Criminal Law II Santiago

CRIMINAL LAW II
REVISED PENAL CODE

BOOK TWO
From the Discussions of Atty. Paolo Evangelista
And Annotations of Luis B. Reyes (2017)
Compiled by:
Reginald Matt Santiago
I-Manresa
CRIMINAL LAW 2 | REGINALD MATT SANTIAGO 2
CRIMINAL LAW II First Mode: Levying War against the Government

1. That there is an actual assemblage of men
REVISED PENAL CODE
2. For the purpose of executing a treasonable design by
Articles 114-123 force
TITLE ONE It must be directed to the government, with the intent to

CRIMES AGAINST NATIONAL SECURITY AND overthrow the government as such, not merely to resist a
THE LAW OF NATIONS particular statute or to repel a particular officer.
Crimes Against National Security Difference from Rebellion. Since levying war against the
1. Treason government is also punished as rebellion, there must be a
2. Conspiracy and Proposal to Commit Treason difference between treason and rebellion.
3. Misprision of Treason • If the levying of war is merely a civil uprising, without
4. Espionage any intention of helping and external enemy the crime
is not treason. It is rebellion.
Crimes Against the Law of Nations • The levying of war must be in collaboration with a
1. Inciting to war or giving motives for reprisals foreign enemy to become treason.
2. Violating of neutrality
3. Corresponding with hostile country Second Mode: Adherence to Enemy Giving Aid or Comfort
4. Flight to enemy’s country 1. There is adherence to the enemy means an intent to
5. Piracy in general and mutiny on the high seas and betray, there is such when a citizen has emotional or
Philippine waters intellectual attachment.
2. There is giving of aid or comfort which are act which
Section One. – Treason and Espionage strengthens of tends to strengthen the enemy in the
conduct of war.
Article 114. Treason. – Any Filipino citizen who levies war
against the Philippines or adheres to her enemies, giving There should be both. Adherence alone, without giving the
them aid or comfort within the Philippines or elsewhere, enemy aid or comfort does not constitute treason. Friendly
shall be punished by reclusion perpetua to death and relations are not in itself constitutive of treason. Vice versa.
shall pay a fine not to exceed 4,000,000 pesos. • Giving information to the enemy is treason.
No person shall be convicted of treason unless on the Extend of Aid or Comfort

testimony of two witnesses at least to the same overt act It must be a deed or physical activity, not merely a mental
or on confession of the accused in open court. operation. It can be arms, supplies, information or
transportation. To be considered treasonous, the extent of the
Likewise, an alien, residing in the Philippines, who aid and comfort given to the enemies must be to render
commits acts of treason as defined in paragraph 1 of this assistance to them as enemies and not merely as individuals.
Article shall be punished by reclusion temporal to death • It need not actually strengthen the enemy, it is not the
and shall pay a fine not to exceed 4,000,000 pesos. degree of success, but rather the aim for which the
act was perpetrated.
ELEMENTS OF TREASON • Commandeering of women to satisfy lust in not
1. That the offender is a Filipino citizen or an alien treasonous.
residing in the Philippines.
2. That there is a war in which the Philippines is involved; Examples of Treason:
3. That the offender either – 1. Informer
a. Levies war against the Government 2. Agent or spy for the Japanese Army
b. Adheres to the enemies, giving them aid or 3. Finger woman
comfort 4. Active part in killing
5. Being a Makapili (People v. Adriano)
Treason is known as a breach of allegiance to a government,
committed by a person who owes allegiance to it. It is a Not Examples of Treason
violation by a subject of his allegiance to his sovereign. 1. Acceptance of public office without sufficient showing
• Aliens offer temporary allegiance while in the country. that there is adherence and giving aid or comfort.
• It cannot be committed in times of peace. 2. Mere government work during the Japanese regime is
not an act of treason.
Two Ways of Committing Treason 3. No treason through negligence for the overt act of
1. By levying war against the Government; aid and comfort to the enemy must be intentional.
2. By adhering to the enemies of the Philippines, giving
them aid or comfort
From the Discussions of Atty. Paolo Evangelista and Criminal Law II Annotated (2017) by Luis B. Reyes s
NOTE: When killings and other common crimes are charged as Proposal to Commit Treason
overt acts of treason, they cannot be regarded as separate In time of war a person who has decided to levy war against the
crimes or as complexed with treason. They are deemed Government or adheres to the enemy and to give them aid or
inherent. Like rape and illegal detention. comfort, proposes its execution to some other person or
• It is a continuous offense. persons.
PROVING TREASON NOTE: Two witness rule does not apply anymore, for this is
No person shall be convicted of treason unless on the considered as a separate and distinct offense from that of
testimony of two witnesses at least to the same overt treason.
act or on confession of the accused in open court.
Article 116. Misprision of Treason. – Every person owing
Treason cannot be proved by circumstantial evidence or by the allegiance to (the United States or) the Government of
extrajudicial confession of the accused. There are ways of the Philippine Islands, without being a foreigner, and
proving treason as provided in 114(2): having knowledge of any conspiracy against them, who
1. Testimony of two witnesses, at least, to the same overt conceals or does not disclose and make known the same,
act (for giving aid or comfort) as soon as possible, to the governor or fiscal of the
2. Confession of the accused in open court. province, or the mayor or fiscal of the city in which he
resides, as the case may be, shall be punished as an
Two-witness rule for giving aid or comfort. It is required to accessory to the crime of treason.
prove the act of giving aid or comfort. It is not necessary to
prove adherence. An overt act is a physical activity that deed ELEMENTS OF MISPRISION OF TREASON
that constitutes rendering of aid and comfort. It must be of the 1. That the offender must be owing allegiance to the
same overt act, but need not be identical to each other. Government, and not a foreigner
• Purposively restrictive to make conviction hard. 2. That he has knowledge of any conspiracy (to commit
• Acquitted if the court only believes one witness treason) against the Government
3. That the conceals or does not disclose and make known
Proving Adherence to the Enemy the same as soon as possible to the governor or fiscal
1. By one witness of the province or the mayor or fiscal of the city in
2. From the nature of the act itself which he resides as the case may be.
3. From the circumstances surrounding the act
It need not be proved by two witnesses. It seems obvious that NOTE: This does not apply hen the crime of treason is already
such adherence. committed by someone and the accused does not report its
commission to the proper authority.
Confession must be made in Open Court
This is a confession of guilt. There must be a pleading of guilt Article 117. Espionage. – The penalty of prision
in open court, that is before the judge actually hears the case. It correccional shall be inflicted upon any person who:
is not only an admission of facts. Admission of guilt is 1. Without authority therefor, enters a warship,
different from confessions, thus if the accused testified after fort, or naval or military establishment or
he had pleased not guilty there only an admission but not reservation to obtain any information, plans,
confession of such. photographs, or other data of a confidential
nature relative to the defense of the Philippine
Imposing the Penalty Archipelago.
The penalty for treason is either RP-Death or RT-Death, but the 2. Being in possession, by reason of the public
amount or degree of aid or comfort given to the enemy as well office he holds, of the articles, data or
as the gravity of the treasonous acts shall be considered. information referred to in the preceding
paragraph, discloses their contents to a
Article 115. Conspiracy and proposal to commit treason representative of a foreign nation.
– Penalty. – The conspiracy and proposal to commit the
crime of treason shall be punished respectively, by The penalty next higher in degree shall be imposed if the
prision mayor and a fine not exceeding 2,000,000 pesos, offender be a public officer or employee.
and by prision correccional and a fine not exceeding
1,000,000 pesos. Espionage, Defined
It is the offense of gathering, transmitting, or losing information
Conspiracy to Commit Treason respecting the national defense with intent or reason to believe
When in time of war, two or more persons come to an that the information is to be used to the injury of the Republic
agreement to levy war against the Government or to adhere to of the Philippines, or to the advantage of any foreign nation.
the enemies and to give them aid or comfort and decide to
commit it. There are two ways of committing espionage and there are two
ways a person can be liable for such.
FIRST MODE OF ESPIONAGE Section 3. Disloyal acts or words in time of peace

By entering, without authority therefore, a warship, fort, or • Advising, counselling urging by any manner by
naval or military establishment or reservation, to obtain any causing insubordination, disloyalty, mutiny or refusal
information, plans, photographs, or other data of a confidential of duty of the armed forces of the Philippines.
nature relative to the defense of the Philippines. • Distributing any written or printed matter for such.
ELEMENTS Section 4. Disloyal acts or words in time of war

1. That the offender enters any of the places mentioned • By willfully making or conveying false reports
2. That he has no authority therefor • Promote success of its enemies
3. His purpose is to obtain information, plans, • Obstructing the recruitment or enlistment
photographs, or other data of a confidential nature
relative to the defense of the Philippines. Section 5. Conspiracy to violate preceding sections
Section 6. Harboring or concealing violators of the law.
NOTE: Under this first way of committing espionage, it is not
necessary that the offender should have obtained any Espionage from treason
information as long as the purpose is present. Espionage is a crime not conditioned by the citizenship of the
offender. But treason is committed only in time of war, while
SECOND MODE OF ESPIONAGE espionage may be committed both in time of peace and in time
By disclosing to the representative of a foreign nation the of war. Treason can only be done in two ways.
contents of the articles, data or information referred to in
paragraph No. 1 of Article 117, by reason of the public office he Section Two. – Provoking War and
holds. Disloyalty in Case of War
ELEMENTS The crimes provoking war or disloyalty in case of war are:

1. That the offender is public officer 1. Inciting to war or giving motives for reprisals
2. That he has in his possession the articles, data or 2. Violation of neutrality
information referred to in 117(1) by reason of the 3. Correspondence with hostile country
public office he holds. 4. Flight to enemy’s country
3. That the discloses to a representative of a foreign
nation. Article 118. Inciting to war or giving motives for
reprisals. – The penalty of reclusion temporal shall be
Commonwealth Act No. 616 imposed upon any public officer or employee, and that
An Act to Punish Espionage and Other Offenses against of prision mayor upon any private individual, who, by
National Security unlawful or unauthorized acts, provokes or gives
occasion for a war involving or liable to involve the
Section 1. Unlawfully obtaining or permitting to be obtained Philippine Islands or exposes Filipino citizens to reprisals
information affecting national defense. on their persons or property.
• Going upon, flying, entering by obtaining information
concerning any vessel, aircraft or work of defense ELEMENTS:
• Copying, taking, making or attempting or aiding 1. That the offender performs unlawful or unauthorized
another to take, sketch, print, write related to the acts
national defense, for the same purpose and like intent. 2. That such acts provoke or give occasion for a war
• Receiving, obtaining, or agreeing or attempting or involving or liable to involve the Philippines or expose
inducing another to receive or obtain knowing that it Filipino citizens to reprisals on their persons or
will be used for some purpose. property.
• Communication or transmitting communication to a
person not entitled to receive it or by willfully retaining NOTE: The intention of the offender is immaterial. It is usually
and failing to deliver it on demand. committed in time of peace. If the unlawful or unauthorized
• By permitting, through gross negligence, to be acts of the accused provoke or give occasion for a war or
removed from its proper place of custody or delivered expose Filipino to reprisals, the crimes is committed regardless
to anyone, or be lost, stolen or destroyed. of his intentions.
Section 2. Unlawful disclosing of information affecting national Article 119. Violation of neutrality. – The penalty of
defense. prision correccional shall be inflicted upon anyone who,
• Communicating, delivering, or transmitting to any on the occasion of war in which the Government is not
foreign government any of the data mentioned. involved, violates any regulation issued by a competent
• In time of war, collecting, recording with respect to the authority for the purpose of enforcing neutrality.
movement, number, description, condition or
disposition of forces.
ELEMENTS: Section Three. – Piracy and Mutiny on the High Seas

1. That there is a war that the Philippines is not involved or in Philippine Waters
2. That there is a regulation issued by a competent
authority for the purpose of enforcing neutrality Article 122. Piracy in general and mutiny on the high
3. That the offender violates such regulation seas or in Philippine Waters. – The penalty of reclusion
perpetua shall be inflicted upon any person who, on the
Article 120. Correspondence with hostile country. – Any high seas or in Philippine waters, shall attack or seize a
person, who in time war, shall have correspondence with vessel or, not being a member of its complement nor a
an enemy country or territory occupied by enemy troops passenger, shall seize the whole or part of the cargo of
shall be punished: said vessel, its equipment, or personal belongings of its
1. By prision correccional, if the correspondence complement or passengers.
has been prohibited by the Government
2. By prision mayor, if the correspondence be The same penalty shall be inflicted in case of munity on
carried on in ciphers or conventional signs; and the high seas or Philippine waters.
3. By reclusion temporal, if notice or information
be given thereby which might be useful to the Piracy, Definition
enemy. If the offender intended to aid the It is robbery or forcible depredation on the high seas, without
enemy by giving such notice or information, he lawful authority and done with animo furandi and in the spirit
shall suffer the penalty of reclusion temporal to and intention of universal hostility.
death.
Two Ways of Committing Piracy
ELEMENTS: 1. Attacking or seizing a vessel on the high seas or in
1. That it is in time of war which the Philippines is Philippine waters
involved. 2. That the offenders are not members of its
2. That the offender makes correspondence with an complement or passenger of the vessel;
enemy country or territory occupied by enemy troops 3. That the offenders
3. That the correspondence is either – a. Attack or seize that vessel
a. Prohibited by the government b. Seize the whole or part of the cargo of the
b. Carried on in ciphers or conventional signs said vessel, its equipment or personal
c. Containing notice or information which belongings of its complement or passengers
might be useful to the enemy.
Mutiny, Definition
Circumstance Qualifying the Offense Mutiny is the unlawful resistance to a superior officer, or the
(a) That the notice or information might be useful to the raising of commotions and disturbances on board a ship
enemy against the authority of its commander.
(b) That the offender intended to aid the enemy
If the offender intended to aid the enemy by giving such notice Piracy Mutiny
or information, the crime amount to treason. The persons who attack the They are members of the
vessel or seize its cargo are crew or passenger
Article 121. Flight to enemy’s country. – The penalty of strangers to said vessels
arresto mayor shall be inflicted upon any person who, Intent to gain is essential Offenders may only intend
owing allegiance to the Government, attempts to flee or to ignore the ship’s officers
go to an enemy country when prohibited by competent or desire to commit plunder.
authority. Under RA 9372, a crime committed under Article 122, when it
creates a condition of widespread and extraordinary fear and
ELEMENTS: panic among the populace, in coercing the government to give
1. That there is a war in which the PH is involved. in to an unlawful demand shall be guilty of terrorism.
2. That the offender must be owing allegiance to the
Government Article 123. Qualified Piracy. – The penalty of reclusion
3. That the offender attempts to flee or go to enemy perpetua to death shall be imposed upon those who
country; commit any of the crimes referred to in the preceding
4. That going to enemy country is prohibited by article under any of the following circumstances:
competent authority. 1. Whenever they have seized the 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 crimes is accompanied by
murder, homicide, physical injuries or rape.
NOTE: It is qualified piracy when the crime was accompanied by

rape and the offenders have abandoned their victims without
means of saving themselves.
Article 122 before its amendment, provided that piracy must

be committed on the high seas by any person not a member of
tis complement nor a passenger thereof. Upon its amendment
by RA 7659, the coverage included Philippine.
PD 532. The coverage of the law on piracy embraces any

person including a passenger or member of the complement of
said vessel in Philippine waters. There is no ambiguity on the
two.
Qualified Piracy is a Composite Crime

This is considered as a special complex crime by reclusion
perpetua to death, regardless of the number of victims.
NOTE: Any person who aids or protects pirates or abets the

commission of piracy are considered as accomplices.
• Acts inimical to civil aviation punished by RA 6235.
CRIMINAL LAW II ELEMENTS OF ARBITRARY DETENTION

REVISED PENAL CODE 4. That the offender is a public officer or employee.
Articles 124-133 5. That he detains a person.
6. That the detention is without legal grounds.
TITLE TWO
CRIMES AGAINST THE FUNDAMENTAL Offender Must be a Public Officer of Employee
LAWS OF THE STATE The public officers liable for arbitrary detention must be vested
with authority to detain or order the detention of person
Crimes Under Title Two of Book Two of the RPC accused of a crime, but when they detain a person they have
5. Arbitrary Detention no legal grounds therefore.
6. Delay in the delivery of detained persons to the • If the detention is perpetrated by other public officers,
proper judicial authorities. the crime committed may be illegal detention, because
7. Delaying release they are acting in their private capacity.
8. Expulsion
9. Violation of domicile Detention, Concept
10. Search warrants maliciously obtained and abuse in It is defined as the actual confinement of a person in an
the service of those legally obtained. enclosure, or in any manner detaining and depriving him of his
11. Searching domicile without witnesses. liberty. A person is detained when he is placed in confinement
12. Prohibition, interruption and dissolution of peaceful or there is a restraint on his person.
meetings.
13. Interruption of religious worship. Restraint Resulting from Fear
14. Offending the religious feelings. Where the accused-mayor refused to allow a DENR team to go
home despite their pleas, and the refusal was quickly followed
Section One. – Arbitrary Detention and Expulsion by the call for and arrival of almost a dozen of ‘reinforcements’
all armed with military issued rifles, who proceeded to encircle
Classes of Arbitrary Detention the team, weapon pointed at the complainants and witnesses,
1. Arbitrary detention by detaining a person without and the team was instead brought to a house, where after
legal ground (Article 124) dinner, some of the members were allowed to go down from
2. Delay in the delivery of detained persons to the the house but not to leave the barangay, the rest just sat in the
proper judicial authorities (Article 125) house until 2:00AM. When they were finally allowed to leave, it
3. Delaying release (Article 126) was held that the restraint resulting from fear is evident. It was
not just the presence of the armed men, but also the evident
These punish any public officer or employee in those cases were effects these gunmen had on the actions of the team which
an individual is unlawfully deprived of liberty without due proves that fear was indeed instilled in the minds of the team
process as provided under Section 1 of the Bill of Rights. members, to the extent that they felt compelled to stay in the
barangay. The intent to prevent departure of complainants and
Article 124. Arbitrary Detention. – Any public officer, or witnesses against their will is clear. (Astorga v. People)
employee who, without legal grounds, detain a person,
shall suffer: Without Legal Grounds
The detention of a person is without legal grounds:
1. The penalty of arresto mayor in its maximum 1. When he has not committed any crime or, at least,
period to prision correccional in its minimum there is no reasonable ground for suspicion that he
period, if the detention has not exceeded three has committed a crime.
days. 2. When he is not suffering from violent insanity or any
2. The penalty of prision correccional in its other ailment requiring compulsory confinement in a
medium and maximum periods, if the detention hospital
has continued more than three but not more
than fifteen days. Legal Grounds
3. The penalty of prision mayor, if the detention 1. The commission of a crime
has continued for more than fifteen days but 2. Violent insanity or any other ailment requiring the
not more than six months. compulsory confinement of the patient in hospital.
4. That of reclusion temporal, if the detention has
exceeded six months. Arrest without Warrant is the Usual Cause
A peace officer must have a warrant of arrest properly issued
The commission of a crime, or violent insanity or any by the court to justify an arrest. If there is no such warrant of
other ailment requiring the compulsory confinement of arrest, the arrest of person by a public officer may constitute
the patient in a hospital, shall be considered legal arbitrary detention.
grounds for the detention of any person.
Arrest Without Warrant, When Lawful Arbitrary Detention through Imprudence

Section 5, Rule 113 of the Revised Rules of Criminal Procedure When a peace officer rearrests a person, who has been released
provides that a peace office may arrest without warrant: but without malice. (People v. Misa).
1. When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to Article 125. Delay in the delivery of detained persons to
commit an offense; the proper judicial authorities. – The penalties provided
2. When an offense has in fact been committed, and he in the next preceding article shall be imposed upon the
has probable cause to believe based on personal public officer or employee who shall detain any person
knowledge of facts and circumstances that the person for some legal ground and shall fail to deliver such
to be arrested has committed it; and person to the proper judicial authorities within the
period of: twelve (12) hours, for crimes or offense
3. When the person to be arrested is a prisoner who has
punishable by light penalties, or their equivalent;
escaped from a penal establishment or place where he
eighteen (18) hours, for crimes or offense punishable by
is serving final judgment or temporarily confined while
correctional penalties, or their equivalent; and thirty-six
his case is pending, or has escaped while being
(36) hours, for crimes or offenses punishable by afflictive
transferred from one confinement to another.
or capital penalties, or their equivalent.
“In his presence”

In every case, the person detained shall be informed of
This phrase means that when the officer sees the offense being
the cause of his detention and shall be allowed, upon his
committed, although at a distance, or hears the disturbance
request, to communicate and confer at any time with his
created thereby and proceeds at once to the scene thereof, or
counsel. (As amended by E.O. 272).
when the offense is continuing or has not been consummated
at the time the arrest is made, the offense is said to be
ELEMENTS
committed in his presence.
1. That the offender is a public officer or employee
2. That he has detained a person for some legal ground
Personal Knowledge, Required
3. That he fails to deliver such person to the proper
An officer arresting a person caught in flagrante delicto must
judicial authorities within:
have probable cause to believed based on personal knowledge
a. Twelve hours for offenses punishable by light
of facts and circumstances that the person to be arrested has
penalties.
committed it. It must be based on probable cause which is
b. Eighteen hours for offense punishable by
actual belief or reasonable grounds of suspicion.
correctional penalties.
c. Thirty-six hours for offense punishably by
Probable Cause, Concept
afflictive or capital penalties.
It can be defined as such facts, and circumstances which could
lead a reasonable discreet and prudent man to believe that an
Illegal Detention Applicable to Article 125 by Private Person
offense has been committed and that the object sought in
A private individual who makes a lawful arrest must also comply
connection with the offense are in the place sought to be
with the requirement prescribed in Article 125. If he fails to do
searched. It must be within the personal knowledge of the
so, he shall be guilty of illegal detention not arbitrary detention.
complainant or the witness and not based on mere hearsay.
“Shall detain any person for some legal ground”

Crime Must in Fact or Actually Have Been Committed First
The detention is legal in the beginning because the person was
In arrests without warrant under Section 6(b), it is not enough
detained under any of the circumstance where arrest without
that there is reasonable ground to believe that the person to be
warrant is authorized by law. The detention becomes illegal
arrested has committed a crime. A crime must in fact or actually
after a certain period of time, because the offended party is not
have been committed first. It is an essential precondition.
delivered to the proper judicial authority, within the period
• No reasonable ground if officer only wants to know
specified under Article 125.
the commission of crime.
Article 125 Does Not Apply When the Arrest

When the Person to be Arrested is Attempting
Is by Virtue of a Warrant of Arrest
Prevention of crime is just as commendatory as the capture of
It only applies when the arrest is made without a warrant of
criminals. Surely the officer must not be forced to await the
arrest which is lawful under the circumstance. If the arrest is
commission of robbery or other felony. The rule is supported
made with a warrant of arrest, the person arrested can be
by the necessities of life. The applicable principles rest upon the
detained indefinitely until his case is decided by the court or he
same foundation of reason and common sense.
posts a bail for his temporary release.
• The reason for is that there is already a complaint or
Escapee
information filed against him with the court which
A person may be validly arrested without warrant is when he
issued the order or warrant of arrest and it is not
has escaped from confinement. The right of arrest is founded
necessary to deliver such person thus arrested to that
on the principle that at the time, the crime is evasion.
court.
If Arrested Without Warrant, Procedure Violation of Article 125 Does Not Affect Legality of
The person arrested without a warrant shall be delivered to the Confinement Under Process Issued by the Court
nearest police station or jail, and he shall be proceeded against The failure of the arresting officer to deliver the person arrested
in accordance with Rule 112, Section 7. to the judicial authority within the time specified does not affect
the legality of the confinement of the petitioner who is detained
When a person is lawfully arrested without a warrant involving due to a subsequently issued warrant of arrest.
an offense which requires preliminary investigation, the • It is not one of the grounds one can predicate for a
complaint or information may be filed by the prosecutor motion to quash the information.
without need of such investigation provided an inquest has
been conducted in accordance with the existing Rules. Fiscal Not Liable, Unless He Ordered Detention
• In the absence or unavailability of the inquest If the fiscal does not file the information within the period
prosecutor, the complaint may be filed by the prescribed by law and the arresting officer continues holding
offended party or a peace officer directly with the the prisoner, the fiscal will not be held liable for he is not the
proper court on the basis of the affidavit of the one who arrested or illegally detains the person unless such
offended party or arresting officer or person. fiscal ordered or induced the arresting officer to hold and not
release the prisoner after the expiration of said period.
“Shall fail to deliver such person
to the proper judicial authorities” Remedy when Warrant was Improperly Issued
What constitutes the violation of Article 125 is the failure to If detained without a preliminary investigation, what should
deliver the person arrested to the proper judicial authority have been done was to set aside the warrant of arrest and order
within the period specified therein. the discharge of the accused, but without enjoining the
municipal judge from conducting a preliminary examination
Delivery does not consist in a physical delivery, but in making and afterwards properly issuing a warrant of arrest.
an accusation or charge or filing of an information against the
person arrested with the corresponding court or judge whereby Rights of the Person
the latter shall acquire jurisdiction to issue an order of release 1. Informed of the cause of his detention.
or of commitment of the prisoner, because the arresting officer 2. He shall be allowed, upon his request, to communicate
cannot transfer to the judge and the latter does not assume the and confer at anytime with his attorney or counsel.
physical custody of the person arrested. A prevention of by a public officer will make him liable under
RA 857 punishable by arresto mayor.
Proper Judicial Authorities
It means the courts of justices or judges of said courts vested DETENTION UNDER RA 9372
with judicial power to order the temporary detention or
confinement of a person charged with having committed a Time for Delivery
public offense. The time of delivery od detained persons prescribed under
• Even if an MTC in performance of function to conduct Article 125 does not apply to suspected terrorists who are
preliminary investigation retains the power to issue an detained under RA 9372.
order of release or commitment.
Any person charged with or suspected of the crime of terrorism
Detained Person Should be Released or the conspiracy to commit terrorism shall be delivered to the
When Judge is Not Available proper judicial authority within a period of three day counted
When such judge is not available, the arresting officer is duty- from the moment the said charged or suspected person has
bound to release a detained person, if the maximum hours for been apprehended or arrested, detained, and taken into
detention provided under Article 125 has already expired, for a custody by the said police (Section 18, RA 9372).
failure to cause release constitutes a violation under such.
Judge Must be Notified Before Suspected is Detained
Waiver of the Provision of Article 125 The police concerned must present the suspect before any
Before the complaint of information is filed, the person arrested judge at the latter’s residence or office nearest the place where
may ask for a preliminary investigation in accordance with the the arrest took place at any time of the day or night. It shall be
Rules, but he must sign a waiver of the provisions of Article 125 duty of judge to ascertain the identity of police and the person
in presence of his counsel. Notwithstanding the waiver, he may arrested who was presented, inquire reasons and observe.
apply for bail, and the investigation must be terminated within
15 days from its inception. Period of Detention in Event of Actual or Imminent
Terrorist Attack
Circumstances Considered in Determining Liability of Suspects may not be detained for more than three days without
Officer Detaining a Person Beyond Legal Period the written approval of a judge or a municipal, city, provincial
1. The means of communication or regional official of a Human Rights Commission. The
2. The hour of arrest approval in writing shall be secured by the police. If no
3. Other circumstances such as time of surrender. connection to the terror attack, release.
Article 126. Delaying release. – The penalties provided Cases under Arbitrary Detention and Expulsion
for in Article 124 shall be imposed upon any public
officer or employee who delays for the period of time UMIL v. RAMOS (1990)
specified therein the performance of any judicial or
executive order for the release of a prisoner or detention Facts: These are eight petitions for habeas corpus. Respondents
prisoner, or unduly delays the service of the notice of uniformly assert that the privilege of the right of habeas corpus
such order to said prisoner or the proceedings upon any is not available to the petitioners as they have been legally
petition ofr the liberation of such person. arrested and are detained by virtue of valid informations filed in
court against them.
Three Acts Punishable
1. By delaying the performance of a judicial or executive Petitioners contend that the detention was unlawful as their
order for the release of a prisoner. arrests were made without warrant and that no preliminary
2. By unduly delaying the service of the notice of such investigation was fist conducted so the informations are void.
order to the said prisoner.
3. By unduly delaying the proceedings upon any petition The court has reviewed and finds that the persons detained
for the liberation of such person. have not been illegally arrested nor arbitrarily deprived of
their constitutional right to livery and the circumstances foe
ELEMENTS OF DELAYING RELEASE not warrant their release on habeas corpus.
1. That the offender is public officer or employee
2. That there is a judicial or executive order for the Arrest Without Warrant, Justified
release of a prisoner or detention prisoner, or that It is justified when the person is caught in flagrante delicto or
there is proceeding upon a petition for the liberation in the act of committing an offense, or when an offense has just
of such person. been committed and the person making the arrest has personal
3. That the offender with good reason delays any of the knowledge of the facts indicating that the person arrested has
acts mentioned. committed it. The rationale was under People v. Malasugui:
To hold that no criminal can be arrested and searched for the evidence
Article 127. Expulsion. – The penalty of prision
and tokens of his crime without a warrant would be to leave society to a
correccional shall be imposed upon any public officer or large extent at the mercy of the shrewdest, the most expert and the
employee, who, not being thereunto authorized by law, most depraved of criminals facilitating their escape in many instances.
shall expel any person from the Philippine Islands or
shall compel such person to change his residence. The record of the instant cases would show that the person in
whose behalf have been filed had freshly committed or were
Two Acts Punishable actually committing an offense, when apprehended, so that
1. By expelling a person from the Philippines their arrests without warrant was clearly justified, and that they
2. By compelling a person to change his residence are detained by virtue of valid information field against them.
ELEMENTS Petition 1. Umil v. Ramos

