply on account or for value which upon presentment
is dishonored by the drawee bank for insufficiency of funds or
credit.

Under B.P. 22, the following acts are prohibited:

i. Issuance of a check knowing that the check will be

dishonored upon presentment;

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 ii. Failure to maintain sufficient funds to cover an issued
check once it is presented on maturity;

iii. Issuance of a check but subsequently ordering a stop

payment therefor without valid reason.

The Transaction

A check is a negotiable instrument issued by the payor in favor of a

payee to facilitate the payment of money for an obligation. The drawer
(that person who issues the check) delivers the check to the payee (that
person entitled to receive payment) and to claim payment the payee
presents it to the drawee bank for encashment or deposit, as the case
may be.
The issuance of a bouncing check erodes the confidence of the
transacting public on the use of checks and other money substitutes.
More so, the use of bouncing checks facilitates the commission of fraud
as a crime.

Dishonor

The “dishonor” of a check is a rejection by the drawee bank of a check

presented for payment on any of the following grounds:

i. Closed Account – the drawer’s account with the drawee bank is

closed for having no funds. When the bank dishonors a check for
being drawn against a closed account, a “DACA” or “Drawn
Against Closed Account” may be stamped onto the dishonored
check;

ii. Insufficient Funds – the drawer’s account does not contain

sufficient funds to cover the amount of the check. When the bank
dishonors a check for being drawn against insufficient funds, a
“DAIF” or “Drawn Against Insufficient Funds” may be stamped
onto the dishonored check;

iii. Uncollected Deposit – the drawer’s account may contain

sufficient funds to cover the amount of the check however the
amount is only going to be available for withdrawal or payment
after a certain period of time. This usually happens in inter-bank
transactions where one bank transfers money to another bank,
and the latter bank requires a number of days to “clear” the
transfer. This may also happen when a check drawn against one
drawee bank is deposited with a different bank. The bank in
which the check is deposited may require a few days to “clear”
the check, which is usually a process of authenticating the check
and verifying the details of the drawer.

As a rule, a check that was dishonored for having been drawn

against uncollected deposit (“DAUD”) is not a bouncing check

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 and does not per se violate B.P. 22 because the check is
sufficiently funded – it is just that the funds in the account have
not yet been cleared by the bank for withdrawal or payment, as
the case may be.

Stop Order of Payment

A “stop order” is an order made by the drawer of the check upon the
bank, ordering the latter to refuse payment on a particular check that
has been previously issued.

As the owner of the account, the drawer has the right to repudiate a
check previously issued under any of the following grounds:

i. When the transaction for which the check was issued is later
found to be unlawful or immoral;

ii. When the obligation has been paid through means other than the
issuance of the check;

iii. When the obligation to pay has otherwise ceased;

iv. When a reciprocal obligation on the part of the payee has not
been fulfilled;

v. When the check was issued due to an honest error or some other
fact which vitiates consent; or

vi. Any other cause that lawfully entitles the drawer to refuse to pay
the payee.

Evidence of Knowledge of Insufficiency of Funds

The making, drawing and issuance of a check payment of which is

refused by the drawee because of insufficient funds in or credit with
such bank, when presented within ninety (90) days from the date of the
check, shall be prima facie evidence of knowledge of such insufficiency
of funds or credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for payment in full by
the drawee of such check within (5) banking days after receiving notice
that such check has not been paid by the drawee.

For there to be a presumption of knowledge of insufficiency of funds,

there must be sufficient evidence that the drawer of the check was
duly-informed of the fact of dishonor of the check and the demand for
payment. Otherwise stated, the notice of dishonor must have been duly
served by the payee and duly received by the drawer.

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 The Offense as a Malum Prohibitum

The issuance of a worthless is a malum prohibitum (mala prohibita, in

other sources) where intention or the presence or absence of good faith
is not an element or a defense.

The law has made the mere act of issuing a bum check a malum
prohibitum an act proscribed by legislature for being deemed
pernicious and inimical to public welfare. The gravamen of the offense
under this law is the act of issuing a worthless check or a check that is
dishonored upon its presentment for payment. Thus, even if there had
been payment, through compensation or some other means, there
could still be prosecution for violation of B.P. 22.1

NOTE: A charge for estafa through the issuance of a bouncing check

does not always bring with it a charge for violation of B.P. 22, if the
evidence for the latter is lacking. Estafa is grounded on the issuance
of a worthless check in the perpetration of fraud while a violation of
B.P. 22 is based on the mere issuance of a worthless check, subject to
proof that the drawer was duly served a notice of dishonor.

3. Through any of the following fraudulent means:

a. By inducing another, by means of deceit, to sign any document.

Illustration: With his father aged and with a weakened mind,

Jose caused him to sign a last will and testament. Upon inquiry,
Jose told his father that the document was a simple power of
attorney authorizing him to pay his father’s insurance payments.

b. By resorting to some fraudulent practice to insure success in a

gambling game.

c. By removing, concealing or destroying, in whole or in part, any court

record, office files, document or any other papers.

Other Forms of Swindling

The following acts are also punished as estafa under Article 316:

1. Any person who, pretending to be the owner of any real property, shall
convey, sell, encumber or mortgage the same.

2. Any person who, knowing that real property is encumbered, shall dispose of
the same, although such encumbrance be not recorded.

The law does not prohibit the disposal of property even while it is
encumbered by mortgage or by some other encumbrance. But when

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 the encumbered property is disposed for the purpose of defrauding the
person in whose favor the encumbrance is placed (the mortgagor,
perhaps), there comes liability for estafa.

3. The owner of any personal property who shall wrongfully take it from its
lawful possessor, to the prejudice of the latter or any third person.

Illustration: Jose, an OFW owns a condominium unit being leased by

Jacinto and, by their agreement, Jacinto subleases to Javier. Upon Jose’s
return to the Philippines, he informed Javier that the property has been
foreclosed by a bank such that he must vacate within 5 days, which
Javier complied.

4. Any person who, to the prejudice of another, shall execute any fictitious
contract.

A fictitious contract is a false document – that is, one where the parties
execute to conceal their true intention or one executed by the parties
where there is no intention to consummate it.

The execution of a fictitious contract may also bring with it liability for
falsification of documents, whether or not the document is notarized.

Illustration: Jose and Jacinto execute a fictitious Deed of Sale

where they make it appear that Jose sold his car to Jacinto in
2018. The Deed of Sale was executed to deter Javier from
proceeding against Jose’s car in 2020 for non-payment of a debt.

5. Any person who shall accept any compensation given him under the belief
that it was in payment of services rendered or labor performed by him, when
in fact he did not actually perform such services or labor.

6. Any person who, while being a surety in a bond given in a criminal or civil
action, without express authority from the court or before the cancellation of
his bond or before being relieved from the obligation contracted by him, shall
sell, mortgage, or, in any other manner, encumber the real property or
properties with which he guaranteed the fulfillment of such obligation.

A surety has the obligation to maintain sufficient property to answer

for the liabilities of the person secured by them. Before they can
dispose of any property owned by them and which was given as
security for an obligation, they must first seek permission from the
Court.

Illustration: For the payment of Php30,000.00, Jose allowed his

property to be used by Jacinto to secure his obligation in Javier’s
favor amounting to Php2,000,000.00. When Jacinto failed to pay,
Javier sued him and Joe for collection of sum of money, with a
request that Jose’s property which was used to secure Jacinto’s

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 obligation be sold at public auction and the proceeds thereof
used to pay Jacinto’s debt.

But before the court could act on Javier’s complaint, Jose sold the
property to Joselito without first obtaining permission from the
court.

Article 317 – Swindling a Minor

The crime is committed by any person who, taking advantage of the inexperience or
emotions or feelings of a minor, to his detriment, shall induce him to assume any
obligation or to give any release or execute a transfer of any property right in
consideration of some loan of money, credit or other personal property, whether the
loan clearly appears in the document or is shown in any other form.