a. That the offender is a public officer or employee February 1, 1988 the Reginal Intelligence Operations Unit of
b. That he expels any person from the Philippines, or Capital Command received confidential information about a
compels a person to change his residence member of the NPA Sparrow Unit (liquidation squad) being
c. That the offender is not authorized to do so by law. treated for a gunshot wound at St. Agnes Hospital in Quezon
City. Upon verification, it was found that the wounded person
“Not being thereunto authorized by law” listed in hospital records as Ronnie Javelon, is actually Rolando
Only the court by a final judgment can order a person to change Dural, a member of the NPA liquidation squad whom were
his residence. Usually in ejectment, expropriation and in the responsible for the killing of two CAPCOM soldiers the day
penalty of destierro. before on January 31, 1988 in Caloocan City.
Hence the Mayor and the Chief of Police of Manila cannot force In view of this verification, Rolando Dural was transferred to
the prostitutes in that City to go to and live in Davao against Regional Medical Services of CAPCOM for security reasons.
their will, there being no law that authorizes them do so. These While confined thereat, or on February 4, 1988, he was
women, even though lepers of society, are not chattels, but also positively identified by eyewitness as the gunman who wen on
Philippine citizens (Villavicencio v. Lukban). top of the hood of the CAPCOM Mobile Patrol car and fired at
the two CAPCOM soldiers seated inside the car identified as
T/Sgt. Carlos Pabon and CIC Renato Manligot.
Dural was referred to the Caloocan City Fiscal who conducted

an inquest and thereafter filed with RTC Caloocan City an
information charging Dural with Double Murder with Assaults
Upon Agents of Persons in Authority.
On February 6, 1988, a petition for habeas corpus was filed in Renato (Ka Mong) could not produce ant permit or authority to
the SC in behalf of Roberto Umil, Rolando Dural and Renato possess the firearms, ammunition, radio and other
Villanueva. The Court issued the writ on February 9 and communications equipment. Thus, he was brought to the CIS
respondents filed for a return of the writ on February 12 thus headquarters for investigation. When questioned, he refused to
they were heard in February 15. give a written statement, although he admitted that he was a
staff member of the executive committee of the NUFC and a
On February 26, Roberto Umil and Renato Villanueva posted ranking member of the International Department of the CPP.
bail before the RTC Pasay where charges for violation of the
Anti-Subversion Act had been filed against them, and released. 8:00AM of the same day, Wilfredo Buenaobra (Ka Miller) arrived
The petition for bail insofar for Umil and Villanueva is now moot at the house, when accosted he readily admitted to the military
and academic and is accordingly dismissed since the writ of agents that he was a regular member of the CPP/NPA. Among
habeas corpus does not lie in favor of accused on bail. items taken were three handwritten letters and a piece of paper
with jumbled telephone number of Florida M. Roque, Amelia’s
As to Rolando Dural, it clearly appears that he was not arrested sister.
while in the act of shooting the two CAPCOM soldiers nor was
he arrested just after the commission of the said offense for his Acting on the lead provided, the military agents when to the
arrest came a day after the shooting incident, under this address on August 13, 1988 a search was conducted. They
reason his arrest was unjustified. found ledgers, journals, vouchers, bank deposit books as well
as live ammunitions and fragmentation grenade. Amelia (Ka
However, Rolando Dural was arrested for being a member of Nelia) admitted that the voluminous documents belonged to
the New People’s Army an outlawed subversive organization. her and that the other occupants of the house had no
Subversion being a continuing offense, the arrest of Dural knowledge of them.
without warrant is justified as it can be said that he was
committing an offense when arrested. Wilfredo. August 24, 1988, a petition for habeas corpus was
• Rebellion, subversion, conspiracy or proposal to filed on behalf of Amelia Roque and Wilfredo Buenaobra, but
commit such rimes, and crimes and offenses Wilfredo manifested he wants to stay making it moot for him.
committed in furtherance there of or in connection
therewith constitute direct assaults against the State Amelia. The contention that they were members of NUFC of
are in the nature of continuing crimes. the CPP was not controverted or transverse by said petitioners.
• The double murder chase was found guilty and he is The contention must be deemed admitted. Same reasons under
now serving the sentence imposed upon him by the Rolando Dural it was additionally justified for the possession of
trial court. Thus, the writ of habeas corpus is no longer ammunitions without license to possess them.
available to him.
Petition 3. Anonuevo v. Ramos
Petition 2. Roque v. De Villa Both are admittedly members of the standing committee of the
The arrest of Amelia Roque and Wilfredo Buenaobra, without NUFC and when apprehended in the house of Renato
warrant is also justified. When apprehended at the house of Constantino, they had a bag containing subversive materials
Renate Constantino in Marikina Heights, Metro Manila, and both carried firearms and ammunitions without license.
Wilfredo admitted that he was an NPA courier and he had with
him letter to Renato Constantino and another member of the Around 7:30 o’clock in the evening of August 12, 1988,
rebel group. Amelia on the other hand was a member of the Domingo T. Anonuevo (Ka Ted) and Ramon Casiple (Ka
National United Front Commission, in charge of finance and Totoy) arrived at the house of Renato which was still under
admitted ownership of subversive documents found in the surveillance by military agents. The military noticed bulging
house of her sister in Caloocan City and possession of objects on their waist lines. When frisked, the agents found
ammunition and a fragmentation grenade without permit. them to be loaded guns. They were asked for permit or license
to possess or carry firearms, but they could not produce any.
June 27, 1988 one Rogelio Ramos Y Ibanes, a member of the They were brought to PC HQ for investigation.
NPA who surrender to military told about the operations of the
CPP-NPA in Metro Manila. He identified some of his former August 15, 1988 evidence were forwarded to Provincial Fiscal
comrades. He also pointed to a certain house occupied by of Pasig who conducted an inquest after which charged them
Renato Constantino which was used as a safehouse of the NUFC or violation PD 1866 before RTC Pasig.
of the CPP-NPA.
August 24, 1988 petition for habeas corpus was filed alleging
August 12, 1988 the house was placed under military that they were both unlawfully arrested without a warrant and
surveillance pursuant to a search warrant issued by Jude that the information were null and void for not having been
Eutropio Migrino of the RTC Pasig, a search of the house was filed without prior hearing and preliminary investigation.
conducted around 5:00PM by a combined team of the Criminal
Investigation Service and the Constabulary Security Group. August 30, 1988 the court issued the writ, but received a
Return of the Writ, the parties were heard.
On warrantless arrest. The records show that they were carrying The petitioners, however, have not introduced any evidence to
unlicensed firearms. support their aforesaid claim. On the other hand, no evil motive
or ill-will on the part of the arresting officers that would cause
On lack of preliminary investigation. In their second argument, the said arresting officers in these cases to accuse the
the filing on an information without a preliminary investigation petitioners falsely, has been shown.
having been first conducted is found in the Rules. Rule 112, • Do not appear to be seekers of glory and bounty
Section 7 of the Rules of Court. hunters.
However, before the filing of such complaint or information, the • The arrest of the petitioners is not a product of a witch
person arrested may ask for a preliminary investigation by a proper hunt or a fishing expedition, but the result of an in-
officer in accordance with this rule, but he must sign a waiver of the depth surveillance of NPA safehouses pointed to by
provisions of Article 125 of the RPC with the assistance of a lawyer.
no less than former comrades of the petitioners in the
rebel movement.
The petitioners refused to sign a waiver of the provisions of
Article 125 of the RPC. The prosecutor certified that there was
Solicitor General’s Memorandum: They were arrested in such
no waiver of such thus there was no preliminary investigation.
time, place and circumstances, from which one can reasonably
• They did not even ask after filing, they are not
conclude that they were up to a sinister plot, involving utmost
deprived of their due process.
secrecy and comprehensive conspiracy.
Petition 4. Ocaya v. Aguirre
Petition 6. Espiritu v. Lim
In this case, the arrest without warrant, of Vicky Ocaya is
The record of the case shows that the said Deogracias Espiritu
justified under the Rules, since she had with her unlicensed
is the General Secretary of the Pinagkaisahang Samahan ng
ammunition when she was arrested.
Tsuper at Operators Nationwide (PISTON), an association of
drivers and operators of public service vehicles in the
12 May 1988, agents of the PC Intelligence and Investigation of
Philippines, organized for their mutual aid and protection.
the Rizal PC-INP Command, armed with a search warrant issued
by Judge Eutropio Migrino of the Regional Trial Court of Pasig,
Espiritu’s Contention: 5:00AM of November 23, 1988, while he
Metro Manila, conducted a search of a house located at Block
was sleeping in his home Sta. Mesa, Manila, he was awakened
19, Phase II, Marikina Green Heights, Marikina, Metro Manila,
by his sister that a group of persons wanted to hire his jeepney.
believed to be occupied by Benito Tiamson, head of the CPP-
When he went down to talk to them, he was immediately put
NPA.
under arrest. When he asked for the warrant of arrest, the men,
headed by Col. Ricardo Reyes, bodily lifted him and placed him
In the course of the search, Vicky Ocaya arrived in a car driven
in their owner-type jeepney.
by Danny Rivera. Subversive documents and several rounds of
ammunition for a .45 cal. pistol were found in the car of Vicky
He was brought to Police Station No. 8 of the Western Police
Ocaya. As a result, Vicky Ocaya and Danny Rivera were brought
District at Blumentritt, Manila where he was interrogated and
to the PC Headquarters for investigation. When Vicky Ocaya
detained. Then, at about 9:00 o’clock of the same morning, he
could not produce any permit or authorization to possess the
was brought before the respondent Lim and, there and then,
ammunition, an information charging her with violation of PD
the said respondent ordered his arrest and detention. He was
1866 was filed with the Regional Trial Court of Pasig, Metro
thereafter brought to the General Assignment Section,
Manila. Danny Rivera, on the other hand, was released from
Investigation Division of the Western Police District under
custody.
Police Capt. Cresenciano A. Cabasal where he was detained,
restrained and deprived of his liberty.
On 17 May 1988, a petition for habeas corpus was filed, with
this Court on behalf of Vicky Ocaya and Danny Rivera. It was
Respondent’s Contention: The detention of the petitioner is
alleged therein that Vicky Ocaya was illegally arrested and
justified in view of the Information filed against him before the
detained, and denied the right to a preliminary investigation. It
RTC Manila charging him with violation of Art. 142 of the
would appear, however, that Vicky Ocaya was arrested in
Revised Penal Code (Inciting to Sedition).
flagranti delicto so that her arrest without a warrant is justified.
No preliminary investigation was conducted because she was
The respondents also claim that the petitioner was lawfully
arrested without a warrant and she refused to waive the
arrested without a judicial warrant of arrest since petitioner
provisions of Article 125 of the Revised Penal Code, pursuant to
when arrested had in fact just committed an offense in that in
Sec. 7, Rule 112 of the Rule of Court, as amended.
the afternoon of 22 November 1988, during a press
conference at the National Press Club.
Petition 5. Issue on Planted Evidence
• Through tri-media was heard urging all drivers and
Vicky Ocaya, Domingo Anonuevo, Ramon Casiple, and Amelia
operators to go on nationwide strike on November 23,
Roque claim that the firearms, ammunition and subversive
1988, to force the government to give in to their
documents alleged to have been found in their possession
demands to lower the prices of spare parts,
when they were arrested, did not belong to them, but were
commodities, water and the immediate release from
“planted” by the military agents to justify their illegal arrest.
detention of the president of the PISTON.
• He gave the lawmen a slip when they waited for Contention of Petitioners: Handed down during dictatorial
outside the National Press Club. regime, and that has no place under the present democratic
dispensation and collides with the basic, fundamental, and
Next seen around 5:00 o’clock that afternoon at a gathering constitutional rights of the people. Petitioners point out that
of drivers and symphatizers at the corner of Magsaysay Blvd. the said doctrine makes possible the arrest and detention of
and Valencia Street, Sta. Mesa, Manila. innocent persons despite lack of evidence against them.
Facts: The police finally caught up with the petitioner on 23 Held: No compelling reason to abandon the said doctrine. It is
November 1988. He was invited for questioning and brought to based upon express provision of the Rules of Court and the
police headquarters after which an Information for violation of exigencies served by the law.
Art. 142 of the Revised Penal Code was filed against him before
the Regional Trial Court of Manila. Rationale: In all petitions for habeas corpus the court must
inquire into every phase and aspect of petitioner’s detention—
Held: Since the arrest of the petitioner without a warrant was from the moment petitioner was taken into custody up to the
in accordance with the provisions of Rule 113, Sec. 5(b) of the moment the court passes upon the merits of the petition;” and
Rules of Court and that the petitioner is detained by virtue of a “only after such a scrutiny can the court satisfy itself that the due
valid information filed with the competent court, he may not be process clause of our Constitution has in fact been satisfied.
released on habeas corpus. He may, however be released upon
posting bail as recommended. PEOPLE v. BURGOS (1986)
Petition 7. Nazareno v. Station Commander Facts: Appeal from the decision of RTC Davao del Sur
On December 14, 1988 at 8:30AM Romulo Bunye II was killed convicting Ruben Burgos y Tito of the crime of Illegal Possession
by a group of men in Alabang, Muntinglupa, Metro Manila. One of Firearms in Furtherance of Subversion.
of the suspects in the killing was Ramil Regala who was
arrested on 28 December 1988. Upon questioning, Regala Information: May 13, 1982 at Tiguman, Digos with intent to
pointed to Narciso Nazareno as one of his companions in the possess without license, permit or authority, did then and there
killing of the said Romulo Bunye II. In view thereof, the police wilfully, unlawfully and feloniously keep, possess, carry and
officers, without warrant, picked up Narciso Nazareno and have in his possession, control and custody one (1) homemade
brought him to the police headquarters for questioning. revolver, caliber .38, make Smith and Wesson, with Serial No.
• January 3, 1989 an information of guilty was filed. 8.69221, which firearm was issued to and used by the accused
• January 7, 1989, bail but denied. at Tiguman, Digos, Davao del Sur, his area of operations by one
• January 13, 1989, petition for habeas corpus. Alias Commander Pol for the New People’s Army (NPA), a
subversive organization of which the accused had knowledge,
Findings: Narciso Nazareno is in the custody of the respondents and which firearm was used by the accused in the performance
by reason of an information filed against him with the Regional of his subversive tasks such as the recruitment of New Members
Trial Court of Makati, Metro Manila which had taken cognizance to the NPA and collection of contributions from the members.
of said case and had, in fact, denied the motion for bail filed by
said Narciso Nazareno Evidence for the Prosecution: Pepito Bioco, and Sgt. Romeo
• Evidently, the arrest of Nazareno was effected by the Taroy, it appears that by virtue of an intelligent information
police without warrant pursuant to Sec. 5 (b), Rule 113, obtained by the Constabulary and INP units. May 12, 1982,
Rules of Court after he was positively implicated by his Cesar Masamlok personally and voluntarily surrendered to the
coaccused Ramil Regala in the killing of Romulo Bunye authorities at about 9:00 o’clock A.M. at Digos, Davao del Sur
II; and after investigation by the police authorities. Constabulary Headquarters, stating that he was forcibly
recruited by accused Ruben Burgos as member of the NPA,
Petition 8. Ruling threatening him with the use of firearm against his life, if he
refused. Along with his recruitment, accused was asked to
On Inapplicability of the Writ of Habeas Corpus contribute one (1) chopa of rice and one peso (P1.00) per month,
The rule is, that if a person alleged to be restrained of his liberty as his contribution to the NPA.
is in the custody of an officer under process issued by a court • May 13, 1982, 15 PC members with the help of the
or judge, and that the court or judge had jurisdiction to issue brother Pedro Burgos right in the house of accused,
the process or make the order, or if such person is charged the latter was called by the team and Pat. Bioco asked
before any court, the writ of habeas corpus will not be allowed. accused about his firearm, as reported by Cesar
As provided in Section 4, Rule 102 of the Rules of Court. Masamlok.
• At first accused denied possession of said firearm but
On the Abandonment of the Ilagan v. Enrile Doctrine later, upon question profounded by Sgt. Alejandro
A writ of habeas corpus is no longer available after an Buncalan with the wife of the accused, the latter
information is filed against the person detained and a warrant pointed to a place below their house where a gun was
of arrest or an order of commitment is issued by the court buried in the ground.
where said information has been filed.
Dug the ground and discovered the firearm – a Caliber .38 Allegation of Torture for Refusal of Admission on Firearm
revolver. Subversive documents - accused likewise pointed The investigation was conducted in the PC barracks, where he
to the team, subversive documents which he allegedly kept in was detained with respect to the subject firearm, which the
a stock pile of cogon, at a distance of three (3) meters apart investigator, wished him to admit but accused denied its
from his house. ownership. Because of his refusal, accused was mauled, hitting
• Pamphlet of eight leave of Pahayagan ng Partido him on the left and right side of his body which rendered him
Komunista ng Pilipinas etc. unconscious. Accused in an atmosphere of tersed solemnity,
• Allegedly issued to him by a certain Nestor Jimenez crying and with emotional attachment, described in detail how
(Pedipol) a team leader of the sparrow unit of the NPA he was tortured and the ordeals he was subjected.
responsible in the liquidation of target personalities • He was undressed, with only blindfold, pungent water
opposed to NPA movement. poured in his body and over his private parts, making
his entire body, particularly his penis and testicle,
Cesar Masamlok Testimony terribly irritating with pungent pain (May 13 and 14).
Former NPA convert, declared that on March 7, 1972, Ruben • May 15, 1982, he was seriously warned, if he will still
Burgos, Landrino Burgos, Oscar Gomez and Antonio Burgoz adamantly refuse to accept ownership of the subject
went to his house at 5:00PM. firearm, he will be salvaged, and no longer able to bear
• Ask for contribution of 1 chopa and 1 peso as member any further the pain and agony, accused admitted
of the NPA ownership of subject firearm.
• He has to join otherwise he and his family will be killed. • Made to sign the affidavit of five pages.
Also warned not to reveal anything with the
government authorities. Support of Denial of Extra-Judicial Admission
Accused then told him, he should attend a seminar scheduled 1. Honorata Arellano appeared and declared
on April 19, 1982. Along with this invitation, accused pulled out categorically, that the above-questions embraced in
from his waistline a .38 caliber revolver which Masamlok really the numbers allegedly stated in the extra-judicial
saw, being only about two (2) meters away from accused. confession of accused, involving her to such NPA
• April 19, 1982 attended the seminar the accused personalities, as Jamper, Pol, Anthony, etc., were not
were present. true because on the date referred on April 28, 1982,
none of the persons mentioned came to her house for
Ruben’s Statements in the Seminar treatment, neither did she meet the accused nor able
Very distinctly that he is an NPA together with his companions, to talk with him.
to assure the unity of the civilian. That he encouraged the group a. CE: Admitted being familiar, she was
to overthrow the government, emphasizing that those who personally charged with subversion and her
attended the seminar were already members of the NPA, and if son too but were dismissed.
they reveal to the authorities, they will be killed. Distributed the
pamphlets and shouted, ‘NPA will be victorious’. May 12, 1982 2. Barangay Captain of Tiguman, Digos, Salvador
– Masamlok surrendered Galaraga was presented who declared he was no
personally aware of any subversive activities of
Extra-judicial Confession of Ruben Burgos accused, being his neighbor and member of his barrio.
May 19, 1982, he administered the subscription of the extra- Attested to his good character and reputation as a
judicial confession of accused Ruben Burgos, marked as Exhibit law-abiding citizen, carpenter and farmer.
“E” for the prosecution, consisting of five (5) pages. a. CE: Lots of arrests by authorities in his barrio
involving subversive activities but were
Fiscal Lovitos, realizing that accused was not represented by released and publicly took oath.
counsel, requested the services of Atty. Anyog, whose office
is adjacent to the Fiscal’s Office, to assist accused in the 3. Urbana Burgos, for the firearm, that such was left in
subscription of his extra-judicial statement. their house by Cesar Masamlok and by one Pedipol on
• Fiscal Lovitos explained to him his constitutional rights May 10, 1982 and it was nighttime, and that they left
to remain silent, right to counsel and right to answer it to be claimed later and they were the one who
any question propounded or not. buried. Her husband was not in their house that time.
Defendant-Appellant’s Version of the Case Was the arrest of Ruben Burgos Lawful?
From his farm, the military personnel, whom he said he cannot Erred in Holding Search in the House?
recognize, brought him to the PC Barracks at Digos, Davao del Was there guilty beyond reasonable doubt?
Sur, and arrived there at about 3:00 o’clock, on the same date.
On Arrest: When police authorities went to the house of Ruben
At about 8:00 o’clock P.M., in the evening, he was investigated Burgos for the purpose of arresting him upon information given
by soldiers, whom he cannot identify because they were by Cesar Masamlok that the accused allegedly recruited him to
wearing a civilian attire. join the New People’s Army (NPA), they did not have any
warrant of arrest or search warrant with them.
Justification by the RTC: The Court stated that even if there They were still fishing for evidence of a crime not yet
was no warrant for the arrest of Burgos, the fact that “the ascertained. The subsequent recovery of the subject firearm on
authorities received an urgent report of accused’s involvement the basis of information from the lips of a frightened wife
in subversive activities from a reliable source (report of Cesar cannot make the arrest lawful.
Masamlok) the circumstances of his arrest, even without • Fruit of the poisonous tree. If an arrest without
judicial warrant, is lawfully within the ambit of Section 6-A of warrant is unlawful at the moment it is made, generally
Rule 113 of the Rules of Court and applicable jurisprudence on nothing that happened or is discovered afterwards
the matter. can make it lawful. The fruit of a poisoned tree is
necessarily also tainted.
On Search and Seizure: If the arrest is valid, the consequent
search and seizure of the firearm and the alleged subversive Undue Haste. There is no showing that there was a real
documents would become an incident to a lawful arrest as apprehension that the accused was on the verge of flight or
provided by Rule 126, Section 12, which states: “A person escape. Likewise, there is no showing that the whereabouts of
charged with an offense may be searched for dangerous weapons the accused were unknown.
or anything which may be used as proof of the commission of the • Neither can it be presumed that there was a waiver, or
offense.” that consent was given by the accused to be searched
simply because he failed to object.
• Courts shall indulge every reasonable presumption
RULING against waiver of fundamental constitutional rights.
The conclusions reached by the trial court are erroneous. • Accused was no apprised of any of his constitutional
rights at the time of the arrest.
Rule on Personal Knowledge in Warrantless Arrests
In invoking Rule 113, Section 5 in arresting a person who has Obtained in Violation of Constitutional Rights
just committed, is committing, or is about to commit an Considering that the questioned firearm and the alleged
offense, the officer must have personal knowledge of that fact. subversive documents were obtained in violation of the
The offense must also be committed in his presence or within accused’s constitutional rights against unreasonable searches
his view. and seizures, it follows that they are inadmissible as evidence.
We cannot liberally construe the rule on arrests without warrant Violation of the Right Against Self-Incrimination
or extend its application beyond the cases specifically provided It should be recalled that the accused was never informed of his
by law. To do so would infringe upon personal liberty and set constitutional rights at the time of his arrest. So that when the
back a basic right so often violated and so deserving of full accused allegedly admitted ownership of the gun and pointed
protection. An exception must be strictly construed. to the location of the subversive documents after questioning,
the admissions were obtained in violation of the constitutional
In this case: There is no such personal knowledge in this case. right against self-incrimination.
Whatever knowledge was possessed by the arresting officers, it
came in its entirety from the information furnished by Cesar Thus, the evidence cannot be used against him.
Masamlok. The location of the firearm was given by the
appellant’s wife. On the Issue of Extra-Judicial Confession
• At the time of the appellant’s arrest, he was not in Accused-appellant was not accorded his constitutional right to
actual possession of any firearm or subversive be assisted by counsel during the custodial interrogation. The
document. Neither was he committing any act which lower court correctly pointed out that the securing of counsel,
could be described as subversive. He was, in fact, Atty. Anyog, to help the accused when he subscribed under
plowing his field at the time of the arrest. oath to his statement at the Fiscal’s Office was too late.
Reasonable Ground Must be With Testimony of Masamlok Inadequate