Any non-essential contract entered into where a minor is a contracting party either
as obligor or obligee is voidable, since a minor is disqualified from giving valid
consent to a contract. But where there is fraud involved as described above, there
will also be criminal liability on the part of the person who took advantage of the
inexperience, feelings or emotions of the minor.

Other Deceits

In case the act of the offender involves some form of deceit but one that is not
described in Articles 315, 316 or 317, the offender will still be liable for estafa under
Article 318, which was enacted to address all other forms of deceit one may commit
against another.

This includes the act of any person who, for profit or gain, shall interpret dreams,
make forecasts, tell fortunes, or take advantage of the credulity of the public in any
other similar manner.

Estafa, when Syndicated

Section 1 of PD 1689 defines Syndicated Estafa as follows:

“Section 1. Any person or persons who shall commit estafa or other forms of
swindling as defined in Articles 315 and 316 of the Revised Penal Code, as
amended, shall be punished by life imprisonment to death if the swindling
(estafa) is committed by a syndicate consisting of five or more persons
formed with the intention of carrying out the unlawful or illegal act,
transaction, enterprise or scheme, and the defraudation results in the
misappropriation of moneys contributed by stockholders, or members of
rural banks, cooperatives, "samahang nayon(s)," or farmers’ associations, or
funds solicited by corporations/associations from the general public.”

Thus, the elements of Syndicated Estafa are:

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 1. Estafa or other forms of swindling, as defined in Articles 315 and 316 of the
RPC, is committed;

2. The Estafa or swindling is committed by a syndicate of five (5) or more

persons; and

3. Defraudation results in the misappropriation of moneys contributed by

stockholders, or members of rural banks, cooperative, "samahang nayon(s),"
or farmers’ associations, or of funds solicited by corporations/associations
from the general public.3

Estafa in Large Scale

The Revised Penal Code does not define estafa in large scale. However General Order
No. 54 as issued by then President Ferdinand Marcos defined “large scale estafa” as
follows:

“Swindling (estafa) shall be considered in “large-scale” when the amount

involved is not less than One hundred thousand pesos or otherwise where the
swindling (estafa) causes widespread prejudice to public interest as
determined by the Secretary of National Defense.”

CRIMES AGAINST CHASTITY

Adultery and Concubinage

Adultery is committed by any married woman who shall have sexual intercourse
with a man not her husband and by the man who has carnal knowledge of her,
knowing her to be married, even if the marriage be subsequently declared void.

The crime is consummated by the act if a married woman having sexual intercourse
(in the traditional sense) with a man not her husband. If the paramour did not know
that the offending spouse was married, he will not be criminally liable.

Adultery is a crime of result and not of tendency, as the Supreme Courts of Spain has
held. It is an instantaneous crime which is consummated and exhausted or
completed at the moment of the carnal union. Each sexual intercourse constitutes a

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crime of adultery. The Supreme Court held in People of the Philippines vs. Zapata and
Bondoc:

“True, two or more adulterous acts committed by the same defendants are
against the same person — the offended husband, the same status — the
union of the husband and wife by their marriage, and the same community
presented by the State for its interest in maintaining and preserving such
status. But this identity of the offended party, status and society does not
argue against the commission of the crime of adultery as many times as there
were carnal acts consummated, for as long as the status remains unchanged,
the nexus undissolved, an encroachment or trespass upon that status
constitutes a crime. There is no constitutional or legal provision which bars
the filing of as many complaints for adultery as there were adulterous acts
committed, each constituting one crime.

xxx

A second complaint charging the commission of adulterous acts not included

in the first complaint does not constitute a violation of the double jeopardy
clause of the Constitution, otherwise the adultery by the made defendant
charged in the second complaint, should he be absolved from, or acquitted of,
the first charge upon the evidence that he did not know that his codefendant
was married woman, would remain or go unpunished. The defense set up by
him against the first charge upon which he was acquitted would no longer be
available, because at the time of the commission of the crime charged in the
second complaint, he already knew that his codefendant was a married
woman and yet he continued to have carnal knowledge of her.

xxx

Even if the husband pardoned his wife, such pardon would not exempt the wife and
her paramour from criminal liability for adulterous acts committed after the pardon
was granted, because the pardon refers to previous, and not to subsequent,
adulterous acts.