Actual or Factual Commission of the Crime It is true that the trial court found Masamlok’s testimony
It is not enough that there is reasonable ground to believe that credible and convincing. However, we are not necessarily
the person to be arrested has committed a crime. A crime must bound by the credibility which the trial court attaches to a
in fact or actually have been committed first. That a crime has particular witness. Masamlok’s testimony was totally
actually been committed is an essential precondition. It is not uncorroborated. Considering that Masamlok surrendered to
enough to suspect that a crime may have been committed. The the military, certainly his fate depended on how eagerly he
fact of the commission of the offense must be undisputed. The cooperated with the authorities.
test of reasonable ground applies only to the identity of the • There are those who could have corroborated.
perpetrator. • This Court is, therefore, constrained to rule that the
evidence presented by the prosecution is insufficient
In this case: the accused was arrested on the sole basis of to prove the guilt of the accused beyond reasonable
Masamlok’s verbal report. Masamlok led the authorities to doubt.
suspect that the accused had committed a crime.
Held: Violations of human rights do not help in overcoming a Joint Affidavit of Desistance. On August 23, 2000, all the private
rebellion. A cavalier attitude towards constitutional liberties and offended parties, namely, Elpidio E. Simon, Moises de la Cruz,
protections will only fan the increase of subversive activities Renato Militante, Crisanto Pelias and Wenefredo Maniscan,
instead of containing and suppressing them. executed a Joint Affidavit of Desistance.
• what transpired may have been caused by human
Judgment of Conviction is reversed and set aside, Appellant limitation aggravated by the exhaustion of the team in
Burgos is hereby acquitted. scouring the shores of the small islands of Samar for
several days
ASTORGA v. PEOPLE • Our respect for him prevailed when he ordered us to
take dinner with him and other local residents thereat,
Facts: Reconsideration of the crime of arbitrary detention so we capitulated whose invitation was misinterpreted
conviction. Private offended parties Elpidio Simon, Moises de la by us
Cruz, Wenefredo Maniscan, Renato Militante and Crisanto • Natural and spontaneous conversation between the
Pelias are members of the Regional Special Operations Group team and the group of Mayor Astorga during the
(RSOG) of the Department of Environment and Natural dinner and we were eventually allowed to leave
Resources, Tacloban City. Daram, Samar
Private offended party did not appear anymore in court to
September 1, 1997, they, together with SPO3 Andres B. Cinco, testify. Yet the Sandiganbayan continued to convict officer.
Jr. and SPO1 Rufo Capoquian of the Philippine National Police
Regional Intelligence Group, were sent to the Island of Daram, Fear a state of mind and is necessarily subjective.13 Addressed
Western Samar to conduct intelligence operations on possible to the mind of the victim its presence cannot be tested by any
illegal logging activities. hard-and-fast rule but must instead be viewed in the light of
• At around 4:30-5:00 p.m., the team found two boats the perception and judgment of the victim at the time of the
measuring 18 meters in length and 5 meters in crime.
breadth being constructed at Locob-Locob. There
they met Mayor of Daram, Benito Astorga. A heated Proof Beyond Reasonable Doubt
altercation ensued between petitioner and team. Presumed innocent until the contrary is proved. He is entitled
to an acquittal unless his guilt is shown beyond reasonable
Petitioner called for reinforcements and, moments later, a boat doubt. Proof beyond reasonable doubt does not mean such a
bearing ten armed men, some wearing fatigues, arrived at the degree of proof as, excluding possibility of error, produces
scene. The DENR team was then brought to petitioner’s absolute certainty. Moral certainty only is required, or that
house in Daram, where they had dinner and drinks. The degree of proof which produces conviction in an unprejudiced
team left at 2:00 a.m. mind.
• Charged with Article 124 in Sandiganbayan.
As held in several cases, when the guilt of the accused has not
Elements of the Crime of Arbitrary Detention been proven with moral certainty, the presumption of
1. That the offender is a public officer or employee innocence of the accused must be sustained and his
2. That he detains a person exoneration be granted as a matter of right. For the
3. That the detention is without legal grounds prosecution’s evidence must stand or fall on its own merit and
cannot be allowed to draw strength from the weakness of the
The determinative factor in Arbitrary Detention, in the absence evidence for the defense.
of actual physical restraint, is fear. After a careful review of
the evidence on record, we find no proof that petitioner Held: When the circumstances are capable of two or more
instilled fear in the minds of the private offended parties. inferences, as in this case, one of which is consistent with the
presumption of innocence while the other is compatible with
In this case: We fail to discern any element of fear from the guilt, the presumption of innocence must prevail, and the court
narration of SPO1 Rufo Capoquian, the police officer who must acquit. It is better to acquit a guilty man than to convict
escorted the DENR Team during their mission. On the contrary, an innocent man. Reconsidered and set aside, conviction
what appears is that petitioner, being then a municipal mayor, reversed. Astorga acquitted.
merely extended his hospitality and entertained the DENR
Team in his house. PEOPLE v. FLORES (2001)
Testimonial evidence: shows that there was no actual restraint Principle: Accused appellants cannot be charged with or
imposed on the private offended parties. SPO1 Capoquian in convicted of the crime of Kidnapping and Serious Illegal
fact testified that they were free to leave the house and roam Detention since the first element of the crime is that the
around the barangay. Furthermore, he admitted that it was offender must be a private individual. In this case, the accused
raining at that time. Hence, it is possible that petitioner appellants were members of the local CAFGU at the time the
prevented the team from leaving the island because it was alleged crime was committed.
unsafe for them to travel by boat.
The CAFGU was created pursuant to EO 264 for the purpose of RA 9372
complementing the operations of the regular force formations SEC. 18. Period of Detention Without Judicial Warrant of Arrest.
in a locality. It was composed of civilian volunteers who were - The provisions of Article 125 of the Revised Penal Code to the
tasked to maintain peace and order in their localities as well as contrary notwithstanding, any police or law enforcement personnel,
who, having been duly authorized in writing by the Anti-Terrorism
to respond to threats to national security.
Council has taken custody of a person charged with or suspected of
the crime of terrorism or the crime of conspiracy to commit
Arbitrary Detention is committed by any public officer or terrorism shall, without incurring any criminal liability for delay in the
employee who without legal ground, detains a person. Since it delivery of detained persons to the proper judicial authorities,
is settled that they are public officers such is shown. Detention deliver said charged or suspected person to the proper judicial
is defined as the actual confinement of a person in an enclosure authority within a period of three days counted from the moment
or in any manner detaining and depriving him of his liberty. the said charged or suspected person has been apprehended or
arrested, detained, and taken into custody by the said police, or law
enforcement personnel: Provided, That the arrest of those suspected
In the case: No sufficient evidence to prove the Samson Sayam
of the crime of terrorism or conspiracy to commit terrorism must
was detained arbitrarily by them. While witnesses testified that
result from the surveillance under Section 7 and examination of
they saw them walking with the victim toward the detachment bank deposits under Section 27 of this Act.
headquarters, there is no shred of evidence that he was
confined there or anywhere else. The police or law enforcement personnel concerned shall, before
• The fact that he has not been seen or heard from since detaining the person suspected of the crime of terrorism, present
he was last seen with the accused does not prove that him or her before any judge at the latter's residence or office nearest
he was detained and deprived of liberty. the place where the arrest took place at any time of the day or night.
It shall be the duty of the judge, among other things, to ascertain
the identity of the police or law enforcement personnel and the
IBP PANGASINAN LEGAL AID v. DOJ (2017) person or persons they have arrested and presented before him or
her, to inquire of them the reasons why they have arrested the
Rule: The rule is that a person subject of a warrantless arrest person and determine by questioning and personal observation
must be delivered to the proper judicial authorities within the whether or not the suspect has been subjected to any physical,
periods provided in Article 125 of the RPC, otherwise the public moral or psychological torture by whom and why. The judge shall
official could be held liable for failure to deliver. then submit a written report of what he/she had observed when the
subject was brought before him to the proper court that has
jurisdiction over the case of the person thus arrested. The judge shall
Article 125 is intended to prevent any abuse resulting from
forthwith submit his/her report within three calendar days from the
confining a person without informing him of his offense and time the suspect was brought to his/her residence or office.
without allowing him to post bail. This can be waived if the
detainee who was validly arrested without a warrant opts for Immediately after taking custody of a person charged with or
the conduct of preliminary investigation. suspected of the crime of terrorism or conspiracy to commit
terrorism, the police or law enforcement personnel shall notify in
Can such waiver allow indefinite detention? writing the judge of the court nearest the place of apprehension or
arrest: Provided ,That where the arrest is made during Saturdays,
Sundays, holidays or after office hours, the written notice shall be
Held: No. The waiver does not vest upon the DOJ and PNP the
served at the residence of the judge nearest the place where the
unbridled right to indefinitely incarcerate an arrested person accused was arrested.
and subject him to the whims and caprices of the reviewing
prosecutor of the DOJ. The waiver must coincide with the The penalty of ten (10) years and one day to twelve (12) years of
prescribed period for preliminary investigation as imprisonment shall be imposed upon the police or law enforcement
mandated by Rule 112, Section 7. personnel who fails to notify and judge as Provided in the preceding
paragraph.
A waiver of Article 125 is not a license to detain a person ad
SEC. 19. Period of Detention in the Event of an Actual or Imminent
infinitum. The waiver of a detainee’s right to be delivered to
Terrorist Attack. - In the event of an actual or imminent terrorist
proper judicial authorities does not trump his constitutional attack, suspects may not be detained for more than three days
right where probable cause was initially found wanting because without the written approval of a municipal, city, provincial or
of dismissal of complaint or dismissal on appeal. regional official of a Human Rights Commission or judge of the
municipal, regional trial court, the Sandiganbayan or a justice of the
Accordingly, the Court rules that a detainee’s right must be Court of Appeals nearest the place of the arrest. If the arrest is made
respected, and that despite a waiver of Article 125, and that if during Saturdays, Sundays, holidays or after office hours, the
arresting police or law enforcement personnel shall bring the person
the 15-day period (or 30-day period in cases of RA 9165) for
thus arrested to the residence of any of the officials mentioned
the conduct of preliminary investigation lapses a detainee must
above that is nearest the place where the accused was arrested. The
be released. This also applies when the investigating prosecutor approval in writing of any of the said officials shall be secured by the
resolves to dismiss the case, even if such dismissal was under police or law enforcement personnel concerned within five days
appeal or review to the DOJ. after the date of the detention of the persons concerned: Provided,
however, That within three days after the detention the suspects,
whose connection with the terror attack or threat is not established,
shall be released immediately.
SEC. 20. Penalty for Failure to Deliver Suspect to the Proper VILLAVICENCIO v. LUKBAN (1919)
Judicial Authority within Three Days. - The penalty of (10) years
and one day to twelve (12) years of imprisonment shall be imposed
Facts: Mayor of Manila, Justo Lukban, to exterminate vice,
upon any police or law enforcement personnel who has
ordered the segregated district for women of ill repute, which
apprehended or arrested, detained and taken custody of a person
charged with or suspected of the crime of terrorism or conspiracy to had been permitted for many years in the city of Manila, closed.
commit terrorism and fails to deliver such charged or suspected They were kept confined to their houses in the district by the
person to the proper judicial authority within period of three days. police. At any rate, about midnight of October 25, the police,
acting pursuant to orders from the chief of police, hustled some
SORIA v. DESIERTO (2005) 170 inmates into patrol wagons, and placed them aboard the
steamers that awaited their arrival. The women were given no
Facts: On or about 8:30 PM of May 13, 2001 a day before the opportunity to collect their belongings. They had no knowledge
elections, petitioners were arrested for alleged possession of that they were destined for a life in Mindanao. They had not
firearms and ammunition. Soria was arrested for having .38 been asked if they wished to depart from that region and had
caliber revolver in violation of the Omnibus Election Code. Bista neither directly nor indirectly given their consent.
was arrested for a sub-machine pistol UZI with ammunition.
The vessels reached their destination at Davao on October 29.
After their arrest, they were detained at Santa, Ilocos Sur, Police The women were landed and receipted for as laborers by
Station, it was there Bista was known to have a standing warrant Francisco Sales, provincial governor of Davao, and by Feliciano
of arrest for violation of BP 6. On May 14, 2001 at 4:30PM on Yñigo and Rafael Castillo. The governor and
Monday and the election day, they were brought to the the hacendero Yñigo, who appear as parties in the case, had no
residence of Prosecutor Viloria whom an affidavit was sworn. previous notification that the women were prostitutes who had
been expelled from the city of Manila. Suffice it to say,
At 6:30 of May 14, petitioner Soria was released upon the order generally, that some of the women married, others assumed
to undergo PI, while Bista was brought back and detained in the more or less clandestine relations with men, others went to
Police Station. From the time of detention and release, around work in different capacities, others assumed a life unknown and
22 hours had already elapsed. disappeared, and a goodly portion found means to return to
Manila.
At 4:30 of May 15, an information for Illegal Possession of
Firearms and Ammunition was filed against Bista. On June 08, Petition for Habeas Corpus made to include all of the women
2001 he was able to post bail. Was detained for 26 days. who were sent away from Manila to Davao and alleged that the
women were illegally restrained of their liberty by Justo Lukban,
Are Sundays, Holidays and election days excluded in the Mayor of the city of Manila, Anton Hohmann, chief of police of
counting for the delay under Article 125? the city of Manila, and by certain unknown parties. The writ was
made returnable before the full court. The city fiscal appeared
Discussion: Soria was charged with a correctional offense and for the respondents, Lukban and Hohmann, admitted certain
should have been charged within 18 hours, and for Bista was facts relative to sequestration and deportation, and prayed that
an afflictive offense which is 36 hours. the writ should not be granted because the petitioners were not
proper parties, because the action should have been begun in
From a study of the opposing views advanced by the parties, it the Court of First Instance for Davao, Department of Mindanao
is evident that public respondents did not abuse their discretion and Sulu, because the respondents did not have any of the
in dismissing for lack of probable cause the complaint against women under their custody or control, and because their
private respondents. jurisdiction did not extend beyond the boundaries of the city of
Manila.
Grave abuse of discretion is such capricious and whimsical
exercise of judgment on the part of the public officer concerned According to an exhibit attached to the answer of the fiscal, the
which is equivalent to an excess or lack of jurisdiction. The 170 women were destined to be laborers, at good salaries, on
abuse of discretion must be so patent and gross as to amount the haciendas of Yñigo and Governor Sales. In open court, the
to an evasion of a positive duty or a virtual refusal to perform a fiscal admitted, in answer to question of a member of the court,
duty enjoined by law, or to act at all in contemplation of law as that these women had been sent out of Manila without their
where the power is exercised in an arbitrary and despotic consent. Before the date mentioned, seven of the women had
manner by reason of passion or hostility. returned to Manila at their own expense. On the day named in
the order, December 2nd, 1918, none of the persons in whose
No grave abuse of discretion, as defined, can be attributed to behalf the writ was issued were produced in court by the
herein public respondents. Their disposition of petitioner’s respondents. It has been shown that three of those who had
complaint for violation of Article 125 of the Revised Penal Code been able to come back to Manila through their own efforts,
cannot be said to have been conjured out of thin air as it was were notified by the police and the secret service to appear
properly backed up by law and jurisprudence. It was backed up before the court.
and sound judgment that the days and official holidays must
not be counted.
By authority of what law did the Mayor and the Chief of Police that about this number either returned at their own expense or
presume to act in deporting by duress these persons from were produced at the second hearing by the respondents.
Manila to another distant locality within the Philippine Islands?
Their excuses for the non-production of the persons were far
Alien prostitutes can be expelled from the Philippine Islands in from sufficient. In other words, the return did not show that
conformity with an Act of congress. The Governor-General can every possible effort to produce the women was made by the
order the eviction of undesirable aliens after a hearing from the respondents.
Islands.
In response to the second order of the court, the respondents
Act No. 519 of the Philippine Commission and section 733 of appear to have become more zealous and to have shown a
the Revised Ordinances of the city of Manila provide for the better spirit.
conviction and punishment by a court of justice of any person
who is a common prostitute. Always a law! Agents were dispatched to Mindanao, placards were posted,
the constabulary and the municipal police joined in rounding
These women despite their being in a sense leper of society are up the women, and a steamer with free transportation to Manila
nevertheless not chattels but Philippine citizens protected by was provided.
the same constitutional guaranties as are other citizens — to
change their domicile from Manila to another locality. Our finding to this effect may be influenced somewhat by our
sincere desire to see this unhappy incident finally closed. If any
On the contrary, Philippine penal law specifically punishes any wrong is now being perpetrated in Davao, it should receive an
public officer who, not being expressly authorized by law or executive investigation.
regulation, compels any person to change his residence.
If any particular individual is still restrained of her liberty, it can
No official, no matter how high, is above the law. The courts are be made the object of separate habeas corpus proceedings.
the forum which functionate to safeguard individual liberty and
to punish official transgressors. Since the writ has already been granted, and since we find a
substantial compliance with it, nothing further in this
All this explains the motive in issuing the writ of habeas corpus, connection remains to be done.
and makes clear why we said in the very beginning that the
primary question was whether the courts should permit a The attorney for the petitioners asks that we find in contempt
government of men or a government of laws to be established of court. The power to punish for contempt of court should be
in the Philippine Islands. exercised on the preservative and not on the vindictive
principle. Only occasionally should the court invoke its inherent
As to criminal responsibility, it is true that the Penal Code in power in order to retain that respect without which the
force in these Islands provides: administration of justice must falter or fail.
Any public officer not thereunto authorized by law or by Held: When all is said and done, as far as this record discloses,
regulations of a general character in force in the Philippines the official who was primarily responsible for the unlawful
who shall banish any person to place more than two hundred deportation, who ordered the police to accomplish the same,
kilometers distant from his domicile, except it be by virtue of who made arrangements for the steamers and the
the judgment of a court, shall be punished by a fine of not less constabulary, who conducted the negotiations with the Bureau
than three hundred and twenty-five and not more than three of Labor, and who later, as the head of the city government, had
thousand two hundred and fifty pesetas. it within his power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor of the city
Any public officer not thereunto expressly authorized by law or of Manila.
by regulation of a general character in force in the Philippines
who shall compel any person to change his domicile or His intention to suppress the social evil was commendable. His
residence shall suffer the penalty of destierro and a fine of not methods were unlawful. His regard for the writ of habeas
less than six hundred and twenty-five and not more than six corpus issued by the court was only tardily and reluctantly
thousand two hundred and fifty pesetas. (Art. 211.) acknowledged.
They did not produce the bodies of the persons in whose behalf It would be possible to turn to the provisions of section 546 of
the writ was granted; they did not show impossibility of the Code of Civil Procedure, which relates to the penalty for
performance; and they did not present writings that waived the disobeying the writ, and in pursuance thereof to require
right to be present by those interested. respondent Lukban to forfeit to the parties aggrieved as much
as P400 each, which would reach to many thousands of pesos,
That through ordinary diligence a considerable number of the and in addition to deal with him as for a contempt.
women, at least sixty, could have been brought back to Manila
is demonstrated to be found in the municipality of Davao, and
Section Two – Violation of Domicile Elements of Procuring a Search Warrant Without Just Cause
a. Offender is a public officer or employee
Article 128. Violation of domicile. – The penalty of b. Procures a search warrant
prision correccional in its minimum period shall be c. That there is no just cause
imposed upon any public officer or employee who, not
being authorized by judicial order, shall enter any Search Warrant, Defined
dwelling against the will of the owner there of, search It is an order in writing issued in the name of the People of the
papers or other effects found therein without the Philippines signed by a judge and directed to a peace officer,
previous consent of such owner, or, having commanding him to search for personal property described
surreptitiously entered said dwelling, and being required therein and bring it before the court.
to leave the premises, shall refuses to do so.
Personal Property to be Seized
If the offense be committed in the nighttime, or if any a. Subject of the Offense
papers or effects not constituting evidence of a crime be b. Stolen or embezzled and other proceeds or fruits of
not returned immediately after the search may by the the offense
offender, the penalty shall be prision correctional in its c. Used or intended to be used as the means of
medium and maximum periods. committing the offense.
Three Acts Punishable under Article 128 Elements of Exceeding Authority or Using Unnecessary
1. By entering any dwelling against the will of the owner Severity in Executing a Legally Procured Search Warrant
2. By searching papers or other effects found therein a. That the offender is a public officer or employee
without the previous consent of such owner b. That he has legally procured a search warrant.
3. By refusing to leave the premises, after surreptitiously c. That he exceeds his authority or uses unnecessary
entered said dwelling and after having been required severity in the execution of the same.
to leave the same.
Example: Taking of personal letters, when the warrant is only for
Elements Common to Three Acts: opium. And if in searching a house, the public officer destroys
a. Offender is a public officer or employee furniture therein without justification.
b. That he is not authorized by judicial order to enter the
dwelling and/or to make search therein for paper or Article 130. Searching domicile without witness. – The
other effects. penalty of arresto mayor in its medium and maximum
periods shall be imposed upon a public officer or
“Against the Will of the Owner” employee who, in cases where a search is proper, shall
The entrance must be against the will of the owner of the search the domicile, papers, or other belongings of any
dwelling which presupposes opposition or prohibition by said person, in the absence of the latter, any member of his
owner whether express or implied. If the entrance was only family, or in their default, without the presence of two
without the consent of the owner the crime was not committed. witnesses residing in the same locality.
Right of Officer to Break building or Enclosure ELEMENTS

An officer, to make arrest by virtue of warrant or without 1. That the offender is a public officer or employee
warrant may break in building where the person to be arrested 2. That he is armed with search warrant legally procured
is or is reasonably believed to be, if he is refused admittance 3. That he searches the domicile, papers or other
thereto, after announcing his authority and purpose. belongings of any person.
4. That the owner, or any member of his family, or two
Article 129. Search warrants maliciously obtained, and witnesses residing in the same locality are not present.
abuse in the service of those legally obtained. – In
addition to the liability attaching to the offender for the NOTE: This refers to “cases where search is proper” for when
commission of any other offense, the penalty of arresto the search is not proper Article 128 on violation of domicile
mayor in its maximum period to prision correccional in applies in such case. This article does not apply to searches of
its minimum period and a fine not exceeding 1,000 pesos vehicles for they are not made in the dwelling.
shall be imposed upon any public officer or employee
who shall procure a search warrant without just cause, The public officers may examine the papers for finding in those
or, having legally procure the same, shall exceed his papers something against their owner; or his other belongings
authority or use unnecessary severity in executing the for the same purpose.
same.
But as the crime defined in Article 130 is one of the forms of
Punishable Acts violation of domicile, the papers or other belongings must be
1. Procuring search warrant without just cause in the dwelling of their owner at the time the search is made.
2. Exceed authority or use unnecessary severity (legal)
Section Three. – Prohibition, interruption and dissolution ELEMENTS

of peaceful meetings 1. That the offender is a public officer or employee.
2. That religious ceremonies or manifestations of any
Article 131. Prohibition, interruption, and dissolution of religion are about to take place or are going on.
peaceful meetings. – The penalty of prision correccional 3. That the offender prevents or disturbs the same.
in its minimum period shall be imposed upon any public
officer or employee who, without legal ground, shall Example. Preventing a religious ceremony that is to take place,
prohibit or interrupt the holding of a peaceful meeting, but a meeting of a sect is not a violation under Article 132.
or shall dissolve the same.
Article 133. Offending religious feelings. – The penalty of
The same penalty shall be imposed upon any public arresto mayor in its maximum period to prision
officer or employee who shall hinder any person from correccional in its minimum period shall be imposed
joining any lawful association or from attending any of upon anyone who, in a place devoted to religious
its meetings. worship or during the celebration of any religious
ceremony, shall perform acts notoriously offensive to
The same penalty shall be imposed upon any public the feelings of the faithful.
officer or employee who shall prohibit or hinder any
person from addressing, either alone or together with ELEMENTS
others, any petition to the authorities for the correction 1. That the acts complained of were performed:
of abuses or redress of grievances. a. In a place devoted to religious worship
b. During the celebration of any religious
Acts Punishable ceremony
1. By prohibiting or by interruption, without legal 2. That the acts must be notoriously offensive to the
ground, the holding of a peaceful meeting, or feelings of the faithful.
dissolving the same.
2. By hindering any person from joining any lawful Religious Ceremonies
association or form attending any of its meetings. These are those religious acts performed inside or outside
3. By prohibiting or hindering any person from church like procession and prayers for burying dead persons.
addressing, either alone or together with the others, But meetings of a congregation is not considered not a
any petition to the authorities for the correction of religious ceremony.
abuses or redress of grievances.
“Acts notoriously offensive to the feelings of the faithful”
Right to Peaceful Meeting, Not Absolute The acts must be directed against religious practice or dogma
It may be regulated in order that it may not be injurious to the or ritual for ridicule, as mocking or scoffing or attempting to
equal enjoyment of others having equal rights, nor injurious to damages an object of religious veneration.
the right of the community or society. This can be regulated by • Throwing stone at the minister of the Iglesia ni Cristo
the police power to promote good order and general welfare. who was preaching or spreading his beliefs.
• Applies to peaceable assemblies. • There must be deliberate intent to hurt the feelings of
the faithful.
NOTE: There is no legal ground to prohibit the holding of a • Offense is judge from complainant’s point of view.
meeting when the danger apprehended is not imminent and
the evil to be prevented is not a serious one. CASES
• The offender must be a stranger, not a participant in
the peaceful meeting or assembly. STONEHILL v. DIOKNO (1967)
Section Four. – Crimes Against Religious Worship Facts: Several judges issued on different dates, a total of 42
search warrants against petitioners and or the corporations of
Article 132. – Interruption of religious worship. – The which they were officers to search the persons above-named or
penalty of prision correccional in its minimum period the premises of their offices, warehouses and/or residences,
shall be imposed upon any public officer or employee and to seize and take possession of the personal property.
who shall prevent or disturb the ceremonies or
manifestations of any religion. The property seized included book of accounts, financial
records, journals, and other documents showing business
If the crime shall have been committed with violence or transactions including disbursements receipts and even
threats, the penalty shall be prision correccional in its cigarette wrappers as the subject of the offense, stolen or
medium and maximum periods. embezzled and fruits of the offense or as means to the
committing of the offense which is described in violation of
NOTE: When the crime is committed with violence or threats, Central Bank laws, Tariff and Customs Laws, and Internal
the crime is then qualified. Revenue Code and the RPC.
They alleged that the following search warrants are null and As a consequence, it was impossible for the judges who issued
void for contravening the Constitution and he Rules: the warrants to find probable cause for the particular acts or
1. They do not describe with particularity the documents, committing specific omissions. The applications involved do
books and things to be seized. not allege any specific acts. It would be a legal heresy of the
2. Cash money, not mentioned in the warrants were highest order to convict anybody of "violation of Central
seized. Bank Laws, Tariff and Customs Laws, Internal Revenue
3. Search warrants were issued to fish evidence against (Code) and Revised Penal Code,"—as alleged in the
the petitioners in the deportation cases against them. aforementioned applications—without reference to any
4. The searches and seizures were made in an illegal determinate provision of said laws or codes.
manner.
5. The document, papers, and cash money seized were To uphold the validity of the warrants in question would be to
not delivered to the courts that issued the warrant. wipe out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity
The documents, papers and things seized under the allaged of the domicile and the privacy of communication and
authority of the warrants in question are split into two: correspondence at the mercy of the whims, caprice or passion
1. Those found in the corporations. of peace officers.
2. Those found and seized in the residences.
This is precisely the evil sought to be remedied by the
Assailing Legality is for Inured Party and Purely Personal constitutional provision above quoted—to outlaw the so-called
As to the first group, petitioner have no cause of action to general warrants. It is not difficult to imagine, what would
assail the legality of the contested warrant for the simple happen, in times of keen political strife, when the party in power
reason that said corporations have their respective feels that the minority is likely to wrest it, even though by legal
personalities separate and distinct from the personality of means.
therein petitioners. This is regardless the shares of stock or of
the interest of each of them in said corporation and whatever Admissibility of Evidence: Abandonment of Moncado Rule
offices they may hold. The warrants authorized for the search for and seizure of
• Legality of a seizure can be contested only by the party records pertaining to all business transactions of petitioners
whose rights have been impaired thereby and that the therein regardless if legal or illegal. The warrants sanctioned the
objection to an unlawful search and seizure is purely seizure of all records of the petitioners whatever their nature.
personal and cannot be availed of by third parties.
Abandonment of the Non-Exclusionary Rule (Moncado)
Petitioners herein may not validly object to the use in evidence Respondent-Prosecutors maintain that under such ruling that if
against them of the documents, papers and things seized from searches and seizures under consideration were
the offices and premises since the right to object the admission unconstitutional, the documents, papers and things thus seized
in evidence belongs exclusively to the corporations whom are admissible in evidence against petitioners herein. Upon,
the evidence were seized. deliberation, the court unanimously of the opinion that the
position taken in the Moncado case must be abandoned.
Whether or not there was a valid search warrant and that the
seized property is admissible as evidence. In the case: It is contrary to both the spirit and letter of the
constitutional injunction against unreasonable searches and
Discussion: Petitioners maintain that the aforementioned seizures. Upon the other hand, if he has no such competent
search warrants are in the nature of general warrants and that evidence, then it is not possible for the Judge to find that there
thereof are null and void. is probable cause, and, hence, no justification for the issuance
of the warrant. Fishing expedition is indicative of the absence of
Constitutional Requirement: Article III, Section 2 evidence to establish a probable cause.
Two points must be stressed in connection with this there are:
1. That no warrant of arrest shall be issued except upon Held: The warrants for the search of three (3) residences are
probable cause, to be determined by the judge null and void; that the searches and seizures therein made are
personally after examination under oath. illegal; that the writ of preliminary injunction heretofore issued,
2. That the warrant shall particularly describe the things in connection with the documents, papers and other effects
to be seized. thus seized in said residences of herein petitioners is hereby
made permanent; that the writs prayed for are granted, insofar
In the case: None of these requirements has been complied as the documents, papers and other effects so seized in the
with in the contested warrants. Indeed, the same were issued aforementioned residences are concerned; that the
upon applications stating that the natural and juridical persons aforementioned MR denied; and that the petition herein is
therein had committed “violation of Central Bank Laws, Tariff dismissed and the writs prayed for denied, as regards the
and Customs Laws, Internal Revenue (Code) and the RPC. In documents, papers and other effects seized in the twenty-nine
other words, no specific offense had been alleged in said (29) places, offices and other premises enumerated in the same
applications. The averments were abstract. Resolution, without pronouncement as to costs.
BURGOS, SR. v. CHIEF OF STAFF, AFP (1984) 3. The warrant was directed to Jose Burgos, Jr. alone,
articles belonging to co-petitioners were also seized.
Facts: Assailed is the validity of two search warrants issued on
December 7, 1982 by Judge Cruz-Pano, Executive Judge of CFI Ownership of Seized Personal Property, Not Necessary
Rizal under the premises known RMS Building, Quezon Avenue, Rule 126, Section 2 provides that a search warrant can be for:
Quezon City, business addresses of the “Metropolitan Mail” and a. Property of the subject offense;
“We Forum” newspapers, respectively, were searched, and b. Property stolen or embezzled and other proceeds or
office and printing machines, equipment, paraphernalia, motor fruits of the offense, and
vehicles and other articles used in the printing, publication and c. Property used or intended to be used as the means
distribution of the said newspapers, as well as numerous of committing offense.
papers, documents, books and other written literature under
the possession of petitioner Jose Burgos, Sr., publisher-editor The above rule does not require that the property seized
of “We Forum” were seized. should be owned by the person against whom the search
warrant is directed. It may or may not be owned by him. In
Petitioner prayed for the issuance of Writ of Preliminary fact, the rules even allow a stolen property. Ownership, is of no
Mandatory and Prohibitor Injunction to be issued for the return consequence and it is sufficient that the person against whom
of the seized articles and for the respondents to be enjoined the warrant is directed was allaged to have the property.
from using such as evidence against a criminal case.
4. Real properties were seized under the warrants.
Procedural Flaw Allowed: Court Suspends its Own Rules
Even if the motion to quash from the respondent judge was not In Davao Sawmill Co. v. Castillo, machinery which is movable
sought, due to the seriousness and urgency the court takes by nature becomes immobilized when placed by the owner
cognizance and the public interest generated when the search of the tenement, property or plant, but not if placed by
was televised and publicized. tenant, usufructuary, or any other person having a temporary
right, unless such person acted as the agent of the owner.
Issue on Laches
While search warrants were issued on December 7, 1982 the In the case: In the case at bar, petitioners do not claim to be
same was filed on June 16, 1983 after a lapse of six months. the owners of the land and/or building on which the
Petitioners argued that they tried at first to exhaust other machineries were placed. This being the case, the machineries
remedies and waited for legal advice and direction. in question, while in fact bolted to the ground remain movable
property susceptible to seizure under a search warrant.
These extrajudicial efforts evidently negate that presumption
that they had abandoned their right to the possession of the 5. There is no sufficient basis for the finding of a
seized property, refuting the charge of laches. probable cause upon which the warrant may validly
issue in accordance with the Constitution.
The Fact Some of Seized Documents Used as Evidence
Does Not Affect the Validity of Search Warrant In the case: The petitioners herein are impressed with merit.
Respondents also submit the theory that since petitioner Jose The broad statement in the application that petitioner has:
Burgos, Jr. had used and marked as evidence some of the seized
documents in Criminal Case No. Q-022872, he is now estopped “is in possession or has in his control printing equipment and
from challenging the validity of the search warrants. We do not other paraphernalia, news publications and other documents
follow the logic of respondents. which were used and are all continuously being used as a
means of committing the offense of subversion punishable
under PD 885, as amended x x x”
These documents lawfully belong to petitioner Jose Burgos, Jr.
and he can do whatever he pleases with them, within legal
It is a mere conclusion of law and does not satisfy the
bounds. The fact that he has used them as evidence does not
requirements of probable cause. Absent such particulars, said
and cannot in any way affect the validity or invalidity of the
allegation cannot serve as basis for the issuance of search
search warrants assailed in this petition.
warrant. And the Joint Affidavit alleging that:
Charges to Nullify the Search Warrants
“that the evidence gathered and collated by our unit clearly
1. Failure of examination of applicant and witness – now
shows that the premises above-mentioned and the articles
moot and academic for they conceded that such was and things above-described were used and are continuously
conducted on August 9, 1983. being used for subversive activities in conspiracy with, and to
2. Search Warrants were used to search two distinct promote the objective of, illegal organizations such as the
places (1) No. 19, Road 3, Project 6, Quezon City and Light-a-Fire Movement, Movement for Free Philippines, and
(2) 784 Units C & D, RMS Building, Quezon Avenue, April 6 Movement”
Quezon City – the defect is a typographical error, the
issuance was for two distinct places and was clearly The quoted averment filed before the respondent judge hardly
intended to be so. meets the test of sufficiency for the personal knowledge
General Warrants, Constitutionally Objectionable Whether or not such act is Offending Religious Feelings as
The search warrants describe the articles sought to be seized: described in Article 133 of the Revised Penal Code.
1. All printing equipment, paraphernalia, paper, ink,
photo equipment, typewriters, cabinets, tables, Discussion: whether or not the act complained of is offensive
communications/recording equipment, tape to the religious feelings of the Catholics, is a question of fact
recorders, dictaphone and the like used and/or which must be judged only according to the feelings of the
connected in the printing of the ‘WE FORUM’ Catholics and not those of other faithful ones, for it is possible
newspaper and any and all documents that certain acts may offend the feelings of those who profess
communications, letters and facsimile of prints related a certain religion, while not otherwise offensive to the feelings
to the ‘WE FORUM’ newspaper. of those professing another faith.
2. Subversive documents, pamphlets, leaflets, books,
and other publications to promote the objectives and We, therefore, take the view that the facts alleged in the
purposes of the subversive organizations known as complaint constitute the offense defined and penalized in
Movement for Free Philippines, Light-a-Fire article 133 of the Revised Penal Code, and should the fiscal file
Movement and April 6 Movement. an information alleging the said facts and a trial be thereafter
held at which the said facts should be conclusively established,
However, despite American jurisprudence. It is not the policy the court may find the accused guilty of the offense complained
of our government to suppress any newspaper or of, or that of coercion, or that of trespass under Article 281 of
publication that speaks with “the voice of non-conformity” the Revised Penal Code, as may be proper, pursuant to section
but poses no clear and imminent danger to state security. 29 of General Orders, No. 58. The appealed order is reversed,
and the fiscal is ordered to comply with his duty under the law,
In the case: The premises of the newspaper companies were without pronouncement as to the costs. So, ordered.
padlocked and sealed, with the further result of the
discontinuance of the publication of said newspapers.
• Such closure is in the nature of censorship abhorrent
to the freedom of the press guaranteed under the
constitution and denial of the freedom of expression.
• President Marcos himself denied the request of the
military authorities to sequester the property seized
from the petitioners.
PEOPLE v. BAES (1939)
Facts: The Parish Priest Jose M. Baes of Lumban, Laguna

charges Villaroca, Lacbay and Bernando del Rosario with an
offense against religion with the facts as follows:
On April 14, 1937 at 9AM, the accused, while holding the funeral
of one called Antonio Macabigtas, in accordance with the rites
of the religious sect “Church of Christ” willfully, unlawfully and
criminally caused the funeral to pass through the churchyard of
the Roman Catholic Church against the opposition of the priest
who was under the force and threats of physical violence by the
accused, was compelled to allow the funeral to pass. An act
committed in grave profanation of the place, in open disregard
of the religious feelings of the Catholics of this municipality, and
in violation of article 133 of the Revised Penal Code.
The fiscal instead of filing for an information put the following

for dismissal citing that the act did not constitute the offense
complained of as Article 133 of the RPC.
• At most be chargeable with having threatened the
parish priest, or with having passed through a private
property without the consent of the owner
• However, the fiscal had omitted the essential fact that
'the accused, over the objection of the parish priest
and through force and intimidation, caused to pass
the funeral of one under the rites of the religious sect
known as the Church of Christ.
CRIMINAL LAW II Although the law provides that rebellion is committed by rising
publicly and taking arms against the Government, an actual
REVISED PENAL CODE
clash of arms is not absolutely necessary.
Articles 134-160 Thus, the mere fact that the accused knowingly identified
himself with the Huk organization that was openly fighting to
TITLE THREE overthrow the government was enough to make him guilty of
CRIMES AGAINST PUBLIC ORDER the crime of rebellion. Those also as couriers or spies for the
rebels are also guilty of rebellion.
CHAPTER ONE
REBELLION, COUP D’ÉTAT, SEDITION Purpose of the Uprising Must be Shown
AND DISLOYALTY The mere facts that a band entered the town and attacking the
authorities therein without the evidence to indicate the motive
Article 134. Rebellion and insurrection – How committed. or purpose of the accused does not constitute rebellion.
– The crime of rebellion or insurrection is committed by
rising publicly and taking arms against the Government It is not necessary that the purpose of rebellion be
for the purpose of removing from the allegiance to said accomplished. The crime of rebellion is complete by the very
Government or its laws, the territory of the Republic of moment a group of rebels rise publicly and take arms against
the Philippines or any part thereof, or any body of land, the Government, for overthrowing the same by force. It is not
naval, or other armed forces, or depriving the Chief necessary, to consummate rebellion, that the rebels succeed in
Executive or the Legislature, wholly or partially, any of overthrowing the Government.
their powers or prerogatives.
Rebellion Distinguished from Treason
ELEMENTS OF REBELLION OR INSURRECTION Treason Rebellion
The levying of war against The levying of war against
7. That there be a (1) public uprising and (2) taking arms
the Government would the Government during
against the Government.
constitute treason when peace time for any of the
8. That the purpose of the uprising or movement is performed to aid the purposes mentioned in
a. To remove from the allegiance to said enemy. It would also Article 134.
Government or its laws; constitute adherence to the
i. The territory of the Philippines or enemy, giving him aid or
any part thereof; or comfort.
ii. Any body of land, naval or other Treason may be committed Rebellion always involves
armed forces by mere adherence to the taking up arms against the
b. To deprive the Chief Executive or Congress, enemy giving him aid or Government.
wholly of partially, of any of their powers or comfort.
prerogatives.
Rebellion from Subversion
Subversion, like treason, is a crime against national security.
Rebellion and Insurrection are Not Synoymous
Rebellion is a crime against public order.
The term rebellion is more frequently used where the object of
the movement is to completely to overthrow and supersede the
Rebellion or Insurrection, When Considered as Terrorism
existing government, while the term insurrection is more Under RA 9372, a person who commits an act punishable as
commonly employed about a movement which seeks merely to rebellion or insurrection, thereby sowing and creating a
effect some change of minor importance, or to prevent the condition of widespread and extraordinary fear and panic
exercise of governmental authority with respect to matters. among the populace, in order to coerce the government to give
in to an unlawful demand shall be guilty of terrorism.
Nature of the Crime of Rebellion • Terrorism is more severely punished than heinous
The crime of rebellion or inciting it is by nature a crime of crimes under RA 7659. Where it is given a penalty of
masses or a multitude. It is a vast movement of men and a death but now commuted to reclusion perpetua.
complex net of intrigues and plots. The word rebellion evokes,
not merely a challenge to the constituted authorities, but also Conspiracy to Commit Terrorism
civil war on a bigger or lesser scale. The RPC declared that there Persons who conspire to commit the crime of terrorism shall
should be a public uprising and the taking up of arms. suffer the penalty of 40 years. The conspirators to commit
terrorism should not actually commit terrorism. It is sufficient
Actual Clash of Arms with the Forces of the Government that two or more persons agree and decide to commit the crime
Not Necessary to Convict the Accused Who is in Conspiracy of terrorism.
with Others Actually Taking Arms with the Government.
If they actually commit the crime, they will be held liable for
terrorism and the conspiracy they had before shall be Any person in the government service who participates,
considered now as a manner of incurring criminal liability. or executes directions or commands of others in
• Accomplice – 17y4m1d – 20y of imprisonment. undertaking a coup d’etat shall suffer penalty of
• Accessory – 10y1d – 12y of imprisonment. reclusion temporal in its maximum period.
Prosecution under RA 9372 Shall Be a BAR to Another Any person not in the government service who
Prosecution under RPC or Special Law participates, or in any manner supports, finances, abets
Section 49 of RA 9372 provides that when a person prosecuted or aids in undertaking a coup d’etat shall suffer the
under this Act, upon valid complaint charge sufficient in form penalty of prision mayor in its maximum period.
and substance to sustain a conviction and after the accused had
pleased to the charge, the acquittal of the accused or the When the rebellion, insurrection or coup d’etat shall be
dismissal of the case shall be a bar to another prosecution for under the command of unknown leaders, any person
any other offense or felony which is necessarily included in the who in fact directed the others, spoke for them, signed
offense charged under this Act. receipts and other documents issued in their name, or
performed similar acts, on behalf of the rebels, shall be
Article 134-A. Coup d’état. – How committed. – The crime deemed a leader of such rebellion, insurrection or coup
of coup d’etat is a swift attack, accompanied by violence, d’etat.
intimidation, threat, strategy, or stealth, directed against
duly constituted authorities of the Republic of the WHO ARE LIABLE FOR REBELLION,
Philippines, or any military camp or installation, INSURRECTION, OR COUP D’ETAT?
communications networks, public utilities or other The following are liable for the aforementioned crimes:
facilities needed for the exercise and continued A. The Leaders
possession of power, singly or simultaneously carried a. Any person who (a) promotes, (b) maintains,
out anywhere in the Philippines by any person or or (c) heads a rebellion or insurrection; or
persons, belonging to the military or police or holding b. Any person who (a) leads, (b) directs, or (c)
any public office or employment, with or without civilian commands others to undertake coup d’etat.
support or participation, for the purpose of seizing or
diminishing state power. B. The Participants
a. Any person who (a) participates, or (b)
ELEMENTS OF COUP D’ETAT executed the commands of others in
1. That the offender is a person or persons belonging to rebellion, or insurrection;
the military or police or holding any public office or b. Any person in the government service who
employment; (a) participates, or (b) executed directions or
2. That it is committed by means of a swift attack commands of others in undertaking a coup
accompanied by violence, intimidation, threat, d’etat.
strategy or stealth; c. Any person not in the government service
3. That the attack is directed against duly constituted who (a) participates, (b) support, (c) finances,
authorities of the Republic of the Philippines, or any (d) abets, or (e) aids in undertaking a coup
military camp or installation, communication d’etat.
networks, public utilities or other facilities needed for
the exercise and continued possession of power; NOTE: Public officer must take active part to be liable, mere
4. That the purpose of the attack is to seize or diminish silence or omission not punishable in rebellion.
state power.
Presumption in case Leader is Unknown.
NOTE: The crime of coup d’etat may be committed with or When the rebellion, insurrection or coup d'etat shall be under
without civilian participation. the command of unknown leaders, any person who in fact
directed the others, spoke for them, signed receipts and other
Article 135. Penalty for rebellion, insurrection or coup documents issued in their name, or performed similar acts, on
d’etat. – Any person who promotes, maintains, or heads behalf of the rebels, shall be deemed a leader of such rebellion,
a rebellion or insurrection shall suffer the penalty of insurrection or coup d'etat (Article 135 (6), RPC).
reclusion perpetua. • It is not a defense in rebellion that the accused never
took the oath of allegiance or did not recognize the
Any person merely participating or executing the Government of the Philippines.
commands of others in rebellion or insurrection shall
suffer the penalty of reclusion temporal. Hernandez Doctrine
Can there be a complex crime of rebellion with murder and
Any person who leads or in any manner directs or other common crimes? The court rules in the negative. As
commands others to undertake a coup d’etat shall suffer discussed in People v. Hernandez this rule is explained.
the penalty of reclusion perpetua.
One of the mans by which rebellion may be committed is by There is conspiracy to commit rebellion when two or more
“engaging in war against the forces of the government” and persons come to an agreement to rise publicly and take arms
committing “serious violence” in the prosecution of said “war.” against the Government for any of the purposes of rebellion
These expression imply everything that war connotes, resorts to and decide to commit it. There is proposal to commit rebellion
arms, injuries and loss of life. when the person who has decided to rise publicly and take arms
Inasmuch as the act specified in Article 135 constitute one single against the Government for any of the purposes of rebellion
crime, it follows necessarily that said acts offer no occasion for proposes its execution to some other person or persons.
the application of Article 48 on complex crimes.
Organizing a Group of Soldiers, Soliciting Membership, and
As furthered in People v. Geronimo, when any or all of the acts Soliciting Funds from the People for the Organization,
described in Article 135, when committed as means to or in show Conspiracy to Overthrow the Government.
furtherance of the subversive ends in Article 134, become When the object of the offenders in organizing Filipino soldiers,
absorbed in the crime of rebellion and cannot be regarded or soliciting various persons to become members of the said
penalized as distinct crimes in themselves. organization which held several meetings, and soliciting funds
• They are part and parcel of the rebellion itself, and can from the people, is to overthrow the Government, there is
not be considered as giving rise to separate crimes conspiracy to commit rebellion (US v. Vergara).
that, under Article 48 would constitute a complex
crime with that of rebellion. Article 137. Disloyalty of public officers or employees. —
• Acts committed in furtherance of rebellion are The penalty of prision correccional in its minimum
absorbed in rebellion. period shall be imposed upon public officers or
employees who have failed to resist a rebellion by all the
Thus, the act of the rebels in ambushing and firing upon an means in their power, or shall continue to discharge the
army patrol constitutes engaging in combat with loyal troops; duties of their offices under the control of the rebels or
taking funds and equipment are instances of committing shall accept appointment to office under them.
serious violence in furtherance of the purpose of rebellion.
• Membership in a rebel organization does not Offender Must be A Public Officer or Employee
automatically qualify as acts absorbed in rebellion. The offender must be a public officer or employee. Hence, if a
• Rebellion and not murder is the crime when killings private individual accepts an appointment to office under the
are politically motivated. rebels, he is not liable under this article.
Political Crimes from Common Crimes, Distinguished Act Punishable

Political crimes are those directly aimed against the political 1. By failing to resist a rebellion by all the means in their
order, as well as such common crimes as may be committed to power; or
achieve a political purpose. The decisive factor is the intent or 2. By continuing to discharge the duties of their offices
motive. If a crime usually regarded as common, like homicide, under the control of the rebels; or
is perpetrated for the purpose of removing from the allegiance 3. By accepting appointment to office under them.
"to the Government the territory of the Philippine Islands or any
part thereof," then said offense becomes stripped of its NOTE: The crime of disloyalty of public officers presupposes the
"common" complexion, inasmuch as, being part and parcel of existence of rebellion by other persons. In Us v. Ravidas, the
the crime of rebellion, the former acquired the political accused could not be held liable even for disloyalty, because
character of the latter. there was no actual rebellion going on in the municipality.
There must be rebellion to be resisted or, at least, the place is
Article 136. Conspiracy and proposal to commit coup under the control of the rebels.
d'etat, rebellion or insurrection. — The conspiracy and
proposal to commit coup d'etat shall be punished by Offender in Art. 137 must not be in Conspiracy with Rebels
prision mayor in its minimum period and a fine which The public officer or employee who performs any of the acts of
shall not exceed One million pesos (P1,000,000). disloyalty should not be in conspiracy with the rebels;
otherwise, he will be guilty of rebellion, not merely disloyalty,
The conspiracy and proposal to commit rebellion or because in conspiracy, the act of one is the act of all.
insurrection shall be punished, respectively, by prision
correccional in its maximum period6 and a fine which Article 138. Inciting to rebellion or insurrection. — The
shall not exceed One million pesos (P1,000,000), and by penalty of prision mayor in its minimum period shall be
prision correccional in its medium period, and a fine not imposed upon any person who, without taking arms or
exceeding Four hundred thousand pesos (P400,000). being in open hostility against the Government, shall
incite others to the execution of any of the acts specified
Crimes Punishable Under this Article in Article 134 of this Code, by means of speeches,
1. Conspiracy to commit rebellion proclamations, writings, emblems, banners or other
2. Proposal to commit rebellion representations tending to the same end.
Inciting – the act of being able to urge or persuade (someone) W/N the crime of Rebellion can be complexed with murder,
to act in a violent or unlawful way. arsons and robberies.
ELEMENTS OF INCITING TO REBELLION OR INSURRECTION Rebellion

1. That the offender does not take arms or is not in open Under Article 135 – “any person merely participating or
hostility against the Government. executing the commands of others in a rebellion shall suffer the
2. That he incites others to the execution of any of the penalty of Prision Mayor.” The penalty is increased to PM plus
acts of rebellion; PHP20K for “any person who promotes, maintains, or heads a
3. That the inciting is done by means of speeches, rebellion or insurrection or who, while holding any public office
proclamations, writings, emblems, or other or employment, takes part therein:”
representations tending to the same end. 1. Engaging in war against the forces of the government;
2. Destroying property;
Proposal to Commit Inciting to Rebellion 3. Committing serious violence;
The offender induces another to commit rebellion. 4. Exacting contributions or
The person who proposes It is not required that the 5. Diverting public funds from the lawful purpose for
has decided to commit offender has decided to which they have been appropriated.
rebellion. commit rebellion.
The person who proposes The act of inciting is done Inherent Element
execution of the crime uses publicly. Whether performed collectively or singly, these (5) classes of
secret means. acts constitute only one offense and as such subject only to one
penalty or prision mayor and a fine not exceeding PHP20K. The
NOTE: Rebellion should not be committed. If they commit the reason is that any of these offenses is inherent in the crime of
rebellion because of the proposal or the inciting, the proponent rebellion. Had he not committed any of these, then he will not
or the one inciting becomes a principal by inducement in the be guilty of the crime of rebellion. Even the aggravating
crime of rebellion, provided that the requisites of paragraph circumstances such as abuse of public position given that it is
No. 2 of Art. 17 of the Revised Penal Code are present. inherent in the crime of malversation will not work to aggravate
said offence since this is an essential element to the crime
perpetrated. If an attending circumstance which is inherent to
the crime perpetrated cannot be appreciated, then by analogy
CASES UNDER REBELLION, INSURRECTION
an independent crime which is inherent to that of rebellion
AND COUP D’ETAT
cannot be complexed.
PEOPLE v. HERNANDEZ
Jurisprudence on Treason
The crime of treason may be committed by executing either a
Facts: On 15 March 1945 and for some time before the date
single or similar intentional overt act, different or similar but
and continuously thereafter in the City of Manila, the accused
distinct, and for that reason, it may be considered as one single
and their co-conspirators who were then officers and/or
continuous act. It is true that treason and rebellion are distinct
members or associated with the Congress of Labor
and different from each other.
Organizations (CLO) which is an active organ of the Partido
Komunista ng Pilipinas (PKP) fully cooperates in and
This does not detract, however, from the rule that the
synchronizes its activities with the rebellious activities of the
ingredients of a crime form part and parcel thereof, and, hence
Hukbong Mapalayang Bayan (HMB) aka the HUKS to assure
are absorbed by the same and cannot be punished either
the success of the rebellion against the Republic of the
separately therefrom or by the application of Article 48 of the
Philippines.
RPC. The more reason to apply this rule in rebellion than that
of treason because the law punishing rebellion specifically
The accused willfully and unlawfully help, support promote the
mentions acts of engaging in war and committing serious
Huks to rise publicly and take arms against the Republic of the
violence among its essential elements, thus indicating that
Philippines or otherwise participate in such armed public
everything done in the prosecution of said war, as a means
uprising, for the purpose of removing the territory of the
necessary therefor, is embraced therein – unlike the provision
Philippines from the allegiance to the government and laws
on treason which is less explicit.
thereof as in fact the Huks have risen publicly and taken arms
to attain the said purpose by making armed raids, ambush,
Rebellion is a Political Crime
attacks against police, and as a necessary means to commit the
Political crimes are those directly aimed against the political
crime of rebellion, in connection therewith and in furtherance
order, as well as such common crimes as may be committed to
thereof have committed acts of murder, pillage looting, plunder,
achieve a political purpose. The decisive factor is the intent or
etc. to create and spread chaos, terror and fear so as to facilitate
the motive. If a crime is usually regarded as common, like
the accomplishment of the aforesaid purpose.
homicide, is perpetrated for the purpose of removing from the
allegiance “to the Government the territory of the Philippines
or any part thereof,” then said offense becomes stripped of its
“common” complexion. In as much as, being part and parcel of other common crimes committed as a necessary means for the
the crime of rebellion, the former acquires the political commission of rebellion.
character of the latter. Whereas the information against Sen. Enrile et al. charged
Contravenes Intention of Article 48 murder and frustrated murder committed on the occasion, but
Art. 48 was enacted for the purpose of favoring the accused, not in furtherance, of rebellion.
not sentencing him to a penalty than that which would be
proper if the several acts performed by him were punished Stated otherwise, the Solicitor General would distinguish
separately. The reason for this is because when two or more between the complex crime (“delito complejo”) arising from an
crimes are the result of a single act, the offender is deemed less offense being a necessary means for committing another, which
perverse than when he commits said crimes thru separate is referred to in the second clause of Article 48, Revised Penal
distinct acts. Code, and is the subject of the Hernandez ruling, and the
compound crime (“delito compuesto”) arising from a single act
If murder were not complexed with rebellion and instead constituting two or more grave or less grave offenses referred
punished separately, it would be impossible to impose the to in the first clause of the same paragraph, with which
penalty. Rebellion is punished with a fine not exceeding Hernandez was not concerned and to which, therefore, it
PHP20K and PM but not exceeding 12 Years of PM; Murder is should not apply.
punished with RT in its maximum to dead. In other words,
absent an aggravating circumstance, the extreme penalty The Court now has three options:
cannot be imposed. If Art. 48 is applied, said penalty for murder I. abandon Hernandez and adopt the minority view
will be meted out to him even without the aggravating expressed in the main dissent of Justice Montemayor in said
circumstance. This would be unfavorable to the accused. case that rebellion cannot absorb more serious crimes, and that
under Article 48 of the Revised Penal Code rebellion may
HELD: The murders, arsons and robberies described herein are properly be complexed with common offenses, so-called; this
mere ingredients of the crime of rebellion allegedly committed option was suggested by the Solicitor General in oral argument
by defendants. although it is not offered in Montemayor’s written pleadings;
II. hold Hernandez applicable only to offenses
ENRILE v. SALAZAR committed in furtherance, or as a necessary means for the
commission, of rebellion, but not to acts committed in the
Rebellion absorbs all other offenses committed in its course, course of a rebellion which also constitute “common” crimes of
whether or not necessary to its commission or in furtherance grave or less grave character;
thereof. III. maintain Hernandez as applying to make rebellion
absorb all other offenses committed in its course, whether or
Facts: 34 years after the case of People v. Hernandez it is once not necessary to its commission or in furtherance thereof.
again examined in this case to reexamine, if not the validity of [Spoiler: this was the option chosen by the Court]
its doctrine, the limits of its applicability.
Issue: Whether or not the Court should, abandon, maintain, or
Senate Minority Floor Leader Juan Ponce Enrile (along with determine the boundaries of the doctrines laid down in the case
Rebecco and Erlinda Panlilio) was arrested for the crime of of People v Hernandez; Whether or not Enrile should be
rebellion with murder and multiple frustrated murder charged with crime of rebellion with murder and multiple
allegedly committed during the period of the failed coup frustrated murder or rebellion alone.
attempt from November 29 to December 10, 1990. Enrile filed
for a writ of Habeas Corpus alleging that he was Held: The Court rejected the first two options.
1. held to answer for criminal offense which does not On the first option, eleven (11) Members of the Court voted
exist in the statute books; against abandoning Hernandez. Two (2) Members felt that the
2. charged with a criminal offense in an information for doctrine should be reexamined. In the view of the majority, the
which no complaint was initially filed or preliminary ruling remains good law, its substantive and logical bases have
investigation was conducted, hence was denied due process; withstood all subsequent challenges and no new ones are
3. denied his right to bail; and presented here persuasive enough to warrant a complete
4. Arrested and detained on the strength of a warrant reversal.
issued without the judge who issued it first having personally
determined the existence of probable cause. This view is reinforced by the fact that not too long ago, the
incumbent President, saw fit to repeal, amongothers,
The Court issued the writ thereafter the Solicitor General filed a Presidential Decree No. 942 which precisely sought to nullify or
consolidated return for the respondents. neutralize Hernandez. In thus acting, the President in effect by
legislative fiat reinstated Hernandez as binding doctrine with
Said return urged that the petitioners’ case does not fall within the effect of law. The Court can do no less than accord it the
the Hernandez ruling because—and this is putting it very same recognition, absent any sufficiently powerful reason
simply—the information in Hernandez charged murders and against so doing.
On the second option, the Court unanimously voted to reject ENRILE v. AMIN
the theory that Hernandez is, or should be, limited in its
application to offenses committed as a necessary means for the Facts: Together with the filing in an information charging
commission of rebellion and that the ruling should not be Senator Juan Ponce Enrile as having committed rebellion
interpreted as prohibiting the complexing of rebellion with complexed with murder with RTC Quezon, government
other common crimes committed on the occasion, but not in prosecutors filed another information charging him for
furtherance, thereof While four Members of the Court felt that violation of PD 1829 with the RTC of Makati. The second
the proponents’ arguments were not entirely devoid of merit. information reads:
There is one other reason—and a fundamental one at that — On December 1, 1989 at Dasmarinas Village, Makati, Metro Manila the
why Article 48 of our Penal Code cannot be applied in the case above named accused, having reasonable ground to believe or suspect
at bar. that Ex-Col. Gregorio “Gringo” Honasan has committed a crime, did
then and there feloniously, willfully and knowingly obstruct, impede,
frustrate and delay the apprehension of Honasan by harboring and
If murder were not complexed with rebellion, and the two
concealing him in his house.
crimes were punished separately (assuming that this could be
done), the following penalties would be imposable upon the On March 2, 1991, petitioner filed an Omnibus Motion
movant, namely: (a) to hold in abeyance the issuance of warrant of arrest
pending personal determination by the court of
(1) for the crime of rebellion, a fine not exceeding P20,000 probable
and prision mayor, in the corresponding period, (b) dismiss the case and expunge the information on
depending upon the modifying circumstances record
present, but never exceeding 12 years of prision
mayor; and On March 16, 1990, Judge denied the Omnibus Motion on the
basis of a finding that there was a probable cause to hold
(2) for the crime of murder, reclusion temporal in its accused Enrile liable for violation of PD 1829. On March 21,
maximum period to death, depending upon the 1990, the petitioner filed a MR and to Quash Dismiss the
modifying circumstances present. In other words, in Information on the grounds that:
the absence of aggravating circumstances, the a. The facts charged do not constitute an offense;
extreme penalty could not be imposed upon him. b. The finding of probable cause was devoid of factual
and legal basis, and
However, under Article 48 said penalty would have to be meted c. The pending charge of rebellion complexed with
out to him, even in the absence of a single aggravating murder and frustrated murder against Senator Enrile
circumstance. as alleged conspirator of Honasan, based on their
meeting on December 1, 1989, precludes the
Thus, said provision, if construed in conformity with the theory prosecution for the harboring or concealing the
of the prosecution, would be unfavorable to the movant, Colonel on the same occasion under PD 1829.
defeating the object of Article 48 which provides a penalty
favorable to the accused based on the principle of Pro Rea that Issue: Whether or not the petitioner could be separately
the accused having committed a complex crime is less perverse. charged for violation of PD 1829 notwithstanding the rebellion
case earlier filed against him.
Upon the other hand, said Article 48 was enacted for the
purpose of favoring the culprit, not of sentencing him to a Discussion: No. Respondent Judge Amin sustained the charge
penalty more severe. of violation of PD 1829 notwithstanding the rebellion case filed
against the petitioner on the theory that the former involves a
The rejection of both options shapes and determines the special law while the latter is based on RPC.
primary ruling of the Court, which is that Hernandez remains
binding doctrine operating to prohibit the complexing of Revisiting the Ruling in Salazar and Hernandez
rebellion with any other offense committed on the occasion Hernandez remains binding doctrine operating to prohibit the
thereof, either as a means necessary to its commission or as complexing of rebellion with any other offense committed on
an unintended effect of an activity that constitutes the occasion thereof, either as a means necessary to its
rebellion. commission or as an unintended effect of an activity that
constitutes rebellion.
WHEREFORE, the Court reiterates that based on the doctrine
enunciated in People vs. Hernandez, the questioned In the case: The doctrine is applicable in the case at bar. If a
information filed against petitioners Juan Ponce Enrile and the person can not be charged with the complex crime of rebellion
spouses Rebecco and Erlinda Panlilio must be read as charging for the greater penalty to be applied, neither can he be
simple rebellion only, hence said petitioners are entitled to bail, charged separately for two different offenses where one is
before final conviction, as a matter of right. component element or in furtherance of rebeliion.
The petitioner is presently charged with having violated PD All Crimes Whether Punishable Under Special Law or
1829 particularly Section 1(c) which reads: General Law Which Are Mere Component Or
Ingredients Committed in Furtherance
“SECTION 1. The penalty of prison correccional in its maximum period, Become Absorbed in the Crime of Rebellion
or a fine ranging from 1,000 to 6,000 pesos, or both, shall be imposed The prosecution tries to distinguish by contending that
upon any person who knowingly or willfully obstructs, impedes, harboring or concealing a fugitive is punishable under a special
frustrates or delays the apprehension of suspects and the
law while the rebellion case is based on the Revised Penal Code;
investigation and prosecution of criminal cases by committing any
of the following acts:
hence, prosecution under one law will not bar a prosecution
(c) harboring or concealing, or facilitating the escape of, any under the other. This argument is specious in rebellion cases.
person he knows, or has reasonable ground to believe or
suspect, has committed any offense under existing penal In the light of the Hernandez doctrine the prosecution’s theory
laws in order to prevent his arrest, prosecution and must fail. The rationale remains the same.
conviction
All crimes, whether punishable under a special law or general
The prosecution in this Makati case alleges that the petitioner law, which are mere components or ingredients, or committed
entertained and accommodated Honasan by giving him food in furtherance thereof, become absorbed in the crime of
and comfort on December 1, 1989 in his house. Knowing that rebellion and cannot be isolated and charged as separate
Honasan is a fugitive from justice, Sen. Enrile allegedly did not crimes in themselves.
do anything to have him apprehended or arrested. And
because of such failure the petitioner prevented Col. Honasan’s Absorption doctrine may apply to common crimes in the RPC.
arrest and conviction in violation of Section 1 (c) of PD No. 1829. The attendant circumstances in the instant case, however,
constrain us to rule that the theory of absorption in rebellion
The rebellion charges in Quezon City were based on the cases must not confine itself to common crimes but also to
affidavits executed by three employees of Silahis International offenses under special laws which are perpetrated in
Hotel who stated that fugitive Col. Gregorio “Gringo” Honasan furtherance of the political offense.
and some 100 rebel soldiers attended the mass and birthday
party held at the residence of the petitioner in the evening of In the case: Clearly, the petitioner’s alleged act of harboring or
December 1, 1989. concealing which was based on his acts of conspiring with
• In such a situation, the talking in his house in the Honasan was committed in connection with or in furtherance
presence of 100 uniformed soldiers who were fully of rebellion and must now be deemed as absorbed by,
armed that they were co-conspirators in the failed merged in, and identified with the crime of rebellion punished
December coup. in Articles 134 and 135 of the RPC.
The factual allegations supporting the rebellion charge The court then calls the prosecution to pick between charging
constitute or include the very incident which gave rise to between PD 1829 or rebellion. It cannot complex the rebellion
the charge of the violation under PD 1829. with murder and multiple frustrated murder.
• Necessarily, being in conspiracy with Honasan,
petitioner’s alleged act of harboring or concealing was Neither can it prosecute him for rebellion in Quezon City and
for no other purpose but in furtherance of the crime violation of P.D 1829 in Makati. It should be noted that there is
of rebellion thus constituting a component thereof. in fact a separate prosecution for rebellion already filed with the
It was motivated by the single intent or resolution to Regional Trial Court of Quezon City. In such a case, the
commit the crime of rebellion. independent prosecution under PD 1829 cannot prosper.
• The decisive factor is the intent or the motive.
Intent or Motive of the Act, Essential
Acts Committed in Furtherance, Inherent in Rebellion The intent or motive is a decisive factor. If Senator Ponce Enrile
The crime of rebellion consists of many acts. It is described as a is not charged with rebellion and he harbored or concealed
vast movement of men and a complex net of intrigues and plot. Colonel Honasan simply because the latter is a friend and
Jurisprudence tell us that acts committed in furtherance of the former associate, the motive for the act is completely different.
rebellion through crimes are in themselves deemed absorbed
in one single crime of rebellion. But if the act is committed with political or social motives, that
is in furtherance of rebellion, then it should be deemed to form
In the case: n this case, the act of harboring or concealing Col. part of the crime of rebellion instead of being punished
Honasan is clearly a mere component or ingredient of rebellion separately.
or an act done in furtherance of the rebellion. It cannot
therefore be made the basis of a separate charge. Held: In view of the foregoing, the petitioner cannot be tried
• so may not a defendant be made liable for murder as separately under PD 1829 in addition to his being prosecuted
a separate crime or in conjunction with another in the rebellion case.
offense where, as in this case, it is averred as a
constitutive ingredient of the crime.
PEOPLE v. LOVEDIORO (1995) Burden of Proof of Political Motive - Accused