Concubinage, on the other hand is committed by any husband who shall keep a
mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous
circumstances, with a woman who is not his wife, or shall cohabit with her in any
other place.

For there to be criminal liability for concubinage any of the following circumstances
must be present:

1. The offending husband keeps his mistress in the conjugal dwelling;

2. The offending husband has sexual intercourse with a woman who is not his
wife under scandalous circumstances; or

3. The offending husband cohabits with his mistress in any other place.

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The term "cohabit" means to dwell together, in the manner of husband and wife, for
some period of time, as distinguished from occasional, transient interviews for
unlawful intercourse. (People vs. Pitoc, 43 Phil., 758.)

Adultery and Concubinage as Private Crimes

Being private crimes, the following are required before prosecutions for adultery or
concubinage may proceed:

1. The person executing the criminal complaint must be the offended spouse;

2. The complaint must charge both the guilty wife and her paramour or the
guilty husband and his concubine, if both of them are living;

3. The offended spouse must not have pardoned the offending spouse whether
expressly or impliedly, prior to the institution of the criminal complaint;

4. For pardon to bar the institution of a criminal action, it is necessary that:

a. The offended spouse must pardon both the offending spouse and their
paramour or concubine, as the case may be; and

b. The pardon must have been given before the criminal complaint is
instituted.

Acts of Lasciviousness

Acts of lasciviousness is defined and penalized under Article 336 of the RPC, which
reads:

“Article 336. Acts of Lasciviousness. - Any person who shall commit any act of
lasciviousness upon other persons of either sex, under any of the
circumstances mentioned in the preceding article, shall be punished by
prision correccional.”

The phrase, “preceding article” refers to the old provision on rape before R.A. 8353
was enacted.

There must be a confluence of the following elements before conviction can be had
for such crime:

1. That the offender commits any act of lasciviousness or lewdness;

2. That it is done under any of the following circumstances:

a. Through force, threat, or intimidation;

b. When the offended party is deprived of reason or otherwise

unconscious;

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 c. By means of fraudulent machination or grave abuse of authority; or

d. When the offended party is under twelve (12) years of age or is

demented, even though none of the circumstances mentioned above be
present; and

3. That the offended party is another person of either sex.

"Lascivious conduct" is defined in Section 32, Article XIII of the Implementing Rules
and Regulations (IRR) of RA 7610, as follows:

“The intentional touching, either directly or through clothing, of the genitalia,

anus, groin, breast, inner thigh, or buttocks, or the introduction of any object
into the genitalia, anus or mouth, of any person, whether of the same or
opposite sex, with an intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person, bestiality, masturbation, lascivious
exhibition of the genitals or pubic area of a person.”

But to constitute the crime of acts of lasciviousness, it is essential that the acts
committed by the offender do not constitute the crime of rape as defined and
punished under R.A. 8353.

In the event that lascivious conduct is committed without the circumstances

attendant in rape, the crime committed may either be:

1. A violation of Republic Act No. 11313 – the Safe Spaces Act; or

2. Unjust vexation under Article 287, par. 2.

Seduction

“Seduction” is the act of enticing a person to sexual intercourse. Under Article 337,
as amended by Republic Act No. 11648, seduction is committed when the offender
has carnal knowledge of any of the persons and under any of the circumstances
enumerated under the crimes of qualified seduction and simple seduction.

Qualified Seduction:

1. The person seduced is a minor above 16 years but under 18 years of age;

2. The offender is any person in public authority, priest, home-servant,

domestic, guardian, teacher, or any person who, in any capacity, shall be
entrusted with the education or custody of the minor seduced

Notes:

a. Carnal knowledge with a person under 16 years of age is punished as

statutory rape, unless the exempting circumstance of age difference
and consensual, non-abusive, and non-exploitative sexual activity is
present.