Political motive must be alleged in the information. Given the
Facts: Off-duty policeman SPO3 Jesus Lucilo was walking along rebellion provides for a lesser penalty, the burden of proof lies
Burgos St., away from the Daraga, Abay Public Market, when a on the accused. It must be established by clear and satisfactory
man suddenly walked beside him, pulled a .45 caliber gun from evidence.
his waist, aimed the gun at the policeman’s right ear and fired.
The man who shot Lucilo had three other companions with him, In the case: The appellant, admitted in his extrajudicial
one of who shot the policeman four times as he lay on the confession to having participated in the killing of Lucilo. It bears
ground. After taking the latter’s gun, the man and his emphasis that nowhere in his extrajudicial confession did
companions boarded a tricycle and left. appellant mention that he was a member of the NPA. It also
reveals nothing which would suggest that the killing in which
The incident was witnessed from a distance of about nine he was a participant was motivated by a political purpose.
meters by Nestor Armenta, a 25 year old welder from Sorsogon,
who claimed that he know both the victim and the man who • The information filed against appellant, based on
fired the fatal shot. Armenta identified the man who fired at the sworn statements, did not contain any mention or
deceased as Elias Castro, his nephew and he knew that he was allusion as to the involvement of the NPA on the death
a resident of Bagumbayan. of SPO3 Lucio, even eyewitness Armenta not mention.
Lucilo died on the same day of massive blood loss from As the records would show, allegations relating to the
multiple gunshot wounds on the face, the chest, and other parts appellant’s membership in the NPA surfaced almost merely as
of the body and hypovolemic shock. As a result of the killing, an afterthought, which the defense merely picked up and
the prosecutor filed for an information charging Elias Castro of followed through upon Armenta’s cross-examination,
the crime of Murder under Article 248. RTC of Albay found interestingly Armenta admitted that he was forced to pinpoint
Castro guilty beyond reasonable doubt of the crime of Murder appellant as an NPA member.
in a decision on September 24, 1993.
Petitioner’s Allegation of Political Motive
Issue: Whether or not Castro should be made liable for the The viability depends on his sole and unsupported testimony.
crime of rebellion and not murder. He testified that, upon the prodding of alias Alwin and alias
Samuel, he joined the NPA because of the organization’s goals.
Discussion: No, the crime committed was murder and not
rebellion. He claimed that his two companions shot Lucilo because he
“had offended our organization,” without, however, specifying
Appellant argues that the testimonies of Armenta show that he what the “offense” was. Appellant claimed that he had been a
should be charged with rebellion and not murder. For in his member of the NPA for five months before the shooting
brief, he asserts that Armenta identified him as a member of the incident.
NPA. Additionally, he contends that because the killing of Lucilo
was a means to or in furtherance of subversive ends and that It was observed that this allegation are so general and non-
such killing should have been a crime of rebellion. specific that they offer no explanation as to what contribution
• Also alleges that he did not fire the fatal shot but acted the killing would have made to achievement of NPA’s
as a look-out and should be charged as participant. subversive aims. SPO3 Lucilo was never alleged to be an
informer for no acts of his were shown to have offender NPA.
Nature of the Crime of Rebellion
The essence of the crime of rebellion is an armed public Held: In the absence of clear and satisfactory evidence pointing
uprising against the government. By its very nature, rebellion is to a political motive for the killing of SPO3 Jesus Lucilo the court
essentially a crime of mases or multitudes involving crowd upholds the finding of the crime of murder.
action which cannot be confined a priori within predetermined
bounds. And that, other acts committed in its pursuance are The witness is of his blood relative, and his testimonies were
absorbed in the crime itself because they are of political enough to convict the accused. This was further bolstered that
character as underscored in People v. Hernandez. the witness and the appellant in open admission to the court
did not have grudges to each other. In the absence of any
In deciding if the crime committed is rebellion not murder, it mitigating and aggravating circumstances, the trial court was
becomes imperative for the courts to ascertain whether or not correct in imposing the penalty of reclusion perpetua, together
the act was done in furtherance of a political end. The political with all the accessories provided by law.
motive of the act should be conclusively demonstrated.
• Motive is a decisive factor, that if no political motive is The killing was adequately proved to have been qualified by
established and proved, the accused should be treachery for the attack was delivered without warning of any
convicted of the common crime and not of rebellion, kind. The Court affirms the trial court’s decision sentencing the
a crime has two elements, actus reus (overt act_ and accused guilty of Murder.
the mens rea (intent).
OCAMPO v. ABANDO (2014) Prosecutor’s Action and Arrest

On the basis on the 12 letters and their attachments, Vivero
Facts: On August 26, 2006, a mass grave was discovered by 43rd issued a subpoena requiring petitioners to submit their
Infantry Brigade of the Philippine Army as Sitio Sapang Daco, counter-affidavit and those of their witnesses.
Barangay Kaulisihan, Inopacan, Leyte. The mass grave • In a resolution on 16 February 2007, Prosecutor Vivero
contained skeletal remains of individuals believed to be victims recommended the filing of Information for 15 counts
of “Operation Venereal Disease” launched by members of the of multiple murder against 54 names members of
NPA to purge their ranks of suspected military informers. the CPP/NPA/NDFP for the death of 15 named.
• Filed to RTC of Leyte presided by Judge Abando on 28
PC/Insp. George L. Almaden of the PNPRO-8 and Army Captain February 2007. On March 6, 2007 he found probable
Allan Tie of 8th ID of AFP sent 12 undated letters to the Provincial cause and ordered the issuance of warrant of arrest
Prosecutor of Leyte through Asst. Provincial Prosecutor Vivero. against them without bail.
The request was for legal action of the 12 complaint-affidavits
attached accusing 71 named members of the CPP/NPA/NDFP Petitioner argued that a case for rebellion against him and 44
of murder, including petitioners herein. others was then pending before RTC Makati. Putting forward
the political offense doctrine, petitioner Ocampo argues that
The letter described the discovery at the mass grave sit of 67 common crimes such as murder in this case are absorbed by
severely deteriorated skeletal remains believed to be victims of the crime of rebellion for it was committed as necessary means.
Operation VD. The PNP SOCO was dispatched to make
investigation, collect and analyze remains there was also a Issue: Whether or not the political offense doctrine can be used
forensic crime analysis for DNA sampling. as a ground to dismiss the charge against petitioners prior to
determination by trial court that the murders were committed
September 18, 2006 Initial Specialist Report was inconclusive in furtherance of rebellion.
with regard of the identities and the length of time that they
had been buried. Recommended further tests. Discussion: No. There are three issues to be discussed in the
case, (1) due process on preliminary investigation; (2) the
October 2, 2006 Specialist Report came up with the names of ten issuance of the warrants of arrest and more importantly, (3) the
possible victims after comparison and examination based on defense of the use of the political offense doctrine.
testimonies of relatives and witnesses.
On Preliminary Investigation
The 12 complaint-affidavits were from relatives of the alleged A preliminary investigation is conducted to protect the
victims of Operation VD. All of them swore that their relatives innocent form the embarrassment, expense and anxiety of
had been abducted or last seen with members of the CPP-NPA public trial. It is a substantive right and a component of due
and were never seen again. They also expressed belief that their process in the administration of criminal justice.
relatives’ remains were among those discovered.
In the case: Petitioners Echanis and Baylosis alleged that they
Affidavits of Former Members did not receive a copy of the complaint and the attached
There were some who narrated that they were former members documents or evidence. Ladlad claims that he was not served a
of CPP/NPA/NDFP. According to them, Operation VD was subpoena due to the false address indicated in the undated
ordered in 1985 by the Central Committee which petitioners letters of Almaden and Tiu. Ocampo claims he was not also
Ocampo, Echanis, Baylosis and Ladlad were then members of given a copy and claims he was denied of the right to file and
such committee. MR or to appeal to the prosecutor.
According to these former members, four sub-groups were Rule 112, Section 3(d) allows Prosecutor Vivero to resolve the
formed to implement Operation VD: complaint based on the evidence before him if a respondent
could not be subpoenaed. As long as efforts to reach a
(1) Intel Group for gathering information on suspected respondent were made, and he was given the opportunity to
spies and civilians who would not support movement. present countervailing evidence, the preliminary investigation
(2) Arresting Group charged with their arrests. remains valid.
(3) Investigation Group tasked for their questioning.
(4) Execution Group the “cleaners” of confirmed spies and Resolution stated that efforts were undertaken to serve
civilians who would not support the movement. subpoenas on the named respondents at their last known
addresses. This is sufficient for due process. It was only because
From 1985 to 1992, at least 100 people had been abducted, a majority of them could no longer be found at their last known
hog-tied, tortured and executed by members pursuant to the addresses that they were not served copies of the complaint
Operation VD as order by the CPP/NPA/NDFP Central and the attached documents or evidence.
Committee of the questioned organization. These led to the • Ladlad entered a formal compliant despite such
filing of the affidavits. question of address, and such was estopped by the
acts of his counsel.
Issuance of the Warrants of Arrests Double jeopardy only applies when (1) a first jeopardy
Petitioner Ocampo alleged that Judge Abando did not comply attached; (2) it has been validly terminated; and (3) a second
with requirement of the Constitution in finding the existence of jeopardy is for the same offense in the first.
probable cause for the issuance of warrants of arrests against • First jeopardy attaches only after the accused been
the petitioners. acquitted or convicted, or the case has been dismissed
or otherwise terminated without his express consent
Probable cause shall be determined by the judged after an by a competent court in a valid indictment for which
examination under oath or affirmation of the complainant and the accused has entered a valid plea on arraignment.
the witnesses, but hearing is not necessary in for the • If it appears at any time before judgment that a
determination thereof. In fact, the judge’s personal mistake has been made in charging the proper
examination of the complainant the witnesses is not mandatory offense, the court shall dismiss the original complaint
for aptness of the warrant of arrest. or information upon the filing of a new one charging
• It is enough that he personally evaluates the report the proper offense provided that the accused shall not
and supporting documents showing existence of the be in double jeopardy.
probable cause for the indictment and on the basis
thereof to issue a warrant of arrest. In the case: On May 12, 2006, an information for the crime of
rebellion as penalized under Article 134 and 135 of RPC was
In the case: Echanis and Baylosis claim that if the judge had filed before RTC of Makati, however petitioners were never
examined the record submitted he could have had dimsised arraigned even before indictment for rebellion, petitioners had
such charge and the Judge Albano did not point out the already filed a petition before this Court to seek nullification of
evidence used as basis for issuance of the arrest warrant. DOJ Orders on denying motion for inhibition for members of
prosecution for lack of impartiality and independence.
The determination of probable cause of the warrants of arrest • When the indictment was filed, petitioner filed
against petitioners is addressed to the sound discretion of the supplemental petitions to enjoin the prosecution, the
judge. The trial judge’s appreciation of the evidence and Court ordered dismissal of the rebellion case.
conclusion of facts based thereon are not interfered with in the It is clear then that a first jeopardy never had a chance to attach.
absence of grave abuse of discretion.
Held: The consolidated petitioners are dismissed and RTC of
Political Offense Doctrine, Not Ground to Dismiss Charge Manila (murder case) is hereby ordered to proceed with
Under the political offense doctrine, common crimes dispatch with the hearing of case.
perpetrated in furtherance of a political offense, are divested of
their character as “common” offenses and assume the political
complexion of the main crime of which they are mere SEDITION
ingredients, and, consequently, cannot be punished separately
from the principal offense, or complexed with the same, to Article 139. Sedition. – How committed. – The crime of
justify the imposition of a graver penalty. sedition is committed by persons who rise publicly and
tumultuously in order to attain by force, intimidation, or
Any ordinary act assumed a different nature by being absorbed by other means outside of legal methods, any of the
in the crime of rebellion. Thus, when a killing is committed in following objects:
furtherance of rebellion, the killing is not homicide or murder.
Rather, the killing assumes the political complexion of rebellion 1. To prevent the promulgation or execution of
as its mere ingredient and must be prosecuted and punished any law or the holding of any popular election.
as rebellion alone. 2. To prevent the National Government, or any
provincial or municipal government, or any
When the political offense doctrine is asserted as a defense in public officer thereof from freely exercising its
the trial court, it becomes crucial for the court to determine or his functions, or prevent the execution of any
whether the act of killing was done in furtherance of a political administrative order;
end, and for the political motive of the act to be conclusively 3. To inflict any act of hate or revenge upon the
demonstrated. person or property of any public officer or
employee;
Burden of proof: The proof showing political motivation is 4. To commit, for any political or social end, any
adduced during trial where the accused is assured an act of hate or revenge against private persons
opportunity to present evidence supporting his defense. or any social class; and
5. To despoil, for any political or social end, any
RULE: If shown that the proper charge against the person, municipality or province, or the
petitioners should have been simple rebellion, the trial National Government of all its property or any
court shall dismiss the murder charges upon the filing of the part thereof.
Information for simple rebellion, as long as petitioners
would not be placed in double jeopardy.
ELEMENTS OF SEDITION 2. No object of sedition, no sedition.

1. That the offenders rise (1) publicly and (2) Persons attacked a truck with policemen inside. It was held that there
tumultuously; was no sedition because the purpose of the attack was not known. The
2. That they employ force, intimidation, or other means accused were held liable for five murders (People v. Mendoza, 1950).
outside of legal methods.
NOTE: Common crimes are not absorbed in sedition.
3. That the offenders employ any of those means to
attain any of the following objects:
Article 140. Penalty for sedition. – The leader of a
a. To prevent the promulgation or execution of
sedition shall suffer the penalty of prision mayor in its
any law or the holding of any popular
minimum period and a fine not exceeding Two million
election.
pesos (P2,000,000).
b. To prevent the National Government, or any
provincial or municipal government, or any
Other persons participating therein shall suffer the
public officer thereof from freely exercising its
penalty of prision correccional in its maximum period
or her functions, or prevent the execution of
and a fine not exceeding One million pesos (P1,000,000).
any administrative order.
c. To inflict any act of hate or revenge upon the
person or property of any public officer or Persons Liable for Sedition
employee. (1) Leader of the sedition
d. To commit, for any political or social end, any (2) Other persons participating in the sedition
act of hate or revenge against private persons
or any social class; and Article 141. Conspiracy to commit sedition. – Persons
e. To despoil, for any political or social end, any conspiring to commit the crime of sedition shall be
person, municipality or province, or the punished by prision correccional in its medium period
National Government of all its property or and a fine not exceeding Four hundred thousand pesos
any part thereof. (P400,000).
Nature of the Crime There Must be An Agreement and A Decision

Sedition, in its general sense is the raising of commotions or Thus, an agreement and a decision to attain an object of
disturbances in the state. The ultimate object of sedition is a sedition without any agreement to rise publicly and
violation of the public peace or at least such a course of tumultuously is not conspiracy to commit sedition. Such an
measures as evidently engenders it. agreement and decision may constitute a conspiracy to commit
direct assault of the first form (Art. 148), which is not a felony.
Sedition Rebellion
There must be a public uprising NOTE: There is no proposal to commit sedition. As compared
to rebellion and sedition, the Revised Penal Code does not
It is sufficient that the public There must be taking up of
define any crime for the proposal to commit sedition.
uprising is tumultuous. arms against the
Government.
Article 142. Inciting to sedition. – The penalty of prision
Purpose of the offenders Purpose is always political.
correccional in its maximum period and a fine not
may be political or social.
exceeding Four hundred thousand pesos (P400,000)
Merely to attain by force, Purpose of uprising is
shall be imposed upon any person who, without taking
intimidation, or by other against the government as
any direct part in the crime of sedition, should incite
means outside of legal defined in Article 134.
others to the accomplishment of any of the acts which
methods one object, either
constitute sedition, by means of speeches,
to inflict an act of hate or
proclamations, writings, emblems, cartoons, banners, or
revenge upon the person or
other representations tending to the same end, or upon
property of a public official.
any person or persons who shall utter seditious words or
speeches, write, publish, or circulate scurrilous libels
Tumultuous – in Article 163, tumultuous is given a definite
against the Government of the Philippines, or any of the
meaning, the disturbance is considered tumultuous if caused
duly constituted authorities thereof, or which tend to
by more than three persons who are armed or provided with
disturb or obstruct any lawful officer in executing the
means of violence.
functions of his office, or which tend to instigate others
to cabal and meet together for unlawful purposes, or
Public Uprising and an Object of Sedition Must Concur
which suggest or incite rebellious conspiracies or riots,
1. No public uprising, no sedition.
or which lead or tend to stir up the people against the
The very threat of their presence in the council chamber they imposed
their will upon the municipal authorities. It was held that there was no lawful authorities or to disturb the peace of the
sedition, because there was no public and tumultuous uprising as held community, the safety and order of the Government, or
in US v. Apurado. who shall knowingly conceal such evil practices.
Different Acts of Inciting Sedition b. Dangerous tendency rule

1. Inciting others to the accomplishment of any of the If the word used tend to create a danger of uprising, then those
acts which constitute sedition by means of speeches, words could probably be subject of a penal clause. Under the
proclamations, writings, emblems, etc. dangerous tendency rule, there is inciting to sedition when the
2. Uttering seditious words or speeches which tend to words uttered or published could easily produce disaffection
disturb the public peace. among the people and a state of feeling in them incompatible
3. Writing or publishing or circulating scurrilous libels with a disposition to remain loyal to the Government and
against the government or any of the duly constituted obedient to the laws.
authorities thereof, which tend to disturb the public
peace.
CASES UNDER SEDITION AND INCITING TO SEDITION
NOTE: The purpose must be to any of the objects of sedition.
PEOPLE v. UMALI (1954)
ELEMENTS OF INCITING TO SEDITION TO ACCOMPLISH
ANY OF ITS OBJECTS Facts: Narciso Umali, Epifanio Pasumbal, and Isidro Capino are
1. That the offender does not take direct part in the crime appealing the conviction of the CFI of Quezon finding them
of sedition. guilty of the complex crime of rebellion with multiple murder,
2. That he incites others to the accomplishment of any of frustrated murder, arson and robbery, and sentencing them to
the acts which constitutes sedition. life imprisonment and indemnification.
3. That the inciting is done by means of speeches,
proclamations, writings, emblems, cartoons, banners, On November 14, 1951 in Tiaong, Quezon, between 8:00PM
or other representations tending to the same end. and 9:00PM by armed men, a raid took place, resulting in the
burning down and complete destruction of the house of Mayor
Uttering Seditious Words or Speeches and Writing, Marcial Punzalan including its content and other houses and
Publishing, Circulating Scurrilous Libels, When Punishable wounding of a patrolman and five civilians. Some of raiders
1. They tend to disturb or obstruct any lawful officer in engaged in looting, robbing and were driven away.
executing functions of his office.
2. They tend to instigate others to cabal and meet Shortly before that raid (one or two years before it), Narciso
together for unlawful purposes. Umali and Marcial Punzalan were old time friends and
3. They suggest or incite rebellious conspiracies or riots. belonged to the same political faction. In the general elections
4. They lead or tend to stir up the people against the of 1947, Umali campaigned for Punzalan who later was elected
lawful authorities or to disturb the peace of the Mayor of Tiaong. In the elections of 1949 it is Punzalan’s turn
community, the safety and order of the Government. to campaign for Umali resulting to his election as Congressman.
Examples of Inciting to Sedition However, these friendly relations did not endure. In the world
• A theatrical play or drama where the words uttered, or of Punzalan, Umali became jealous of Punzalan’s fast growing
speeches delivered are seditious (US v. Tolentino). popularity among the people of Tiaong who looked to him
• Proposal to throw hand grenades in a public place, instead of Umali for political guidance, leadership and favors.
intended to cause commotion and disturbance, as an • In time, they ceased to have any dealings with each
act of hate and revenge against police force, is inciting other and they even filed mutual accusations.
to sedition (People v. Quimpo).
According to Punzalan, in May 1950, Umali induced about 26
Knowingly Concealing Such Evil Practices of special policemen of his to flee to the mountains and join the
Knowingly concealing such evil practices" is ordinarily an act of Hus to discredit his administrator. He was later able to contact
the accessory after the fact, but under this provision, the act is two of his tweny-six policemen and tried to persuade them to
treated and punished as that of the principal. return to the town and to the service, but they told him that
they and their companions would not surrender except with
Rules to Seditious Words and through the intervention of Congressman Umali, and so
a. The clear and present danger rule Punzalan had to seek Umali's intervention which resulted in the
The words must be of such a nature that by uttering them there surrender of the 26 men with their firearms; thereafter Umali
is a danger of public uprising and that such danger should be wanted to have their firearms, claiming that they all belonged
both clear and imminent. It is required that there must be to him from his guerrilla days when he was a colonel, and that
reasonable ground to believe that the danger apprehended is after liberation he had merely loaned them to the municipal
imminent and that the evil to be prevented is serious one. There authorities of Tiaong to help keep peace and order; and that
must be a probability of serious injury to the State. the refusal of Punzalan to grant Umali's request further strained
their relations, and that thereafter Umali would not speak to
Present refers to the time element. The danger must not only him even when they happened to meet at parties.
be probable but very like inevitable. It used to be identified with
imminent and immediate danger.
On September 19, 1951, Chief of Police of Punzalan disarmed ISSUE: Whether or not the raid conducted through the help of
four of Umali’s men for illegal possession of firearms. Umali the Huk will absorb the crimes of multiple murder, frustrated
then intercede for his men, and the provincial commander sent murder, arson and robbery. OR Whether or not there is such a
a telegram stating that the firearms were licensed, dismissing complex crime of rebellion with multiple murder, frustrated
the complaint. murder, arson and robbery?
Elections of November 13, 1951 HELD: The Court is convinced that the principal and main,
Punzalan ran for reelection. To oppose him, and to clip his though not necessarily the most serious, crime committed here
political wings and definitely blast his ambition for continued was not rebellion but rather that of sedition.
power and influence in Tiaong, Umali picked Epifanio Pasumbal,
his trusted leader. The purpose of the raid and the act of the raiders in rising
publicly and taking up arms was not exactly against the
The pre-election campaign was intense and bitter, even Government and for the purpose of doing the things defined in
ruthless. The election was to be a test of political strength and Article 134 of the Revised Penal Code under rebellion. The
would determine who was who in Tiaong, — Umali or Punzalan. raiders did not even attack the Presidencia, the seat of local
There were exchanges of bad accusations and reputes. Government. Rather, the object was to attain by means of force,
intimidation, etc. one object, to wit, to inflict an act of hate or
Result: Punzalan beat Pasumbal by an overwhelming majority revenge upon the person or property of a public official,
of 2,221 votes. Naturally, Umali and Pasumbal were keenly namely, Punzalan who was then Mayor of Tiaong. Under Article
disappointed, and according to the evidence, adopted 139 of the Revised Penal Code this was sufficient to constitute
measures calculated to frustrate Punzalan's victory. sedition.
Raid Narration As regards the crime of robbery with which appellants were
Amado Mendoza narrates that on morning of November 12, he charged and of which they were convicted, we are also of the
heard Umali instruct Pasumbal to contact the Huks through opinion that it was not one of the purposes of the raid, which
Commander Abeng so that Punzalan will be killed. Abeng and was mainly to kidnap or kill Punzalan and destroy his house.
Pasumbal had a conference. It would seem that Umali and The robberies were actually committed by only some of the
Pasumbal had a feeling that Punzalan was going to win in the raiders, presumably dissidents, as an afterthought, because of
elections the next day, and that his death was the surest way to the opportunity offered by the confusion and disorder resulting
eliminate him from the electoral fight. from the shooting and the burning of the three houses, the
• saw armed men in the lanzones grove just across the articles being intended presumably to replenish the supplies of
street from their house, belonging to the father of the dissidents in the mountains. For these robberies, only those
Umali, and among those men they saw Congressman who actually took part therein are responsible, and not the
Umali holding a revolver, in the company of Huk three appellants herein.
Commander Torio and about 20 armed men.
Afterwards they saw Umali and his companions leave With respect to the crime of multiple frustrated murder, while
in the direction of Taguan, by way of the railroad the assault upon policeman Pedro Lacorte with a hand grenade
tracks. The raid was well-planned even with a causing him injuries resulting in his blindness in one eye, may
diversionary measure. be regarded as frustrated murder; the wounding of Ortega,
Aselo, Rivano, Garcia and Lector should be considered as mere
Umali’s Version of Facts. Refreshments said that he did not see physical injuries.
the two men until they arrived about midnight when the Army
reinforcements from Lucena passed by on their way to Tiaong. Sedition did not Absorb Other Crimes
The crimes committed are, therefore, those of sedition, multiple
The natural and logical reaction on the part of Umali and murder, arson, frustrated murder and physical. The crimes
Pasumbal would have been to rush to Tiaong, see what had committed are, therefore, those of sedition, multiple murder,
really happened and then render help and give succor to the arson, frustrated murder and physical. The killing may, however,
stricken residents, including their own relatives. It will be be qualified by treachery, the raiders using firearms against
remembered that the houses of the fathers of Umali and which the victims were defenseless, with the aggravating
Pasumbal were in Tiaong and their parents and relatives were circumstance of abuse of superior strength. The three murders
residing there. And yet, instead of following a natural impulse may be punished with the penalty of death. However, because
and urge to go to Tiaong, they fled in the opposite direction of lack of the necessary votes, the penalty should be life
towards Candelaria. imprisonment.
Fortunately, however, and apparently unknown to the attackers In conclusion, we find appellants guilty of sedition, multiple
and those who designed the raid, at six o'clock that morning of murder, arson, frustrated murder and physical injuries. It shall
November 14th Punzalan and his Chief of Police had left Tiaong be understood, however, that pursuant to the provisions of
to go to Lucena, the capital, to report the results of the election Article 70 of the Revised Penal Code the duration of all penalties
to the Governor. shall not exceed 40 years.
PEOPLE v. CABRERA (1922) Sergeant Armada & Policeman Policarpio - Another platoon
of the Constabulary, between 30-40 in number, had, in the
Facts: December 13, 1920, policemen of the city of Manila meantime, arranged themselves in a firing line on the Sunken
arrested a woman who was a member of the household of a Gardens on the east side of Calle General Luna opposite the
Constabulary solider stationed at the Sta. Lucia barracks in that Aquarium. From this advantageous position the Constabulary
city. The arrest of woman was considered as an outrage fired upon the motorcycle occupied by Sergeant Armada and
committed by the policemen and it instantly gave rise to friction driven by policeman Policarpio who with companions were
between members of the Manila police department and passing along Calle General Luna in front of the Aquarium
member of the Philippine Constabulary. going in the direction of Calle Real, Intramuros. As a result of
the shooting, the driver of the motorcycle, policeman
December 14 at about sunset a policeman Mojica had an Policarpio, was mortally wounded.
encounter with various PC soldiers which resulted in the
shooting of private Macasinag of the PC ho was mortally General Rafael Crame, Chief of the Constabulary, and
wounded. It led to a deep feeling a resentment on the part of Captain Page, commanding officer of the Santa Lucia Barracks,
the soldiers at Sta. Lucia Barracks. rounded up some of the soldiers in the streets of Manila, and
other soldiers one after another returned to the Barracks where
This resentment soon converted into a desire for revenge they were disarmed. No list of the names of these soldiers was,
against the police force of Manila. The Constabulary appear to however, made.
have been aware of the state of excitement among soldiers.
December 16 – Investigation
During the afternoon of the next day, December 15, a rumor Ordered all the soldiers in Sta. Lucia barracks at that time,
spread among solider to the effect that policeman Mojica was numbered at 180, be assembled on the parade grounds and
allowed to continue on duty on the streets of Intramuros and separated to companies.
that private Macasinag has died as a consequence of the shot
he received. About 7PM, some soldiers went outside the The statements of the seventy-seven soldiers were taken in
window with rifles and ammunition under the command of writing during the afternoon, the questions were as follows:
their sergeants and corporals. When outside the quarters, these 1. name, age, status, occupation, residence
soldiers divided into groups for attack upon city police. 2. belonging to what company
3. where garrisoned on December 15
Driskill & Jacumin – One platoon of Constabulary soldiers 4. did or did not leave on 7PM
about ten or twelve, on Calle Real, Intramuros, fired in the 5. reason of leaving
direction of the intersection of Calles Real and Cabildo where 6. how to join
an American policeman named Driskill was stationed, and was 7. who asked to join
talking with a friend named Jacumin, a field clerk in the United 8. do you know Crispin Macasinag
States Army. These two men were shot and died soon 9. offended on aggression on private
afterwards. 10. how many shots fried
11. do you know if you hit someone
Victor de Torres - A street car happened to stop at this time at 12. state the place where you shot
the corner of Calles Real and Cabildo. Without considering that 13. what firearms are carried
the passengers in the car were innocent passersby, the 14. how to leave barracks
Constabulary squad fired a volley into the car, killing instantly 15. voluntariness
the passenger named Victor de Torres and gravely wounding 16. swearing on the statements
three other civilian passengers, Gregorio Cailles, Vicente
Antonio, and Mariano Cortes. The defendants were charged in one information filed in CFI
Manila with the crime of sedition and another for murder and
Captain Wichman and Patrolman Saplala - The firing on Calle serious physical injuries.
Real did not end at that time. Some minutes later, Captain
William E. Wichman, assistant chief of police of the city of Defense: The first defense was in favor of all the defendants and
Manila, riding in a motorcycle driven by policeman Saplala, was based on the contention that the written statements
arrived at the corner of Calles Real and Magallanes in Exhibits C to C-76 were not freely and voluntarily made by
Intramuros, and a volley of shots by Constabulary soldiers them. Second, there are some who did not take part in riot.
resulted in their instantaneous death. • Trial court found all guilty beyond reasonable doubt.
Patrolmen Trogue and Sison - About the same time, a police Issues: There are basically three issues to be discussed:
patrol came from the Meisic police station. When it was on Calle 1. On admissibility of the exhibit questionnaires
Real near Cabildo, in Intramuros, it was fired upon by 2. Conspiracy between the accused
Constabulary soldiers who had stationed themselves in the 3. Conviction of the accused of a violation of the treason
courtyard of the San Agustin Church. This attack resulted in the and sedition law.
death of patrolmen Trogue and Sison.
Admissibility of the Exhibits Conviction Under Treason and Sedition Law

Appellants claim that fraud and deceit marked in the Sedition is the raising of commotions or disturbances in the
preparation of the 77 confessions. It is alleged that some of the State. Act No. 292 makes all persons guilty of sedition who rise
defendants under the impression that those who took part in publicly and tumultuously in order obtain by force or outside
the riot would be transferred to Mindanao, some affirmed of legal methods any one of the five objects of sedition.
because of the desire to leave Manila.
On the Persons Covered by Sedition
Test of Admissibility Subdivision 3 of section 5 of the Treason and Sedition Law
The true test of admissibility is that the confession is made makes no distinction between the persons to which it applies.
freely, voluntarily, and without compulsion or inducement of In one sense there was a fight between two armed bodies of
any sort." If the confession is freely and voluntarily made, it the Philippine Govern ment, but it was an unequal fight brought
constitutes one of the most effectual proofs in the law against on by the actions of the accused.
the party making it. The burden of proof to show that
confession was not voluntarily made or was obtained under In the case: Counsel's contention that in order for there to be
pressure is on the accused. a violation of subdivision 3 of section 5 of Act No. 292 it is
necessary that the offender should be a private citizen and the
In the case: What occurred in the preparations of confessions offended party a public functionary.
were clearly explained. The source of the rumor is not
established. With military orders given in English and living in That what really happened in this instance was a fight between
the city of Manila where the dialect is Tagalog, all of the two armed bodies of the Philippine Government, is absolutely
defendants must have understood the substantial part of without foundation. The ruling on conviction on sedition is
Colonel Sweet's remarks. What is more important, there could affirmed.
be no misunderstanding as to the contents of the confessions
as written down. In open court, sixty-nine of the defendants Held: In this connection, it will be recalled that the court
reiterated their guilt. sentenced each of the private soldiers to suffer imprisonment
• These PC soldiers must have been aware of the for ten years and to pay a fine of P5,000 and one seventy-
penalties meted out for criminal offenses. seventh of the costs for violation of the Treason and Sedition
• These confessions contain the statements that they Law or Act No. 292.
were made freely and voluntarily without any promise
of immunity. That such was the case was corroborated US v. TOLENTINO (1906)
by the attesting witnesses whose credibility has not
been successfully impeached. Facts: Tolentino was convicted with the crime of “uttering
The exhibits are correctly admitted in trial as so ruled by court. seditious words and writings, publishing and circulating
scurrilous libels against the Government of US.”
Conspiracy Between the Accused
The contention of appellants is that there is lacking evidence to That on May 14, 1903, in Manila he did unlawfully utter
show connivance between them. The argument is then seditious words and speeches and did write, publish, and
advanced that the appellants cannot they held criminally circulate scurrilous libels against the Government which said
responsible because of the so-called psychology of crowds false, seditious, and inflammatory words and scurrilous libels
theory. Stating that at the time of the commission of the crime, are in the Tagalog language in a theatrical work written by said
they were mere automatons obeying the insistent call of their Aurelio Tolentino, and which was presented by him and others
companions and of their uniform. on the said 14th day of May 1903, at the "Teatro Libertad," in
the city of Manila, entitled 'Kahapon Ngayon at Bukas'
Proving Conspiracy, Means and Methods
Conspiracies are generally proved by a number of indefinite Issue: Whether or not the accused was guilty of the crime of
acts, conditions, and circumstances which vary according to the inciting to sedition.
purposes to be accomplished. If it be proved that the
defendants pursued by their acts the same object, one Discussion: The Court held that the publication and
performing one part and another part of the same, so as to presentation of the drama directly and necessarily tended to
complete it, with a view to the attainment of that same object, instigate others to cabal and meet together for unlawful
one will be justified in the conclusion that they were engaged purposes, and to suggest and incite rebellious conspiracies and
in a conspiracy to affect that object. riots and to stir up the people against the lawful authorities and
to disturb the peace of the community and the safety and order
In the case: It is incontestable that all of the defendants were of the Government.
imbued with the same purpose, which was to avenge
themselves on the police force of the city of Manila. A common The unmistakable tendency of the play, in view of the time,
feeling of resentment animated all. A common plan evolved place, and manner of its presentation, was to inculcate a spirit
from their military training was followed. The effort to lead the of hatred and enmity against the American people and the
court to psychology is unavailing. Conspiracy proven. Government of the United States in the Philippines.
And we are satisfied that the principal object and intent of its The message contains are as follows:
author was to incite the people of the Philippine Islands to My dear wife, if someone asks you why I committed suicide, tell
open and armed resistance to the constituted authorities, and to them I did it because I was not pleased with the adininistration
induce them to conspire together for the secret organization of of Roxas. Tell the whole world about this.
armed forces, to be used when the opportunity presented itself,
for the purpose of overthrowing the present Government and "And if they ask why I did not like the administration of Roxas,
setting up another in its stead. point out to them the situation in Central Luzon, the
Hukbalahaps. Tell them about Julio Guillen and the banditry of
Contention that is was only for Entertainment Purposes Leyte.
While the appellant contends that there was no intent to
commit the crime of which he is charged, for no intent was "Dear wife, write to President Truman and Churchill. Tell them
proved in the evidence of record; and that the drama is, in itself, that here in the Philippines our government is infested with
a purely literary and artistic production wherein the legendary many Hitlers and Mussolinis. "Teach our children to burn
history of these Islands and their future, as imagined by the pictures of Roxas if and when they come across one.
author, are presented merely for the instruction and
entertainment of the public. "I committed suicide because I am ashamed of our government
under Roxas. I cannot hold high my brows to the world with this
The Court held that this contention cannot be maintained. dirty govermrfent. "I committed suicide because I have no
The public presentation of the drama took place in the month power to put under Juez de Cuchillo all the Roxas people now
of May 1903, less than two years after the establishment of the in power. So, I sacrificed my own self."
Civil Government.
The accused admitted the fact that he wrote the note or letter
The manner and form in which the drama was presented at such above quoted and caused it publication and that he had
a time and under such conditions, renders absurd the pretense impersonated one Alberto Reveniera by signing said
that it was merely or even principally a literary or artistic pseudonyms in said not and posed himself in the picture.
production, and the clumsy devices, the allegorical figures, the
apparent remoteness, past and future, of the events portrayed, Issue: Whether or not such act is considered to be a violation
could not and in fact were not intended to leave the audience in of Article 142 of the RPC as a scurrilous libel against the
doubt as to its present and immediate application, nor should Government.
they blind this court to the true purpose and intent of the author
and director of the play. Discussion: Yes. The letter is a scurrilous libel against the
Government. It calls our government one of crooks and
It is further contended that even though the accused were in dishonest persons (dirty) infested with Nazis and Fascists i.e.
fact guilty as charged, the court erred in imposing an excessive dictators. And the communication reveals a tendency to
and unjust penalty, and in fixing the amount of the fine in produce dissatisfaction or a feeling incompatible with the
dollars instead of Philippine currency. disposition to remain loyal to the government.
As to the latter objection it is sufficient to say that the use of Seditious Libels. Writings which tend to overthrow or undermine
the word "dollars" was in strict conformance with the words of the security of the movement or to weaken the confidence of
the statute, and that the equivalent of that word in Philippine the people in the government are against the public peace, and
currency is fixed by law. The penalty was within the limits are criminal not only because they tend to incite to a breach of
prescribed by law, and we are not prepared to hold that the trial the peace but because they are conducive to the destruction
court erred in the exercise of its discretion in imposing it. of the very government itself.
HELD: Tolentino is convicted of Sedition. Freedom of Speech Does Not Confer Absolute Right
It is not "unbridled license that gives immunity for every
ESPUELAS v. PEOPLE (1951) possible use of language and prevents the punishment of those
who abuse this freedom." So, statutes against sedition have
Facts: Between June 9 to June 24, 1947 in Tagbilaran, Bohol, always been considered not violative of such fundamental
Oscar Espuelas y Mendoza had his picture taken making it to guaranty, although they should not be interpreted so as to
appear as if he were hanging lifeless at the end of a piece of unnecessarily curtail the citizen's freedom of expression to
rope suspended from the limb of the tree and in fact, he was agitate for institutional changes.
merely standing on a barrel. After securing copies of his
photograph, he sent copies of same to several newspapers and In the case: Such wholesale attack is an invitation to disloyalty
weeklies of general circulation not only to Bohol but also to the government. It is called dirty, it is called a dictatorship, it
throughout the Philippines and abroad, for their publication is called shameful, but no particular omissions or commissions
with a suicide note or letter, wherein he made to appear that it are set forth.
was written by a by fictitious suicide, Alberto Reveniera
addressed to the supposed wife.
Instead the article drips with malevolence and hate towards the CHAPTER TWO
constituted authorities. It tries to arouse animosity towards all CRIMES AGAINST POPULAR REPRESENTATION
public servants headed by President Roxas whose pictures this
appellant would burn and would teach the younger generation What are the crimes against popular representation?
to destroy. 1. Acts tending to prevent the meeting of the National
Assembly and similar bodies.
On the Allegation that it did not discredit Whole Government 2. Disturbance of proceedings.
Article 142 punishes not only all libels against the Government 3. Violation on parliamentary immunity.
but also "libels against any of the duly constituted authorities
thereof." Section One. – Crimes against legislative bodies
And similar Bodies
The "Roxas people" in the Government obviously refer at least
to the President, his Cabinet and the majority of legislators to Article 143. Acts tending to prevent the meeting of the
whom the adjectives dirty, Hitlers and Mussolinis were naturally Congress and similar bodies. – The penalty of prision
directed. On this score alone the conviction could be upheld. correccional or a fine ranging from Forty thousand pesos
(P40,000) to Four hundred thousand pesos (P400,000) or
Essence of Seditious Libel both, shall be imposed upon any person who, by force or
Its essence is its immediate tendency to stir up general fraud, prevents the meeting of Congress or of any of its
discontent to the pitch of illegal courses; that is to say to induce committees or subcommittees, Constitutional
people to resort to illegal methods other than those provided Commissions or committees or divisions thereof, or of
by the Constitution, in order to repress the evils which, press any provincial board or city or municipal council or
upon their minds. board.
In the case: The mere fact that a person was so disgusted with ELEMENTS:
his "dirty government" to the point of taking his own life, is not 1. That there be a projected or actual meeting of the
merely a sign of disillusionment; it is a clear act to arouse its National Assembly or any of its committees or
readers a sense of dissatisfaction against its duly constituted subcommittees, constitutional committees or
authorities. divisions thereof, or of any provincial board or city or
municipal council or board.
The mention made in said letter of the situation in Central 2. That the offender who may be any person prevents
Luzon, the Hukbalahaps, Julio Guillen and the banditry in Leyte, such meeting by force or fraud.
which are instances of flagrant and armed attacks against the
law and the duly constituted authorities. Example. It was held that any stranger, even if he be the
municipal president himself or chief of police shall respect the
This line cannot but be interpreted by the reading public as an meeting of the council and has no right to dissolve it thought
indirect justification of the open defiance by the Hukbalahaps violence.
against the constituted government, the attempt against the
life of President Roxas and the ruthless depredations Article 144. Disturbance of proceedings. – The penalty of
committed by the bandits of Leyte, thus insinuating that a state arresto mayor or a fine from Forty thousand pesos
of lawlessness, rebellion and anarchy would be very much (P40,000) to Two hundred thousand pesos (P200,000)
better than the maladministration of said President and his me. shall be imposed upon any person who disturbs the
meetings of Congress or of any of its committees or
The letter suggested the decapitation or assassination of all subcommittees. Constitutional Commissions or
Roxas officials and such suggestion clinches the case against committees or divisions thereof, or of any provincial
the apellants. board or city or municipal council or board, or in the
presence of any such bodies should behave in such
Held: But in this instance, the attack on the President passes manner as to interrupt its proceedings or to impair the
the furthest bounds of free speech and common decency. More respect due it.
than a figure of speech was intended. There is a seditious
tendency in the words used, which could easily produce ELEMENTS:
disaffection among the people and a state of feeling 1. A meeting of the Congress or any of its committees or
incompatible with a disposition to remain loyal to the subcommittees, constitutional commissions or
Government and obedient to the laws committees or divisions thereof, or of any provincial
board or city or municipal council or board.
The accused must therefore be found guilty as charged. And 2. That the offender does any of the following acts:
there being no question as to the legality of the penalty a. Disturbs any of such meetings.
imposed on him, the decision will be affirmed with costs. b. Behaves, while in the presence of any such bodies,
in such a manner as to interrupt its proceedings or
to impair the respect due it.
Meeting of a Legislative Body Must be Disturbed ELEMENTS

A meeting of municipal officials called by a mayor, and that 1. That the offender is a public officer or employee.
there was heated exchange between the chief of police, the 2. That he arrests or searches any member of the
mayor and the councilor. The chief of police in this case is not Congress.
considered to have violated Article 144 but on Article 287 on 3. That the Congress, at the time of the arrest or search,
unjust vexation because the meeting was not of the municipal is in regular or special session.
council but a member of a council being a participant therein 4. That the member arrested or searched has not
such meeting (People v. Calera, 45 OG 2576). committed a crime punishable under the Code by a
penalty higher than prision mayor.
NOTE: The complaint for disturbance of proceedings may be
filed by a member of the legislative body. NOTE: It is not necessary that a member of the Congress is
actually prevented from attending the meeting of the Congress.
Section Two. – Violation of Parliamentary Immunity It is sufficient that the offender, in using force, intimidation or
threat or fraud has the purpose to prevent such member to
Article 145. Violation of parliamentary immunity. The exercise any of his prerogatives.
penalty of prision mayor, shall be imposed upon any
person who shall use force, intimidation, threats or fraud Parliamentary Immunity Does Not Protect Members of the
to prevent any member of the Congress from attending Congress from Responsibility Before the Body Itself
the meetings of the Congress or of any of its committees Parliamentary immunity guarantees the legislator complete
or subcommittees, constitutional commissions or freedom of expression without fear of being made responsible
committees and subcommittees thereof, from in criminal or civil actions before the courts or any other forum
expressing his opinions or casting his vote; and the outside of the Congressional Hall. But it does not protect him
penalty of prision correccional shall be imposed upon from responsibility before the legislative body itself whenever
any public officer or employee who shall, while the his words and conduct are considered by the latter disorderly
Congress is in regular or special session, arrest or search or unbecoming of a member thereof.
any member thereof, except in case such member has
committed a crime punishable under this Code by a For unparliamentary conduct, members of Parliament or of
penalty higher than prision mayor. Congress have been, or could be censured, committed to
prison, suspended, even expelled by the votes of their
ACTS PUNISHABLE colleagues (Osmeña v. Pendatun, et al., 109 Phil. 863).
1. By using force, intimidation, threats, or frauds to
prevent any member of the Congress from Constitutional Provision on Parliamentary Immunity
a. Attending the meetings of the Congress or The 1987 Constitution exempts member of the Congress from
any of its committees or subcommittees, arrest while the Congress is in session, for all offenses
constitutional commissions or committees or punishable by a penalty less than prision mayor.
divisions thereof. • This mean that a public officer who arrests a member
b. Expressing his opinions of the Congress who committed a crime punishable
c. Casting his vote by prision mayor is not liable under Article 145.
• To be consistent with the Constitution, the phrase by
ELEMENTS a penalty higher than prision mayor should be
A. That the offender uses force, intimidation, threats or amended to by a penalty of prision mayor or higher.
fraud;
B. That the purpose of the offender is to prevent any MARTINEZ v. MORFE (1972)
member of the Congress from – 44 SCRA 22
a. Attending the meeting of the Congress any Facts: Petitioners Manuel Martinez and Fernando Bautista as
of its committees or subcommittees, delegates of the Constitutional Convention would invoke what
constitutional commissions or committees or they consider to be the protection of the above constitutional
divisions thereof. provision
b. Expressing his opinions
c. Casting his vote Iif considered in connection with Article 145 of the RPC
penalizing a public officer who shall, during the sessions of the
NOTE: Offender under the first punishable act is any person. Congress, “arrest or search any member thereof, except in case
such member has committed a crime punishable by a penalty
2. By arresting or searching any member thereof while higher than prision mayor.
the Congress is in regular or special session, except in
case such member has committed a crime punishable Both of them are facing criminal prosecutions, falsification of a
under the Code by a penalty higher than prision mayor public document for Martinez while for Bautista for violation of
(reclusion temporal – death). the Revised Election Code.
Facts on Petitioner Martinez CHAPTER THREE

An information against him was filed for falsification of public ILLEGAL ASSEMBLIES AND ASSOCIATIONS
document. Its basis was his stating under oath in his COC for
delegate to the Constitutional Convention that he was born on Article 146. Illegal assemblies. – The penalty of prision
June 20, 1945 when he was really born on June 20, 1946. He correccional in its maximum period to prision mayor in
was arrested by the City Sheriff in the afternoon of September its medium period shall be imposed upon the organizers
6, 1971. At the time of the filing of the petition, he was confined or leaders of any meeting attended by armed persons for
at the City Jail in Manila. At that time, he was on his way to the purpose of committing any of the crimes punishable
attend the plenary session and such arrest was against his will under this Code, or of any meeting in which the audience
and over his protest. is incited to the commission of the crime of treason,
rebellion or insurrection, sedition, or assault upon a
Facts on Petitioner Bautista, Sr. person in authority or his agents. Persons merely present
Two criminal complaints were filed against him by a defeated at such meeting shall suffer the penalty of arresto mayor,
delegate-aspirant Moises Maspil for having violated the unless they are armed, in which case the penalty shall be
Revised Election Code in that they gave and distributed free of prision correccional.
charge, food, drinks and cigarettes at two public meetings.
If any person present at the meeting caries an unlicensed
Petition: What is sought by the petitioners was the quashal of firearm, it shall be presumed that the purpose of said
their respective arrest warrants that by virtue of the meeting, insofar as he is concerned, is to commit acts
parliamentary immunity they enjoy as Constitutional punishable under this Code, and he shall be considered
Convention delegates traceable under Article VI, Section 15 of a leader or organizer of the meeting within the purview
the Constitutional together with Article 145 of the RPC, that of the preceding paragraph.
they are immune for arrest.
As used in this article, the word “meeting” shall be
Charges understood to include a gathering or group, whether in
1. Martinez y Festin. Falsification of public document a fixed place or moving.
punishable by prision mayor.
2. Bautista, Sr. Revised Election Code which penalty ILLEGAL ASSEMBLIES
cannot be higher than prision mayor. 1. Any meeting attended by armed persons for the purpose of
committing any of the crime punishable under the Code.
Issue: Whether or not the motion to quash arrest warrants
should be granted due to their parliamentary immunity. ELEMENTS
1. That there is a meeting, a gathering or group of
Discussion: No. Their reliance on the constitutional provision persons, whether in a fixed place or moving;
as supplemented by the RPC is futile. There is no justification 2. That the meeting is attended by armed persons;
then for granting their respective pleas. 3. That the purpose of the meeting is to commit any of
the crimes punishable under the Code.
Parliamentary Immunity Covers Only Civil Arrests
Section 15, Article VI of the Constitution makes it clear that 2. Any meeting in which the audience, whether armed or not, is
parliamentary immunity from arrest does not cover any incited to the commission of the crime of treason, rebellion or
prosecution from treason, felony and breach of peace. insurrection, sedition, or assault upon a person in authority or
his agents.
In this case: Article 145 of the RPC does not come to their
rescue. Such a provision took effect on 1932 and could not ELEMENTS
survive after the Constitution became inoperative in 1935. 1. That there is a meeting, a gathering or group of
persons, whether in a fixed place or moving;
Article 145 of the Revised Penal Code is Inoperative 2. That the audience, whether armed or not, is incited to
By virtue of Section 2, Article XVI of the Constitution which the commission of the crime of treason, rebellion or
declares as inoperative any existing law inconsistent with the insurrection, sedition or direct assault.
Constitution, Article 145 of the RPC enacted on January 1, 1932
and which accords legislators a generous treatment exempting Q. What crime is committed by forty unarmed persons who
them from arrest even if warranted under the penal law, is gather together in a meeting for the purpose of committing
inconsistent with the constitution and thus inoperative. theft of some large cattle?
Held: Petition for certiorari and habeas corpus by Martinez and A. None. They are not punishable under the two forms of illegal
Bautista are hereby dismissed assembly, for the first form requires armed persons while the
second specifies the crimes and also there is no crime for
proposal to commit qualified theft.
First Form of Illegal Assembly: Persons Must be Armed Article 147. Illegal associations. – The penalty of prision
Suppose seven of the forty persons are only armed, and the correccional in its minimum and medium periods and a
purpose of the gathering to commit robbery. The meeting is fine not exceeding Two hundred thousand pesos
considered an illegal assembly. The law does not state how (P200,000) shall be imposed upon founders, directors,
many of the persons attending the meeting must be armed. and presidents of associations totally or partially
• Even a person merely attending without arms is also organized for the purpose of committing any of the
liable under the last sentence of Article 146. crimes punishable under this Code or for some purpose
contrary to public morals. Mere members of said
“Any Meeting in Which the Audience in Incited to the associations shall suffer the penalty of arresto mayor.
Commission of the Crime of Treason, Rebellion, etc.”
The law uses the phrase the audience is incited. Then it is a Forms of Illegal Associations
necessary element in the second form of illegally assembly that 1. Associations totally or partially organized for the
the audience of the assembly is indeed actually incited. purpose of committing any of the crimes punishable
under this Code.
Article 146 Article 138 and 142 2. Associations totally or partially organized for some
Second form of illegal It penalizes the inciting to purpose contrary to public morals.
assembly punishes any rebellion (138) and inciting
meeting in which the to sedition (142). Persons Liable for Illegal Association
audience is actually incited. 1. Founders, directors, and president of the association.
Persons liable are those The person liable is the only 2. Mere members of the association.
organizers and leaders and one who “shall incite others”
persons merely present at under Article 138 and those Illegal Association from Illegal Assembly
the meeting. “should incite others” under Article 146 Article 147
Article 142. It is necessary that there is It is not necessary that there
an actual meeting or be an actual meeting.
If in a meeting the audience is incited to the commission of assembly of armed persons
rebellion or sedition, the crimes committed are: for the purpose of
(1) Illegal assembly as regards to committing any of the
a. The organizers or leaders crimes punishable under
b. Persons merely present this Code, or of individuals,
(2) Inciting to rebellion or sedition insofar as the one although not armed, who
inciting them is concerned. are incited to the
commission of the specified
Persons Liable for Illegal Assembly crimes.
1. The organizers or leaders of the meeting. It is the meeting or The act of forming or
2. Persons merely present at the meeting. attendance at such meeting organizing and membership
that are punished. in the illegal associations.
As illegal assembly is a felony. The persons merely present at Persons liable are Persons liable are
the meeting must have common intent to commit the felony 1. Organizers or 1. Founders, directors
of illegal assembly. The absence of such intent may exempt a leaders of the and president.
person present from criminal liability. Thus, if a person happens meeting. 2. Members.
to be present at an illegal assembly out of curiosity he is not 2. Persons present.
liable.
Subversion: Acts Punished under RA 1700
Responsibility of Persons Merely Present 1. Knowingly, willfully and by overt acts (a) affiliating
1. If they are not armed, the penalty is arresto mayor oneself with, (b) becoming, or (c) remaining a member
2. If they carry arms, like bolos or knives or licensed of the Communist Party of the Philippines and/or its
firearms, the penalty is prision correccional. successors or of any subversive association as defined
in Sec. 2 of the Act;
If Any Person in a Meeting Carries Unlicensed Firearm 2. Conspiring with any other person to overthrow the
1. It is presumed that the purpose of the meeting insofar Government of the Republic of the Philippines or the
as he is concerned, is to commit acts punishable under government of any of its political subdivisions by
this Code. force, violence, deceit, subversion or other illegal
2. He is considered as a leader or organizer of the means, for the purpose of placing such government or
meeting. political subdivision under the control and domination
of any alien power; and
Meeting, Defined under Article 146 3. Taking up arms against the Government, the offender
A gathering or group, whether in a fixed place or moving is being a member of the Communist Party or of any
included in the word meeting. subversive association defined in Sec. 2.
Organizations Outlawed by RA 1700 Two Ways of Committing the Crime of Direct Assaults
The Communist Party, which is declared to be an organized 1. Without public uprising, by employing force or
conspiracy, any other organization and their successors having intimidation for the attainment of any of the purposes
the purpose of overthrowing the Government of the Republic enumerated in defining the crimes of rebellion and
of the Philippines to establish in the Philippines a totalitarian sedition.
regime and place the Government under the control and 2. Without public uprising, by attacking, by employing
domination of an alien power are declared illegal and outlawed. force, or by seriously intimidating or seriously resisting
any person in authority or any of his agents, while
Violation of Anti-Subversion Act from Rebellion engaged in the performance of official duties or on
The crime of rebellion is committed by rising publicly and the occasion of such performance.
taking up arms against the Government for any of the purposes
specified in Article 134 of the Revised Penal Code; while the ELEMENTS OF THE FIRST FORM OF DIRECT ASSAULT
Anti-Subversion Act (Republic Act No. 1700) punishes affiliation 1. That the offender employs force or intimidation
or membership in a subversive organization as defined therein. 2. That the aim of the offender is to attain any of the
purposes of the crime of rebellion or any of the
In rebellion, there must be a public uprising and taking of arms objects in the crime of sedition.
against the Government; whereas, in subversion, mere 3. That there be no public uprising.
membership in a subversive association is sufficient, and the
taking up of arms by a member of a subversive organization NOTE: It is not necessary under the first form that the offended
against the Government is but a circumstance which raises the party be a person in authority of his agent. If the aim of the
penalty to be imposed upon the offender (People vs. Liwanag, offender is to object of the sedition, the offended party may be
74 SCRA 473). any private individual or person belonging to a social class.
CHAPTER FOUR ELEMENTS OF THE SECOND FORM OF DIRECT ASSAULT