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 b. If the qualified seduction is committed against the offender’s sister or
descendant, regardless of the victim’s age or if they are a virgin or not,
the penalty next higher in degree shall be imposed.

c. Seduction is having carnal knowledge, committed by means of deceit

but not constituting fraudulent machination because the act of sexual
intercourse will result to rape.

Simple Seduction

The person seduced is a woman who is single or a widow of good reputation, over
twelve but under eighteen years of age, committed by means of deceit.

To constitute simple seduction, the victim must be female. She is not a virgin but is
still a minor above twelve years of age.

The matter of the victim being single or a widow of good reputation no longer
applies because under current law, a minor is not qualified to marry, such that all
minors are legally single and thus, cannot be widows.

Forcible Abduction and Consented Abduction

Abduction is the taking of a woman, with or against her will, with lewd designs. It
may be forcible, as when the woman was taken against her will, or consented, as
when the woman is a virgin and a minor over twelve years of age and the taking of
that woman with lewd design was with her consent.

The term "lewd" is commonly defined as something indecent or obscene; it is

characterized by or intended to excite crude sexual desire. That an accused is
entertaining a lewd or unchaste design is necessarily a mental process the existence
of which can be inferred by overt acts carrying out such intention, i.e., by conduct
that can only be interpreted as lewd or lascivious. The presence or absence of lewd
designs is inferred from the nature of the acts themselves and the environmental
circumstances. What is or what is not lewd conduct, by its very nature, cannot be
pigeonholed into a precise definition. (People of the Philippines vs. Ladra, G.R. No.
221443, July 17, 2017.)

In the above-cited Ladra case, the Supreme Court went on to describe the act of the
accused:

“After a careful evaluation, the Court finds that the mere fact of "squeezing"
the private part of a child - a young girl 12 years of age - could not have
signified any other intention but one having lewd or indecent design. It must
not be forgotten that several years prior, accused-appellant had raped AAA in
the same house, for which act he was appropriately convicted. Indeed, the law
indicates that the mere touching - more so, "squeezing," in this case, which
strongly suggests that the act was intentional - of AAA's genitalia clearly
constitutes lascivious conduct. It could not have been done merely to annoy or

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 vex her, as opined by the courts a quo. That AAA was fully clothed at that time,
which led the courts a quo to believe that accused-appellant could not have
intended to lie with her, is inconsequential. "'Lewd' is defined as obscene,
lustful, indecent, and lecherous. It signifies that form of immorality which has
relation to moral impurity; or that which is carried on a wanton manner."

For there to be conviction for abduction the taking must be coupled with an
intention to commit a sexually-indecent act against the victim. Verily, it is the act of
taking with lewd design that consummates the crime of abduction, and not the
actual lewd acts committed by the offender after the taking, which may constitute
another crime resulting to a complex crime, as in forcible abduction with rape.

Forcible Abduction with Rape

There is no complex crime of forcible abduction with rape if the primary objective of
the accused is to commit rape. The taking of the victim with lewd design is absorbed
in the crime of rape.

Under Article 342 of the Revised Penal Code, the elements of forcible abduction are:

1. The taking of a woman against her will; and

2. The taking of the woman is with lewd designs.

The crime of forcible abduction with rape is a complex crime that occurs when the
abductor has carnal knowledge of the abducted woman under the following
circumstances: (1) by using force or intimidation; (2) when the woman is deprived
of reason or otherwise unconscious; and (3) when the woman is under 12 years of
age or is demented.

Although the elements of forcible abduction obtained, the appellant should be

convicted only of rape. His forcible abduction of AAA was absorbed by the rape
considering that his real objective in abducting her was to commit the rape. Where
the main objective of the culprit for the abduction of the victim of rape was to have
carnal knowledge of her, he could be convicted only of rape. (People v. Sabadlab, G.R.
No. 175924, March 14, 2012, 668 SCRA 237, 248-249; citing Garces v. People, G.R. No.
173858, July 17, 2007, 527 SCRA 827; People v. Muros, G.R. No. 142511, February 16,
2004, 423 SCRA 69; People v. Egan, G.R. No. 139338, May 28, 2002, 382 SCRA 326;
People v. Mejorada, G.R. No. 102705, July 30, 1993, 224 SCRA 837, 852; People v.
Godines, G.R. No. 93410, May 7, 1991, 196 SCRA 765, 773.)