ASSULT UPON, AND RESISTANCE AND DISOBEDIENCE TO, 1. That the offender
PERSONS IN AUTHORITY AND THEIR AGENTS a. Makes an attack
b. Employs force
Article 148. Direct assaults. - Any person or persons who, c. Makes a serious intimidation
without a public uprising, shall employ force or d. Makes a serious resistance
intimidation for the attainment of any of the purposes 2. That the person is a person in authority or his agent.
enumerated in denning the crimes of rebellion and 3. That at the time of the assault the person in authority
sedition, or shall attack, employ force, or seriously or his agent
intimidate or resist any person in authority or any of his a. Is engaged in the actual performance of
agents, while engaged in the performance of official official duties, or that he is assaulted
duties, or on occasion of such performance, shall suffer b. By reason of past performance of official
the penalty of prision correccional in its medium and duties.
maximum periods and a fine not exceeding Two 4. That the offender knowns that the one he is assaulting
hundred thousand pesos (P200,000), when the assault is is a person in authority or his agent in the exercise of
committed with a weapon or when the offender is a his duties.
public officer or employee, or when the offender lays 5. That there be no public uprising.
hands upon a person in authority. If none of these
circumstances be present, the penalty of prision First Element. – Offender makes an attack, employs force
correccional in its minimum period2and a fine not The word “attack” includes any offensive or antagonistic
exceeding One hundred thousand pesos (P100,000) shall movement or action of any kind. The force employed must be
be imposed. of a serious character as to indicate determination to defy the
law and its representative at all hazards.
Additional Penalty for Attacking Ambassador or Minister
There is an additional penalty for attacking ambassador or NOTE: The force employed need not be serious when the offender
minister which is imprisonment not more than three years and party is a person in authority. The reason for the difference in
fined not exceeding two hundred pesos in addition to the the rule as regards to the degree of force is that when the
penalties imposed by the RPC (Section 6, RA 75). person offended is a person in authority the penalty is higher.
• Resistance and intimidation should also be serious to
NOTE: Direct assaults are different from ordinary assault. For constitute direct assault (e.g. pointing a gun).
the former is a crime against public order while ordinary assault • Pointing a gun at a military police captain who is in
under Article 263 to 266 are crimes against persons. Directs performance of his duty constitute assault upon an
assaults are triable by the Courts of First Instance now renamed agent of a person in authority, and it would constitute
as the Regional Trial Court (Villanueva v. Ortiz 108 Phil. 493; direct assault for there is now serious intimidation
Salabasalo v. Angcoy, 108 Phil. 649). against the person in authority (People v. Diama).
Second Element. – The Person Assaulted is a Person in “By reason of performance of duty”
Authority or His Agent Direct assault is also committed when the person in authority
Article 148, the second part, protects only public officers who or his agent is attack or seriously intimidated “on occasion or
are either persons in authority or their agents. Not every public such performance” official duty. This is by reason of past
officer is at the same time a person in authority or his agent. performance of an official duty, if the attack was based on that
impelling motive even if the person was not on official duty at
Who is a person in authority? the very time of the assault. Hence, it is not necessary that the
Article 152 of the RPC provides that they are any person directly person in authority or his agent is in the actual performance of
vested with jurisdiction, whether as an individual or as a his duty when attacked or seriously intimidated.
member of some court or governmental corporation, board, or
commission, shall be deemed a person in authority. A barangay Evidence of Motive, When Necessary
captain and a barangay chairman shall also be deemed a Evidence of motive of the offender is important when the
person in authority. person in authority or his agent who is attacked or seriously
intimidated is not in the actual performance of his official duty.
Teachers, professors, and persons charged with the supervision When injuries were inflicted who was not in performance of
schools and lawyers in the actual performance of their duties, motives of the offender becomes important, because if
professional duties or on the occasion of such performance of the attack was due to the previous act in official duties of the
their professional duties are also deemed persons in authority. person then it shall be direct assault.
• Status of person as a person of authority as a matter
of law, ignorance thereof is no excuse. But, when a person in authority or his agent is in actual
performance of his official duty, the motive of the offender is
Who is an agent of a person in authority? now considered immaterial.
An agent of a person in authority is one who, by direct provision
of law or by election or by appointment by competent authority, “Without a public uprising”
is charged with the maintenance of public order and the If there is public and tumultuous uprising, the crime may be
protection of security and life and property such as barrio sedition. If the person in authority or his agent who was
councilman or barangay leader, and any person who comes to attacked in the performance of his duty, the object of the
the aid of persons in authority. uprising may to be prevent him from freely exercising his
functions.
Third Element. – In Performance of Duty or Reason Thereof
It requires that at the time such assault or intimidation or QUALIFIED ASSAULT
resistance is made, the person in authority or his agent is: There are two kinds of direct assault under the second form,
(1) Is engaged in the actual performance of his official which are (1) simple assault and (2) qualified assault. It is
duty qualified when the following happen:
(2) At least that the assault or intimidation is done by 1. When the assault is committed with a weapon.
reason of the past performance of said duty. 2. When the offender is a public officer or employee.
3. When the offender lays hands upon a person in
NOTE: When the persons in authority or their agents descended authority.
to matters which are private in nature, an attack made by one
against the other is not direct assault. NOTE: Slight physical injuries are absorbed in direct assault.
Instances when Person in Authority in Agent Not in Performance Article 149. Indirect assault. – The penalty of prision
• Exceeds his power or acts without authority. correccional in its minimum and medium periods and a
• Unnecessary use of force or violence to make him fine not exceeding One hundred thousand pesos
respected, at that moment he acts as a private person. (P100,000) shall be imposed upon any person who shall
make use of force or intimidation upon any person
Offender and Offended Party: Direct Assault or Not coming to the aid of the authorities or their agents on
It there is such conflict between such, then the aggravating occasion of the commission of any of the crimes defined
circumstance of being a public employee is applicable. in the next preceding article.
However, if the conflict is due to an actual conflict in jurisdiction
there is no direct assault. ELEMENTS OF INDIRECT ASSAULT
1. That a person in authority or his agent is the victim of
Knowledge of the accused that the victim is a person in any of the forms of direct assault as defined under
authority or his agent is essential. The accused assaulting Article 148.
must have knowledge, because the accused must have the 2. That a person comes to the aid of such authority or his
intention to offend, injure or assault the offended party as agent.
being a person in authority or as agent. 3. That the offender makes se of force or intimidation
• Intention to defy authorities, must be present. upon such person coming to the aid of the authority
• Aggravating circumstance disregard on rank, inherent. or his agent.
Indirect Assault can be Committed Only when a Direct “Without Legal Excuse”
Assault Has Been Committed The article indicates that only disobedience without legal
Article 149 says “on occasion of the commission of any of the excuse is punishable. Hence, Article 150 may not apply when
crimes defined in the next preceding article.” Hence, indirect the papers or documents may be used in evidence against the
assault can be committed only when direct assault is also owner thereof, because it would be equivalent to compelling
committed. There can be no indirect assault when the private him to be witness against himself.
individual helping the policeman arrest a person is attacked the
arrested person for the police was not the victim. Article 150 and Legislative Power for Contempt
The power of inquiry — with process to enforce it — is an
A private person who comes to the rescue of an authority or his essential and appropriate auxiliary to the legislative functions.
agent enjoys the privileges of the latter, and any person who Experience has shown that mere requests for certain
uses force or intimidation upon such person. information are often unavailing and that information which is
volunteered is not always accurate or complete; so, some
Article 150. Disobedience to summons issued by the means of compulsion is essential to obtain what is needed.
National Assembly, its committees or subcommittees, by
the Constitutional Commissions, its committees, Article 151. Resistance and disobedience to a person in
subcommittees or divisions. — The penalty of arresto authority or the agents of such person. — The penalty of
mayor or a fine ranging from Forty thousand pesos arresto mayor and a fine not exceeding One hundred
(P40,000) to Two hundred thousand pesos (P200,000), thousand pesos (P100,000) shall be imposed upon any
or both such fine and imprisonment, shall be imposed person who not being included in the provisions of the
upon any person who, having been duly summoned to preceding articles shall resist or seriously disobey any
attend as a witness before the National Assembly, its person in authority, or the agents of such person, while
special or standing committees and subcommittees, the engaged in the performance of official duties.
Constitutional Commissions and its committees,
subcommittees, or divisions, or before any commission When the disobedience to an agent of a person in
or committee chairman or member authorized to authority is not of a serious nature, the penalty of arresto
summon witnesses, refuses, without legal excuse, to menor or a fine ranging from Two thousand pesos
obey such summons, or being present before any such (P2,000) to Twenty thousand pesos (P20,000) shall be
legislative or constitutional body or official, refuses to imposed upon the offender
be sworn or placed under affirmation or to answer any
legal inquiry or to produce any books, papers, ELEMENTS OF RESISTANCE AND SERIOUS DISOBEDIENCE
documents, or records in his possession, when required 1. That a person in authority or his agent is engaged in
by them to do so in the exercise of their functions. The the performance of official duty or gives a lawful order
same penalty shall be imposed upon any person who to the offender.
shall restrain another from attending as a witness, or 2. That the offender resists or seriously disobeys such
who shall induce disobedience to a summons or refusal person in authority or his agent.
to be sworn by any such body or official. 3. That the act of the offender is not included in the
provisions of Articles 148, 149, 150.
Acts Punished as Disobedience to Congress, Committees or
the Constitutional Commission Concept of the Offense of Resistance and Obedience
1. By refusing, without legal excuse to obey summons of It consists in a failure to comply it orders directly issued by the
the National Assembly, its special or standing authorities in the exercise of their official duties. Failure to
committees and subcommittees, the Constitutional comply with legal provision of a general character or with
commissions and its committees, subcommittees or judicial decisions merely declaratory or rights or obligations, or
divisions, or by any commission or committee prohibitory decisions do not constitute the crime of
chairman or member authorized to summon disobedience of authorities.
witnesses.
2. By refusing to be sworn or placed under affirmation “While engaged in the performance of official duties”
while being before such legislative or constitutional Such person must be in actual performance of his official duties.
body or official. This is so because there can be no resistance or disobedience
3. By refusing to answer any legal inquiry or to produce when there is nothing to resist or to disobey. But when a person
any books, papers, documents, or records in his in authority or his agent is in the performance of his duties, or
possession, when required by them to do so in the gives an order and the performance is disobeyed then the crime
exercise of their functions. under Article 151 is committed.
4. By restraining another from attending as a witness in
such legislative or constitutional body. Note: The accused must have knowledge that the person
5. By inducing disobedience to a summons or refusal to arresting him is a person in authority. It must be shown beyond
be sworn by any such body or official. reasonable doubt that the accused knew to constitute
resistance or disobedience.
ELEMENTS OF SIMPLE OBEDIENCE Person in Authority

1. That an agent of a person in authority is engaged in They are those vested with jurisdiction. To be an agent of a
the performance of official duty or gives a lawful order person in authority one must be charged with:
to the offender. (1) The maintenance of public order
2. That the offender disobeys such agent of a person in (2) Protection and security of life and property
authority.
3. That such disobedience is not of a serious nature.
CASES UNDER DIRECT ASSAULT
Direct Assault Serious Disobedience
The person in authority or The person in authority or PEOPLE v. BELTRAN (1985)
his agent must be engaged his agent must be in actual 138 SCRA 521
in the performance of performance of his duties. Facts: Accused-appellants Beltran and others were indicted for
official duties or that he is murder and double attempted murder with direct assault in CFI
assaulted by reason thereof. Cagayan the trial court ruled that on the following that:
Committed in four ways: Committed only be resisting 1. Beltran, Bugarin, Siazon, Puzon, Hernandez and
• Attacking or seriously disobeying a Beltran are guilty beyond reasonable doubt of the
• Employing force person in authority or his crime of murder for the death of Vicente Quirolgico.
• Seriously intimidating agent. 2. All the accused guilty beyond reasonable doubt of
• Seriously resisting a double attempted murder with direct assault.
person authority/agent 3. Delfino Beltran to be guilty beyond reasonable doubt
Direct assault in resisting an Resistance against an agent of the crime of attempted homicide.
agent of a person authority of a person in authority
• Force employed • Use of force in Prosecutor’s Facts and Evidence
• Intention to defy resistance is not so On January 11, 1972, between 9AM and 10AM in Ballesteros,
the law and the serious. Cagayan, Ernesto Alvarado was bringing Calixto Urbi home in a
officers enforcing. • No manifest jeep. Passing by the Puzon Compound, Delfino Beltran (Delfino)
intention to defy shouted at them, “Oki ni inayo”, they proceeded and ignored
Attack must be serious and the law, officers Delfino. After Alvarado brought Urbi to his house, he went to
deliberate. enforcing it. the house of Mayor Bienvenido Quirolgico and reported the
matter. The mayor told the Chief of Police of action.
When the offense is against If no force is employed by
person in authority, any the offender, the crime They decided to talk to Delfino Beltran and his companions to
kind or degree of force will committed is Article 151. surrender. When they came near the compound, they saw
give rise to direct assault. appellants Bugarin and Hernandez and suddenly there was a
simultaneous discharge of gunfire. The mayor’s son, Vicente
Article 152. Persons in Authority and Agents of Persons who was with them, cried: “I am already hit, Daddy.” As he fell,
in Authority — Who shall be deemed as such. — In Vicente pushed his father, and both fell down.
applying the provisions of the preceding and other
articles of this Code, any person directly vested with When the firing has stopped, they decided to bring Vicente to
jurisdiction, whether as an individual or as a member of the hospital, as the jeep left the compound three men came out
some court or government corporation, board, or of the Puzon Compound and fired at the fleeing vehicle they
commission, shall be deemed a person in authority. A were Siazon, Beltran and Puzon. An hour after admission to
barangay captain and a barangay chairman shall also be the hospital, Vicente Quirolgico died. Mayor Quirolgico and
deemed a person in authority. Patrolman Rolando Tolentino was also injured.
Any person who, by direct provision of law or by election NOTE: Siazon died due to Cardiac arrest, criminal charges
or by appointment by competent authority, is charged dismiss, and criminal liability is extinguished.
with the maintenance of public order and the protection
and security of life and property, such as a barrio Bugarin’s Defense
councilman, barrio policeman and barangay leader, and He claims that between 5:00PM to 5:30PM of January 11, 1972,
any person who comes to the aid of persons in authority, the armed men inside the passing jeep of Mayor Quirolgico
shall be deemed an agent of a person in authority. In fired a Rogelio Bugarin, who was then standing at the main gate
applying the provisions of articles 148 and 151 of this of Puzon Compound. After they passed by, he reported the
Code, teachers, professors, and persons charged with the incident to Congressman Puzon, they dismissed such for no one
supervision of public or duly recognized private schools, was hurt. However, around 10:30PM of the same date, they
colleges and universities, and lawyers in the actual heard an unusual sound which appeared to be a 6x6 truck that
performance of their professional duties or on the was bumped. Around 12:00MN Delfino Beltran was guard in
occasion of such performance shall be deemed persons front of gate and a group with armed men more than ten, he
in authority. was able to recognize the Chief of Police.
When the group reached the gate of Puzon Compound, he Issue D:

peeped and took hold of the gate with an iron chain. Whether or not Delfino Beltran acted in self-defense.
Accidentally, he dropped the chain and it created a sound which
cause the group of armed men to fire upon his direction for Discussion: No. The one invoking this justifying circumstance
about half an hour. In retaliation, he loaded his gun following under Article 11(1) requires proof beyond reasonable doubt
which he saw a man falling down from the fence. that the necessary elements are present. Beltran failed to prove
• After the firing they hid in the basement for one whole any one of the elements required.
day and subsequently surrendered to authorities.
Issue E:
Issue A: Whether or not appellants are guilty of attempted murder and
Whether the evidence of the prosecution direct assault against the victims.
should be given credence in this case.
Discussion: Yes. Considering that Mayor Quirolgico is a person
Discussion: Yes. The judgment of conviction is not bereft of in authority and Patrolman Rolando Tolentino is a policeman
evidence. The testimonies of the eyewitnesses, together with who at the same time was in his uniform, and both were
the physical evidence of the autopsy and ballistics sustains. performing their official duties to maintain peace and order, the
findings of conviction on the charges are affirmed. Shooting at
Trial Judge: A Better Judge on the Credibility of Witnesses the mayor and a policeman on duty is attempted murder
The appellate courts will generally not disturb the findings of with direct assault.
the trial court, considering that it is in a better position to
decide on the question, having heard the witnesses themselves PEOPLE v. DOLLANTES (1987)
and observed their deportment and manner of testifying during 151 SCRA 592
the hearing, unless it had overlooked certain facts of substance Facts: An appeal from a decision of RTC Dumaguete convicting
and value that, if considered, might affect results of the case. the nine accused all equally guilty of the complex crime of
“Assault upon a Person in Authority Resulting in Murder”.
In the case: The denials of appellants cannot prevail over their
positive identification as the perpetrators of the crime by the Facts of the Trial Court
eyewitnesses who have not been shown to have any evil motive The deceased Marcos Gabutero at the time of his death was
to testify falsely against them. the Barangay Captain of Brgy. Maglihe, Tayasan, Negros
Occidental, that due to the approaching fiesta, a dance was held
Physical Evidence. As testified by Dr. Farin who conducted the in the barangay in the evening of April 21, 1983. While the
post-mortem examination, it showed that indeed several Barangay Captain was delivering a speech to start the dance,
firearms could have caused his wounds. This finding was the accused Pedro Dollantes went to the middle of the
supported by the ballistics report by Vicente de Vera showing dancing floor, making a dance movement “nagkorantsa”
connection of the findings. brandishing his knife and challenging everyone as to who was
brave among the people present.
The above findings further confirm the truth of the statements
of eyewitnesses that appellants traded shots with the Mayor’s The Barangay Captain approached Dollantes and admonished
group using long or high powered guns. him to keep quiet and do no disturb the dance. However, the
accused, instead of heeding to the advice, stabbed the latter on
Issue B: the left arm.
Whether there was conspiracy
Immediately, accused Hamlet Dollantes rushed towards the
Discussion: Yes. It is enough that at the time the offense was Barangay captain and stabbed him on the back and the other
committed, the participants had same purpose and were united co-accused also took turn in stabbing the Barangay Captain
in its execution as inferred from the attended circumstances. who was not armed.
Conspiracies do not require an agreement for an appreciable
period prior to the occurrence. A conspiracy legally exists, if at Except for the accused Hugo Grengia, Danny Esteban, and
the time of the offense, the accused had the same criminal Leonilo Villaester who were merely holding stones. The other
purpose and were united in its execution. co-accused took part in the stabbing incident. When the victim
died and fell to the ground, the accused in this case took turns
Issue C: in kicking the dead body.
Whether there was evident premeditation and treachery.
RTC. Finding all the accused guilty of the complex crime of
Discussion: Yes. From 9PM to 12MN they had three long ours assault upon a person in authority resulting in murder.
to mediate and reflect on their evil design. There was sudden
firing without warning to the newly arrived Mayor’s group on Issue:
the compound. No one has a personal grudge against the Whether prosecution has proven beyond reasonable
Mayor which was attacked without warning. doubt that accused are guilty of the crime.
Testimonies of the Witnesses On Conspiracy

Danilo He was 6 meters away. He testified that when the Although the examining doctor failed to find any contusion or
Garol victim started to deliver his speech, the accused abrasion on the cadaver of the victim, such absence is not
Pedro Dollantes brandishing a knife shouted, conclusive proof that the appellants did not kick the deceased.
“Who is brave here?” The victim them approached
Moreover, the fact of dancing and kicking showed conspiracy.
to admonish him but the latter stabbed the victim
on the arm. Garol attempted to take away knife
from him. The accused Grengia told Garol not to On Treachery
intervene for he might be included in the plan. Treachery was present since the appellants took turns in
stabbing the victim who was caught by surprise and did not
Grengia then made nodding signs then Hamlet have time to defend himself.
Dollantes and Alfredo Dollantes rushed to and
attacked the victim. He specified that Alfredo On Assault of Person in Authority
Dollantes, Lauro Dollantes, Monico Dollantes, and
The records show that the Barangay Captain was in the act of
Sidrito Lokesio were carrying knives while the
trying to pacify Pedro Dollantes who was making trouble in the
accused Merlando Dollantes was carrying a bolo
and that they stabbed the victim one after dance hall when he was stabbed to death. He was therefore
another. While Esteban, Grengia and Villaester killed while in the performance of his duties.
were all carrying stones which they threw at the
store of the victim’s wife. As barangay captain, it was his duty to enforce the laws and
Bonifacio He was 3 meters away. He corroborated Garol’s ordinances within the barangay. In the enforcement thereof, he
Cero testimony. He stated further that when he saw the incurs, the enmity of his people who thereafter treacherously
victim being stabbed he tried to approach the
slew him the crime committed is murder with assault upon a
group but here was held by Esteban and warned
person in authority.
him not to intervene or else he would be part of.
He ran away but Alfredo and Pedro Dollantes and
Esteban stoned him because they intended him to JUSTO v. COURT OF APPEALS (1956)
kill him also and he also saw them simultaneously 99 Phil. 453
kicking the body. Facts: An appeal from CA finding petitioner Severino P. Justo
Marciana She added that the Hugo Grengia wanted to be guilty of the crime of assault upon a person in authority. The
Gabutero Barangay Captain because he told the crowd not Court of appeals found the following facts to have been
to listen to the victim’s speech as the latter will not established.
be staying long as Barangay Captain. Testified that
the accused Villaester splashed one glass of tube
The offended party Nemesio B. de la Cuesta is a duly appointed
on the face of the deceased and that the victim
district supervisor of the Bureau of Public Schools, stationed at
had a misunderstanding with the Dollantes on a
theft case involving Hamlet. Sarrat, Ilocos Norte. Between 9AM to 10AM on October 16,
1950, he went to the division office in Laoag, Ilocos Norte in
Court Observation: It will be noted that the above witnesses answer to a call from said office, in order to revise the plantilla
were categorical and straightforward when they stated that of his district comprising the towns of Sarrat and Piddig.
they saw appellant stab the victim. They even specified the type
of weapons used by the appellants. The witnesses were familiar Around 11:25AM, De la Cuesta was leaving the office in order
with the appellants since they are all residents of the same to take his meal when he saw the appellant conversing with
locality and there is no showing of motive to testify falsely Severino Caridad, academic supervisor. Justo requested De La
against the appellants. Cuesta to go with him and Caridad to the office of the latter.
On the Allegation of Inconsistency In the office of Caridad, appellant asked about the possibility of
If there be any inconsistency or contradictions in their accommodating Miss Racela as a teacher in the district of De la
testimonies, the same are trivial and merely refer to minor Cuesta. Caridad said that there was no vacancy, except that of
matters which do not affect credibility. They do not detract from the position of shop teacher. Upon hearing answer, appellant
the essential facts and vital details of the crime pinpointing their sharply addressed the complainant thus: "Shet, you are a double
criminal responsibility. crosser. One who cannot keep his promise." The appellant then
grabbed a lead paper weight from the table of Caridad and
On Hamlet’s Admission as Lone Perpetrator challenged the offended party to go out.
Such claim is not support by sufficient evidence, in fact there
were two hunting knives that were surrendered. The claim of When they were in front of the table of one Carlos Bueno, a
liability by the accused cannot prevail over positive clerk in the division office, De la Cuesta asked the appellant to
identification by credible witnesses. put down the paper weight but instead the appellant grabbed
the neck and collar of the polo shirt of the complainant which
Claim of Self-Defense Not Sustained was torn. Carlos Bueno separated the protagonists, but not
Apart from the disproportion of the means used to repel the before the complainant had boxed the, appellant several times.
alleged attack, three witnesses of the prosecution testified that The issue of challenge was a result of a heated discussion.
Hamlet rushed to the victim and stabbed victim at the back.
Issue CHAPTER FIVE

Whether the complainant when he accepted the challenged to PUBLIC DISORDERS
fight outside and followed him out of the room, he disrobed
himself of the mantle of authority and waived the privilege of What are crimes classified under public disorders?
protection as person in authority. 1. Tumults and other disturbances of public order.
2. Unlawful use of means of publication and unlawful
utterances.
Discussion: No. The character of person in authority is not 3. Alarms and scandals.
assumed or laid off at will, but attaches a public official until he 4. Delivering prisoners from jail.
ceases to be in office.
Article 153. Tumults and other disturbances of public
Direct Assault Even in Non-Performance of Duty order — Tumultuous disturbance or interruption liable to
Assuming that the complainant was not actually performing the cause disturbance. — The penalty of arresto mayor in its
duties of his office when assaulted, this fact does not bar the medium period to prision correccional in its minimum
existence of the crime of assault upon a person in authority; so period and a fine not exceeding Two hundred thousand
long as the impelling motive of the attack is the performance pesos (P200,000) shall be imposed upon any person who
of official duty. shall cause any serious disturbance in a public place,
office or establishment, or shall interrupt or disturb
This is apparent from the phraseology of Article 148 of our public performances, functions or gatherings, or
Revised Penal Code, in penalizing attacks upon person in peaceful meetings, if the act is not included in the
authority "while engaged in the performance of official duties provisions of Articles 131 and 132.
or on occasion of such performance", the words "on occasion"
signifying "because" or "by reason" of the past performance The penalty next higher in degree shall be imposed upon
of official duty, even if at the very time of the assault no official persons causing any disturbance or interruption of a
duty was being discharged. tumultuous character.
Aggression Ahead of Stipulated Time, Unlawful The disturbance or interruption shall be deemed to be
The argument that the offended party, De la Cuesta, cannot tumultuous if caused by more than three persons who
claim to have been unlawfully attacked because he had are armed or provided with means of violence.
accepted the accused's challenge to flight, overlooks the
circumstance that as found by the Court of Appeals, the The penalty of arresto mayor shall be imposed upon any
challenge was to "go out", i.e., to fight outside the building, it person who in any meeting, association, or public place,
not being logical that the fight should be held inside the office shall make any outcry tending to incite rebellion or
building in the plain view of subordinate employees. sedition or in such place shall display placards or
emblems which provoke a disturbance of the public
Even applying the rules in dueling cases, it is manifest that an order.
aggression ahead of the stipulated time and place for the
encounter would be unlawful; to hold otherwise would be to The penalty of arresto menor and a fine not to exceed
sanction unexpected assaults contrary to all sense of loyalty and Forty thousand pesos (P40,000) shall be imposed upon
fair play. those persons who in violation of the provisions
contained in the last clause of Article 85, shall bury with
In the case: Assuming that De la Cuesta accepted the challenge pomp the body of a person who has been legally
of the accused, the facts clearly indicate that he was merely on executed.
his way out to fight the accused when the latter violently lay
hands upon him. Tumults and Other Disturbances of Public Order
1. Causing any serious disturbance in a public place,
The acceptance of the challenge did not place on the offended office or establishment.
party the burden of preparing to meet an assault at any time 2. Interrupting or disturbing performances, functions or
even before reaching the appointed place for the agreed gatherings, or peaceful meetings, if the act is not
encounter, and any such aggression was patently illegal. included in Arts. 131 and 132.
Appellant's position would be plausible if the complaining 3. Making any outcry tending to incite rebellion or
official had been the one who issued the challenge to fight; but sedition in any meeting, association or public place;
here the reverse precisely happened. 4. Displaying placards or emblems which provoke a
disturbance of public order in such place;
Held: The Court finds no reversible error in the decision 5. Burying with pomp the body of a person who has
appealed from, and the same is hereby affirmed. Costs against been legally executed
appellant. Decision of finding of guilt and conviction is affirmed.
NOTE: Serious disturbance must be planned or intended or else
if it was slight disturbance liable for alarm.
Article 153 in relation to Articles 131 and 132 ACTS PUNISHABLE