REPUBLIC ACT NO. 9995

ANTI-PHOTO AND VIDEO VOYEURISM ACT OF 2009

"Photo or video voyeurism" means:

1. The act of taking photo or video coverage of a person or group of persons

performing sexual act or any similar activity without their consent;

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 2. Capturing an image of the private area of a person or persons without the
latter's consent, under circumstances in which such person/s has/have a
reasonable expectation of privacy;

3. Selling, copying, reproducing, broadcasting, sharing, showing or exhibiting the

photo or video coverage or recordings of such sexual act or similar activity
through VCD/DVD, internet, cellular phones and similar means or device
without the written consent of the person/s involved, notwithstanding that
consent to record or take photo or video coverage of same was given by such
persons.

Note: Consent to record does not include consent to sell, copy,

reproduce, broadcast, share, show, or exhibit.

Prohibited Acts

1. To take photo or video coverage of a person or group of persons performing

sexual act or any similar activity or to capture an image of the private area of a
person/s such as the naked or undergarment clad genitals, pubic area,
buttocks or female breast without the consent of the person/s involved and
under circumstances in which the person/s has/have a reasonable
expectation of privacy;

a. “Female breast" means any portion of the female breast.

b. "Private area of a person" means the naked or undergarment clad

genitals, pubic area, buttocks or female breast of an individual.

c. "Under circumstances in which a person has a reasonable expectation

of privacy" means believe that he/she could disrobe in privacy, without
being concerned that an image or a private area of the person was
being captured; or circumstances in which a reasonable person would
believe that a private area of the person would not be visible to the
public, regardless of whether that person is in a public or private place.

2. 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;

3. To sell or distribute, or cause to be sold or distributed, such photo or video or

recording of sexual act, whether it be the original copy or reproduction
thereof; or

4. To publish or broadcast, or cause to be published or broadcast, whether in

print or broadcast media, or show or exhibit the photo or video coverage or
recordings of such sexual act or any similar activity through VCD/DVD,
internet, cellular phones and other similar means or device.

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 a. "Broadcast" means to make public, by any means, a visual image with
the intent that it be viewed by a person or persons.

b. "Capture" with respect to an image, means to videotape, photograph,

film, record by any means, or broadcast.

CRIMES AGAINST THE CIVIL STATUS OF PERSONS

Simulation of Births

The crime is committed by falsifying a person’s certificate of live birth, making it

appear that the person or persons named therein is/are the biological parent/s of
the said person. It is committed to conceal the person’s true lineage and to
circumvent legal adoption laws and regulations, or for the purpose of trafficking in
persons.

Notes:

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 1. While the document involved is a certificate of live birth, the charge is not for
falsification of public documents because Art. 347, as amended, expressly
defines and punishes the act of simulating the birth.

2. There may be separate charges for simulation of births under Art. 347 and
falsification of documents under Art. 171 and 172 because the gravamen of
simulation of births is not the falsification of the document itself, but the act
of making it appear that a person is born of another family, while falsification
defines and punishes the mere act of falsifying the subject document;

3. If the simulation was for the best interest of the child, and that the child was
consistently considered and treated by the offender as their own child, the
offender may be exempted from criminal liability under Republic Act No.
11222 – The Simulated Birth Rectification Act.

4. Art. 347 also punishes the following acts:

a. Substitution of one child for another;

b. Concealment of the legitimate status of a child with the intent to cause

the said child to lose their legitimate status; and

c. Abandonment of a legitimate child with the intent to cause the said

child to lose their legitimate status

5. Physicians or surgeons who cooperates in any of the crimes under Art. 347
shall be liable in their own capacities and for the same penalties, in addition
to their temporary special disqualification as an accessory penalty.

Usurpation of Civil Status

The crime is committed by a person who assumes the civil status of another
(whether legitimate or illegitimate), for whatever reason.

If the usurpation is committed to defraud the offended party or the latter’s heirs, the
penalty next higher in degree shall be imposed.

Bigamy

Article 349 of the Revised Penal Code (RPC) defines and penalizes Bigamy:

“Art. 349. Bigamy. — The penalty of prision mayor shall be imposed upon any
person who shall contract a second or subsequent marriage before the former
marriage has been legally dissolved, or before the absent spouse has been
declared presumptively dead by means of a judgment rendered in the proper
proceedings.”

The rationale for prosecuting an individual who contracted a second or subsequent

marriage before the former marriage has been legally dissolved, or before the absent

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spouse has been declared presumptively dead, is to preserve and ensure the
juridical tie of marriage established by law.

For one to be held guilty of bigamy, the prosecution must prove the following:

1. That the offender has been legally married;

2. That the first marriage has not been legally dissolved, or in case his or her
spouse is absent, the absent spouse could not yet be presumed dead
according to the Civil Code;

3. That he or she contracts a second or subsequent marriage; and

4. That the second or subsequent marriage has all die essential requisites for
validity. (Vitangcol v. People, 778 Phil. 326, 334 (2016) citing Tenebro v. Court
of Appeals, 467 Phil. 723, 738 (2004).

It is vital in the prosecution for bigamy that the alleged second marriage, having all
the essential requirements, would be valid were it not for the subsistence of the first
marriage. (Montañez v. Cipriano, 697 Phil. 586, 596 (2012) citing Manuel v. People,
512 Phil. 818, 833 (2005).

Notes:

1. A party to a civil marriage who converts to Islam and contracts another

marriage, despite the first marriage's subsistence, is guilty of bigamy.
Likewise guilty is the spouse in the subsequent marriage. Conversion to Islam
does not operate to exculpate them from criminal liability. (Sps. Malaki vs.
People of the Philippines, G.R. No. 221075, November 15, 2021)

2. A married Muslim cannot marry another. In exceptional cases, a married

Muslim man may do so if "he can deal with them with equal companionship
and just treatment as enjoined by Islamic law." (Presidential Decree No. 1083
or the Code of Muslim Personal Laws of the Philippines: “Muslim Code,” Art. 27).
The formal requisites of the subsequent marriage under the Muslim Code
entails the wife's knowledge of the impending subsequent marriage.

3. Pulido vs. People, G.R. No. 220149, July 27, 2021 - The parties are not required
to obtain a judicial declaration of absolute nullity of a void ab initio first and
subsequent marriages in order to raise it as a defense in a bigamy case. The
same rule now applies to all marriages celebrated under the Civil Code and
the Family Code. Article 40 of the Family Code did not amend Article 349 of
the RPC, and thus, did not deny the accused the right to collaterally attack the
validity of a void ab initio marriage in the criminal prosecution for bigamy.

However, if the first marriage is merely voidable, the accused cannot

interpose an annulment decree as a defense in the criminal prosecution for
bigamy since the voidable first marriage is considered valid and subsisting
when the second marriage was contracted. The crime of bigamy, therefore, is
consummated when the second marriage was celebrated during the
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 subsistence of the voidable first marriage. The same rule applies if the second
marriage is merely considered as voidable.

CRIMINAL NEGLIGENCE

Reckless imprudence, as defined in Article 365 of the RPC, consists in voluntarily,

but without malice, doing or failing to do an act from which material damage results
by reason of inexcusable lack of precaution on the part of the person performing or
failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding
persons, time and place.1

Criminal negligence, or reckless imprudence cannot be a crime by itself. To be

punishable it must result in death, physical injuries or damage to property.

The elements of reckless imprudence are:

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 1. That the offender does or fails to do an act;

2. That the doing or the failure to do that act is voluntary;

3. That it be without malice;

4. That material damage results from the reckless imprudence; and

5. That there is inexcusable lack of precaution on the part of the offender, taking
into consideration his employment or occupation, degree of intelligence,
physical condition, and other circumstances regarding persons, time, and
place.2

The essence of the quasi offense of criminal negligence under Article 365 of the RPC
lies in the execution of an imprudent or negligent act that, if intentionally done,
would be punishable as a felony. The law penalizes, thus, the negligent or careless
act, not the result thereof. The gravity of the consequence is only taken into account
to determine the penalty; it does not qualify the substance of the offense. (Gonzaga
vs. People of the Philippines, G.R. No. 195671, January 21, 2015.)

Reckless Imprudence and Breach of Contract of Carriage,

in Transportation Cases

In criminal cases for reckless imprudence, the negligence or fault should be

established beyond reasonable doubt because it is the basis of the action, whereas in
breach of contract, the action can be prosecuted merely by proving the existence of
the contract and the fact that the common carrier failed to transport his passenger
safely to his destination.4 The first punishes the negligent act, with civil liability
being a mere consequence of a finding of guilt, whereas the second seeks
indemnification for damages. Moreover, the first is governed by the provisions of the
RPC, and not by those of the Civil Code. Thus, it is beyond dispute that a civil action
based on the contractual liability of a common carrier is distinct from an action
based on criminal negligence.

In Senit vs. People of the Philippines, the petitioner was found criminally negligent.
The Supreme Court ruled:

“The prosecution sufficiently proved that the Super 5 bus driven by the
petitioner recklessly drove on the right shoulder of the road and overtook
another south -bound ten- wheeler truck that slowed at the intersection,
obviously to give way to another vehicle about to enter the intersection. It was
impossible for him not to notice that the ten-wheeler truck in front and
traveling in the same direction had already slowed down to allow passage of
the pick-up, which was then negotiating a left turn to Aglayan public market.
Seeing the ten-wheeler truck slow down, it was incumbent upon the
petitioner to reduce his speed or apply on the brakes of the bus in order to
allow the pick-up to safely make a left turn. Instead, he drove at a speed too
fast for safety, then chose to swerve to the right shoulder of the road and

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 overtake the truck, entering the intersection and directly smashing into the
pick-up. In flagrantly failing to observe the necessary precautions to avoid
inflicting injury or damage to other persons and things, the petitioner was
recklessly imprudent in operating the Super 5 bus.”

The Direct Causal Connection Rule

In order to establish the liability of the offender for an act of negligence that results
in death, physical injuries or damage to property, t must be shown that there was a
direct causal connection between such negligence and the injuries or damages
complained of. (Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA 489, 498-
499.)

Reckless Imprudence as a Complex Crime

As originally enacted, article 48 of the Revised Penal Code provided that the crime is
complex when a single act constitutes two or more crimes, or when an offense is a
necessary means of committing the other.

Commonwealth Act No. 4000 amended article 48 by substituting the words " grave
or less grave felonies" for the word "crimes" in the original version, thus eliminating
a light felony as a component part of a complex crime.

Applying Article 48 as amended, it follows that if one offense is light, there is no

complex crime. The resulting offenses may be treated as a separate or the light
felony may be absorbed by the grave felony. Thus, the light felonies of damage to
property and slight physical injuries, both resulting from a single act of imprudence,
do not constitute a complex crime. They cannot be charged in one information. They
are separate offenses subject to distinct penalties. (People vs. Turla, 50 Phil. 1001;
See People vs. Estipona, 70 Phil. 513)

Notes:

1. Where death results from the reckless imprudence, the proper crime to be
charged is reckless imprudence resulting in homicide. The term, “homicide” is
used in its broad or generic sense even if there may be circumstances that
would normally qualify the killing of a person from homicide to murder.

2. Where the person killed is the spouse, parent or child, or any other legitimate
ascendant or descendant, the crime committed is reckless imprudence
resulting in parricide.

3. Where the person killed is an infant less than 3 days of age, the crime
committed is reckless imprudence resulting in infanticide.

4. Where physical injuries are inflicted as a result of the reckless imprudence,

the crime committed is reckless imprudence resulting in serious physical
injuries, less serious physical injuries or slight physical injuries as the case
may be.

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5. Where property was damaged on account of the reckless imprudence, the
crime committed is reckless imprudence resulting in damage to property.

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