Article 153 has reference to Arts. 131 and 132, which punish the 1. By publishing or causing to be published, by means of
same acts if committed by public officers who are not printing, lithography or any other means of
participants in the meeting or religious worship. publication, as news any false news which may
endanger the public order, or cause damage to the
Hence, if the act of disturbing or interrupting a meeting or interest or credit of the State.
religious worship is committed by a private individual, or even 2. By encouraging disobedience to the law or to the
by a public officer but he is a participant in the meeting or constituted authorities or by praising, justifying or
religious worship which he disturbs or interrupts, Art. 153, not extolling any act punished by law, by the same means
Art. 131 or Art. 132, is applicable. or by words, utterances or speeches.
3. By maliciously publishing or causing to be published
Outcry, Defintion any official resolution or document without proper
The word "outcry" in this article means to shout subversive or authority, or before they have been published
provocative words tending to stir up the people to obtain by officially.
means of force or violence any of the objects of rebellion or 4. By printing, publishing or distributing (or causing the
sedition. same) books, pamphlets, periodicals, or leaflets which
do not bear the real printer's name, or which are
In relation to inciting to sedition or rebellion classified as anonymous.
For an outcry or the displaying of emblems or placards to
constitute inciting to commit rebellion or sedition, it is necessary Actual Public Disorder or Actual Damage, Not Necessary
that the offender should have done the act with the idea It is not necessary that the publication of the false news actually
aforethought of inducing his hearers or readers to commit the caused public disorder or caused damage to the interest or
crime of rebellion or sedition. credit of the State. The mere possibility of causing such
danger or damage is sufficient.
But if the outcry is more or less unconscious outburst which,
although rebellious or seditious in nature, is not intentionally Article 155. Alarm and scandals. – The penalty of arresto
calculated to induce others to commit rebellion or sedition, it is menor or a fine not exceeding Forty thousand pesos
only public disorder. (P40,000) shall be imposed upon:
1. Any person who within any town or public
Tumultuous, Definition place, shall discharge any firearm, rocket,
The disturbance or interruption shall be deemed to be firecracker, or other explosive calculated to
tumultuous if caused by more than three persons who are cause alarm or danger;
armed or provided with means of violence. When this 2. Any person who shall instigate or take an active
happens, then the crime is qualified. part in any charivari or other disorderly meeting
offensive to another or prejudicial to public
Article 154. Unlawful use of means of publication and tranquility;
unlawful utterances. — The penalty of arresto mayor and 3. Any person who, while wandering about at
a fine ranging from Forty thousand pesos (P40,000) to night or while engaged in any other nocturnal
(P200,000) pesos shall be imposed upon: amusements, shall disturb the public peace; or
1. Any person who by means of printing, 4. Any person who, while intoxicated or otherwise,
lithography, or any other means of publication shall cause any disturbance or scandal in public
shall publish or cause to be published as news places, provided that the circumstances of the
any false news which may endanger the public case shall not make the provisions of Article 153
order, or cause damage to the interest or credit applicable.
of the State;
2. Any person who by the same means, or by Acts Punishable
words, utterances or speeches, shall encourage 1. Discharging any firearm, rocket, firecracker, or other
disobedience to the law or to the constituted explosive within any town or public place, calculated
authorities or praise, justify, or extol any act to cause (which produces) alarm or danger.
punished by law; 2. Instigating or taking an active part in any charivari or
3. Any person who shall maliciously publish or other disorderly meeting offensive to another or
cause to be published any official resolution or prejudicial to public tranquility.
document without proper authority, or before 3. Disturbing the public peace while wandering about at
they have been published officially; or night or while engaged in any other nocturnal
4. Any person who shall print, publish, or amusements.
distribute or cause to be printed, published, or 4. Causing any disturbance or scandal in public places
distributed books, pamphlets, periodicals, or while intoxicated or otherwise, provided Art. 153 is not
leaflets which do not bear the real printer's applicable.
name, or which are classified as anonymous.
“Shall discharge any firearm” Offender is Usually an Outsider

Under paragraph No. 1, the discharge of the firearm should not The offense under this article is usually committed by an
be aimed at a person; otherwise, the offense would fall under outsider who removes from jail any person therein confined or
Article 254, punishing discharge of firearm. helps him escape.
“Calculated to cause alarm or danger” It would seem that Art. 156 may also apply to an employee of
The phrase "calculated to cause alarm or danger" in paragraph the penal establishment who helps the escape of a person
No. 1 is a wrong translation of the Spanish text which reads confined therein, provided that he does not have the custody
"que produzca alarma o peligro." Hence, it is the result, not the or charge of such person. Art. 156 may also apply to a prisoner
intent, that counts. The act must produce alarm or danger as a who helps the escape of another prisoner. The offender under
consequence. Art. 156 is "any person." Which includes guard of the jail who
is off duty.
NOTE: The discharge of any firearm, rocket, etc., in one's
garden or yard located in the town is punished under Art. 155, If the offender is a public officer who had the prisoner in his
as long as it produced alarm or danger. custody or charge, he is liable for infidelity in the custody of a
prisoner under Article 223.
Charivari, Defined
The term "charivari" includes a medley of discordant voices, a Violence, Intimidation or Bribery is Not Necessary
mock serenade of discordant noises made on kettles, tins, If the accused removed from jail or penal establishment a
horns, etc., designed to annoy and insult. person confined therein or helped the latter's escape by means
of violence, intimidation, or bribery, the penalty is higher.
NOTE: If the disturbance is of a serious nature, the case will fall Hence, it is not an element of the offense.
under Art. 153, not under Par. 4 of this article. • Bribery is not the offender’s act of receiving bribe.
• Employment of deceit is not an element of offense.
The act of a person who hurled a general insult at everybody,
there being 30 persons in the hall, and challenged the owner of A Person Liable Under Article 156 can be an Accessory
the billiard hall to a fight, causing commotion and disorder so But if the crime committed by the prisoner for which he is
that the billiard game had to be stopped momentarily, confined or serving sentence is treason, murder, or parricide,
constitutes merely a violation of Art. 155, par. 4, not of Art. 153. the act of taking the place of the prisoner in the prison is that
While the billiard hall is a public place there was no serious of an accessory and he may be held liable as such, because he
public disorder caused (People v. Gangay). assists in the escape of the principal.
Article 156. Delivering prisoners from jail. - The penalty Liability of an Escaped Detainee
of arresto mayor in its maximum period to prision If the prisoner removed or whose escape is made possible by
correccional in its minimum period shall be imposed the commission of the crime of delivering prisoner from jail is a
upon any person who shall remove from any jail or penal detention prisoner, such prisoner is not criminally liable. A
establishment any person confined therein or shall help prisoner is criminally liable for leaving the penal institution only
the escape of such person, by means of violence, when there is evasion of the service of his sentence, which can
intimidation or bribery. If other means are used, the be committed only by a convict by final judgment.
penalty of arresto mayor shall be imposed.
ALBERTO v. DE LA CRUZ (1980)
If the escape of the prisoner shall take place outside of 98 SCRA 406
said establishments by taking the guards by surprise, the Facts: On or about 12th day of September 1968, in Taculod,
same penalties shall be imposed in their minimum Canaman, Camarines Sur, Eligio Orbita, being then a member
period. of the Provinicial Guard of Camarines Sur tasked to keep under
custody Pablo Denaque did then and there with great
ELEMENTS carelessness and unjustifiable negligence leave the latter
1. That there is a person confined in a jail or penal unguarded while in said barrio, thereby giving him the
establishment. opportunity to run away and escape.
2. That the offender removes therefrom such person, or
helps the escape of such person. Believing that the escape of Pablo Denaque was made possible
by the note of Gov. Cledera to Jose Esmeralda and that Cledera
Who must escape? and Esmeralda are equally guilty of the offense for which the
The person confined may be a mere detention prisoner. Of accused Eligio Orbita had been charged, the defense counsel
course, the prisoner may also be by final judgment. Even if the filed a motion in court seeking the amendment of the
prisoner is in the hospital or asylum when he is removed or information so as to include Gov. Cledera and Jose Esmeralda
when the offender helps his escape, because it is considered as as defendants therein.
an extension of the penal institution.
Judge directed the Fiscal’s office, within 15 days from date, “to CHAPTER SIX
cause the further investigation of the case, taking into EVASION OF SERVICE OF SENTENCE
consideration the provisions of Article 156 in relation to Articles
223 and 224 of the Revised Penal Code in order to determine Three Kinds of Evasion of Service of Sentence
once and for all whether the Governor as jailer of the Province 1. Evasion of service of sentence by escaping during the
and his assistant have any criminatory participation in the term of his sentence.
circumstances of Pablo Denaque’s escape from judicial custody. 2. Evasion of service of sentence on the occasion of
disorders.
On the Issue of Ordering Prosecutor to Amend Information 3. Other cases of evasion of service of sentence, by
There is no sufficient evidence in the record to show a prima violating the conditions of conditional pardon.
facie case against Gov. Cledera and Jose Esmeralda.
Article 157. Evasion of service of sentence. – The penalty
Delivery of Persons from Jail of prision correccional in its medium and maximum
The offense may be committed in two ways: (1) by removing a periods shall be imposed upon any convict who shall
person confined in any jail or penal establishment; and (2) by evade service of his sentence by escaping during the
helping such a person to escape. term of his imprisonment by reason of final judgment.
However, if such evasion or escape shall have taken place
To remove means to take away a person from the place of his by means of unlawful entry, by breaking doors,
confinement, with or without the active cooperation of the windows, gates, walls, roofs, or floors, or by using
person released. To help in the escape of a person confined in picklocks, false keys, disguise, deceit, violence or
any jail or penal institution means to furnish that person with intimidation, or through connivance with other convicts
the material means such as a file, ladder, rope, etc. which greatly or employees of the penal institution, the penalty shall
facilitate his escape. be prision correccional in its maximum period.
The offense under this article is usually committed by an ELEMENTS:

outsider who removes from jail any person therein confined or 1. That the offender is a convict by final judgment.
helps him escape. If the offender is a public officer who has 2. That he is serving his sentence which consists in
custody or charge of the prisoner, he is liable for infidelity in the deprivation of liberty.
custody of prisoner defined and penalized under Article 223 of
the Revised Penal Code. The Sentence must be “By Reason of Final Judgment”
Hence, if the convict escapes within 15 days from the
In the case: Since Gov. Cledera, as governor, is the jailer of the promulgation or notice of the judgment, without commencing
province,16 and Jose Esmeralda is the assistant provincial to serve the sentence or without expressly waiving in writing his
warden, they cannot be prosecuted for the escape of Pablo right to appeal, he is not liable under Art. 157.
Denaque under Article 156 of the Revised Penal Code.
Detention prisoners and minor delinquents who escape from
No Sufficient Evidence for Prosecution under Article 223 confinement are not liable for evasion of service of sentence.
In order to be guilty under the aforequoted provisions of the Detention prisoners are not convicts by final judgment since
Penal Code, it is necessary that the public officer had consented they are only detained pending the investigation or the trial of
to, or connived in, the escape of the prisoner under his custody the case against them. Minor delinquents confined in the
or charge. Connivance in the escape of a prisoner on the part reformatory institution are not convicts, because the sentence
of the person in charge is an essential condition. If the public is suspended.
officer charged with the duty of guarding him does not connive
with the fugitive, then he has not violated the law and is not If the accused escaped while the sentence of conviction was
guilty of the crime. under appeal, he is not liable under Art. 157, the judgment not
having become final, and this is true even if his appeal was later
In the case: For sure, no connivance in the escape of Pablo dismissed because he had escaped.
Denaque from the custody of the accused Eligio Orbita can be
deduced from the note of Gov. Cledera to Jose Esmeralda asking “By escaping during the term of his imprisonment”
for five men to work in the guest house, it is appearing that the Hence, it should be "by escaping during the term of his
notes does not mention the names of the prisoners to be brought sentence which consists in deprivation of liberty." The term
to the guest house; and that it was the accused Eligio Orbita "escape" has been defined as to "flee from; to avoid; to get out
himself who picked the men to compose the work party. of the way, as to flee to avoid arrest."
Neither is there evidence to warrant the prosecution of Cledera
and. This article punishes the public officer in whose custody or NOTE: Applicable to a penalty of destierro. Destierro is a
charge a prisoner has escaped by reason of his negligence. The deprivation of liberty, though partial, in the sense that as in the
negligence resulting in evasion is definite laxity amounting to present case, the appellant, by his sentence of destierro, was
deliberate non-performance of duty. deprived of the liberty to enter the City of Manila.
Circumstances Qualifying the Offense Article 159. Other cases of evasion of service of sentence.
1. By means of unlawful entry (this should be "by – The penalty of prision correccional in its minimum
scaling”, as meant by Spanish text). period shall be imposed upon the convict who, having
2. By breaking doors, windows, gates, walls, roofs or been granted conditional pardon by the Chief Executive,
floors; shall violate any of the conditions of such pardon.
3. By using picklocks, false keys, disguise, deceit, violence However, if the penalty remitted by the granting of such
or intimidation; or pardon be higher than six years, the convict shall then
4. Through connivance with other convicts or employees suffer the unexpired portion of his original sentence.
of the penal institution.
Nature of Conditional Pardon – It is a Contract
Article 158. Evasion of service of sentence on the occasion A conditional pardon is a contract between the Chief Executive,
of disorders, conflagration, earthquakes and other who grants the pardon, and the convict, who accepts it. Since it
calamities. – A convict, who shall evade the service of his is a contract, the pardoned convict is bound to fulfill its
sentence, by leaving the penal institution where he shall conditions and accept all its consequences, not as he chooses,
have been confined, on the occasion of disorder but according to its strict terms.
resulting from a conflagration, earthquake, explosion, or
similar catastrophe, or during a mutiny in which he has ELEMENTS
not participated, shall suffer an increase of one-fifth of 1. That the offender was a convict.
the time still remaining to be served under the original 2. That he was granted a conditional pardon by the Chief
sentence, which in no case shall exceed six months, if he Executive.
shall fail to give himself up to the authorities within 3. That he violated any of the conditions of such pardon.
forty-eight hours following the issuance of a
proclamation by the Chief Executive announcing the Two Penalties
passing away of such calamity. (a) Prision correccional minimum – if penalty does not
exceed six years.
Convicts who, under the circumstances mentioned in the (b) The unexpired portion of his original sentence – if the
preceding paragraph, shall give themselves up to the penalty remitted is higher than six years.
authorities within the above-mentioned period of 48
hours, shall be entitled to the deduction provided in NOTE: Violation of conditional pardon is a distinct crime. Yet,
Article 98. Violation of conditional pardon is not a substantive offense,
because the penalty imposed for such violation is the unexpired
ELEMENTS: portion of the punishment in the original sentence.
1. That the offender is a convict by final judgment, who
is confined in a penal institution. Offender Must be Found Guilty of Subsequent Before
2. That there is disorder, resulting from – Prosecuted Under Article 159
a. Conflagration The phrase in the condition that the offender "shall not again
b. Earthquake commit another crime" does not mean merely being charged
c. Explosion with an offense. It is necessary that he be found guilty of the
d. Similar Catastrophe offense.
e. Mutiny in which he has not participated
3. That the offender evades the service of his sentence A convict granted conditional pardon, like the petitioner herein
by leaving penal institution where he is confined, on who is recommitted, must of course be convicted by final
the occasion of such disorder or during the mutiny. judgment of a court of the subsequent crime or crimes with
4. That the offender fails to give himself up to the which he was charged before the criminal penalty for such
authorities within 48 hours following the issuance of a subsequent offense(s) can be imposed upon him.
proclamation by the Chief Executive announcing the
passing away of such calamity. Offender can be Arrested and Reincarcerated Without Trial
One who violates the condition of his pardon may be
What is punished is not the leaving of the penal institution, prosecuted and sentenced to suffer prision correccional in its
but the failure of the convict to give himself up to the minimum period under Article 159 of the Revised Penal Code,
authorities within 48 hours after the proclamation without prejudice to the authority conferred upon the President
announcing the passing away of the calamity. by Sec. 64(i) of the Revised Administrative Code to recommit
• The penalty is that the accused shall suffer an increase him to serve the unexpired portion, unless it exceeds 6 years in
of 1/5 of the time still remaining to be served under which case no penalty shall be imposed, but to serve only the
the original sentence, not to exceed six (6) months. unexpired portion.
• If he gives himself up to the authorities within 48
hours, he shall be entitled to 1/5 deduction of the NOTE: The time during which the convict was out of prison
period of his sentence. cannot be deducted from the unexecuted portion of his
sentence.
CHAPTER SEVEN Quasi-Recidivism Does Not Require that the Two Offenses
COMMISSION OF ANOTHER CRIME DURING SERVICE OF are Embraced in the Same Title of the Code
PENALTY IMPOSED FOR ANOTHER PREVIOUS OFFENSE But Art. 160 does not seem to require that the offense for which
the convict is serving sentence and the new felony committed
Article 160. Commission of another crime during service while serving sentence are embraced in the same title of the
of penalty imposed for another previous offense — Code. While in recidivism, in paragraph No. 9 of Art. 14, both
Penalty. — Besides the provisions of Rule 5 of Article 62, the first and the second offenses must be embraced in the same
any person who shall commit a felony after having been title of the Code; in quasi-recidivism, it is not so required.
convicted by final judgment, before beginning to serve
such sentence, or while serving the same, shall be Quasi-recidivism from Habituality
punished by the maximum period of the penalty The aggravating circumstance of "reiteracion" requires that the
prescribed by law for the new felony. offender against whom it is considered shall have served out
his sentences for the prior offenses. Here, all the accused were
Any convict of the class referred to in this article, who is yet serving their respective sentences at the time of the
not a habitual criminal, shall be pardoned at the age of commission of the crime of murder. The special aggravating
seventy years if he shall have already served out his circumstance of quasi-recidivism (Art. 160, R.P.C.) was correctly
original sentence, or when he shall complete it after considered against all the accused (People v. Layson).
reaching said age, unless by reason of his conduct or
other circumstances he shall not be worthy of such Quasi-Recidivism Cannot be Offset by Ordinary Mitigating
clemency. The special aggravating circumstance of quasi-recidivism
cannot be offset by any ordinary mitigating circumstance,
Quasi-Recidivism because Art. 160 specifically provides that the offender "shall
It is a special aggravating circumstance where a person, after be punished by the maximum period of the penalty prescribed
having been convicted by final judgment, shall commit a new by law for the new felony."
felony before beginning to serve such sentence, or while
serving the same. He shall be punished by the maximum period A Quasi-Recidivist May be Pardon at Age of 70
of the penalty prescribed by law for the new felony. Art. 160 provides that a quasi-recidivist shall be pardoned
when he has reached the age of 70 years and has already served
ELEMENTS out his original sentence, or when he shall complete it after
1. That the offender was already convicted by final reaching said age, unless by reason of his conduct or other
judgment of one offense. circumstances, he shall not be worthy of such clemency.
2. That he committed a new felony before beginning to • Should not be a habitual criminal or else he may not
serve such sentence or while serving the same. be pardoned.
“Before beginning to serve such sentence”

A convict by final judgment for one offense may commit a new CASES
felony before beginning to serve his sentence for the first Evasion of Service of Sentence and Quasi-Recidivism
offense, when the judgment of conviction of the lower court in
the first offense having been affirmed by the appellate court, TANEGA v. MASAKYAN (1967)
and his commitment having been ordered, he committed the 19 SCRA 565
new felony while being taken to the prison or jail. Facts: Convicted of slander by City Court of Quezon City
petitioner was found guilty again on appeal under the CFI and
“Or while serving the same” was sentence to 20 days of arrestor minor and indemnification
Hence, if the offender committed a new felony after serving the of P100.00 to the offended party Pilar B. Julio.
sentence for the first offense, and both offenses are embraced
in the same title of the Code, he is an ordinary recidivist under CFI Quezon directed that execution of sentence be set for
Art. 14, paragraph 9, of the Code, because he did not commit January 27, 1965 but was deferred to February 12, 1965, at
the new felony before or while serving the sentence for the first 8:30AM. At the appointed time, petitioner failed to show up,
offense. this prompted the judge to issue a warrant for her arrest and
petitioner was never arrested.
Second Crime Must be a Felony
Article 160 speaks of "the maximum period" of the penalty On December 10, 1966, petitioner moved to quash the warrants
prescribed by law for the new felony. The penalty prescribed by on the ground that the penalty has prescribed.
special law has no periods like the three periods of a divisible
penalty prescribed by the Revised Penal Code. Arresto menor and a fine of P100 constitute a light penalty. By
Article 92, light penalties prescribe in one year. The period of
But the first crime for which the offender is serving sentence prescription of penalties shall commence to run from the date
need not be a felony. It makes no difference, for purposes of the when the culprit should evade the service of his sentence.
effect of quasi-recidivism whether felony or special law.
Elements of Evasion of Service of Sentence Violation of Conditional Pardon

1. The offender is a convict by final judgment
2. He is serving his sentence which consists in TORRES v. GONZALES (1987)
deprivation of liberty 152 SCRA 272
3. He evades service of sentence by escaping during the Facts: Sometime before 1979, petitioner was convicted by CFI
term of the sentence. Manila of the crime of estafa (2 counts) and was sentenced to
Escape should take place while serving sentence, and indeed an aggregate prison term of 11y10m22d to 38y9m1d and pay
evasion of sentence is but another expression of the term “jail- indemnity of P127,728.75. CA affirmed these convictions.
breaking.” Prescription shall only begin to run when he escapes
from the confinement. On April 18, 1979, a conditional pardon was granted to
petitioner by the President on the condition that the petitioner
Prescription of penalty of imprisonment imposed by final would “not again violate any of the penal laws of the
sentence to commence to run, the culprit should escape during Philippines. Should this condition be violated, he will be
the term of such imprisonment. proceeded against in the manner prescribed by law.”
In the case: Adverting to the facts, we have here the case of a On May 21, 1986, the Board of Pardons and Parole resolved to
convict, sentenced to imprisonment by final judgment – was recommend to the President the cancellation of the conditional
thereafter never placed into confinement. Prescription of pardon. The evidence showed that on March 22, 1982 and June
penalty does not run in her favor. 24, 1982, petitioner had been charged with twenty counts of
estafa pending trial before RTC.
PEOPLE v. ABILONG (1948) • Also on January 14, 1986 petitioner had been
82 Phil. 172 convicted by RTC on the crime of sedition which was
Facts: Florentino Abilong was charged with evasion of service pending appeal to the IAC.
of sentence for having violated on September 17, 1947 the • NBI presented a long list of charges brought against
penalty of destierro. He was sentenced and order to serve the petitioner during last twenty years for a wide
2y4m1d of destierro during which he should not enter any place assortment of crimes.
within the radius of 100 kilometers from the City of Manila. This
was the penalty for his previous crime for attempted robbery. On September 8, 1986, the President cancelled the conditional
He went beyond the limits made against him. pardon of the petitioner.
Whether or not a person serving the sentence of destierro can On October 10, 1986, the Minister of Justice issued “by
be made liable for evasion of service of sentence. authority of the President” an Order of Arrest and
Recommitment against petitioner. He accordingly was arrested
Discussion: Yes. The Counsel for the appellant however and was confined in Muntinlupa for the unexpired portion.
contends that a person like the accused evading a sentence of
destierro is not criminally liable for Article 157 refers only to Petitioner contends the validity for he claims that he did not
persons who are imprisoned in a penal institution and violate his conditional pardon since he was convicted by final
completely deprived of their liberty. judgments and was not given the opportunity to be heard.
English and Spanish Text on Evasion of Sentence Issue

The Revised Penal Code was originally approved and enacted Whether or not conviction of a crime by final judgment
in Spanish, the Spanish text governs. It is clear that the word of a court is necessary before the petitioner can be
“imprisonment” used in english text is a wrong or erroneous validly rearrested and recommitted for violation
translation. It is clear that the Spanish text means deprivation of of the terms of his conditional pardon and
liberty. Though partial, destierro is such. accordingly serve the balance of his sentence.
Discussion: The court refers to previous rulings to shed light
In the case: Destierro does not constitute imprisonment but is on the case at hand as provided in the following.
in a way of deprivation of liberty, though partial, appellant in
this case was deprived of liberty to enter the City of Manila. Tesoro v. Director of Prisons
The determination whether there was breach of the parole rests on the
It is clear that a person under sentence of destierro is suffering judgment by the Governor-General and such decision cannot be
deprivation of his liberty and escapes from the restrictions of reviewed by the Courts. In reaching this conclusion, the Court relied
upon Section 64(i) of the Revised Administrative Code which
the penalty when he enters the prohibited area.
empowered Governor-General to authorize the arrest and
recommitment of any such person who, in his judgment, shall fail to
Held: Appellant is guilty of evasion of service of sentence under comply with the condition, or conditions of his pardon, parole or
Article 157 of the RPC (Spanish text), in that during the period suspension of the sentence as provided in such cases.
of his sentence of destierro, by virtual of final judgment wherein
he was prohibited from entering the City of Manila, he entered Sales v. Director of Prisons
the said city.
The Court held that Article 159 of the RPC as well as Section At 6:15AM of September 12, 1972, Abarca, faking illness, went to the
64(i) of the Revised Admin Code can stand together. hospital to seek admission as patient. He was accompanied by his co-
accused Dioso. Inside Ward 6 of the hospital they saw their intended
victims: Reyno was taking breakfast while Gomez was lying down on a
Breach of Conditional Pardon, Determination and Effects
wooden bed under a mosquito net. Dioso approached Reyno and
The grant of pardon and the determination of terms and Abarca went to the wooden bed. Then, both accused suddenly drew
conditions of are purely executive acts which are not subject to out their improvised knives. Abarca raised the mosquito net, and
judicial scrutiny. stabbed Gomez, almost simultaneously Dioso attacked Reyno with his
knife. After Reyno has fallen, Dioso strode to the wooden bed to finish
The determination of the occurrence of a breach of condition of a off Gomez.
pardon, and the proper consequences of such breach, may either be a • When the accused rushed out of Ward 6 they were met at
purely executive act not subject to judicial scrutiny under Section 64(i) the corridor by Prison Guard Aguilar, both gave themselves
of the Revised Penal Code. Or It may be a judicial act of consisting of up and handed weapons to him.
trial for and conviction of violation of a condition pardon under Article • Both Reyno and Gomez died of massive bleeding due to
159. multiple stab wounds on the chest and abdomen.
• Where the President opts to proceed under Section 64(i) of
the Revised Amin Code, no judicial pronouncement of guilt Whether they are considered as quasi-recidivist.
of a subsequent crime is necessary.
On Treachery
The convict has already been accorded with due process in his trial and
The trial court correctly found that the crime was perpetrated
conviction for the offense which he was conditionally pardoned. Section
64(i) of the Revised Admin is not unconstitutional and not afflicted with
with alevosia. As revealed by the accused themselves, they
such. inflicted the, fatal blows while Gomez was lying down under a
mosquito “net, and Reyno was taking his breakfast. Clearly,
In a proceeding against a convict who has been conditionally pardoned neither of the victims was in a position to defend himself from
and who is alleged to have breached the conditions of his pardon the the sudden and unexpected assault.
executive department has two options:
1. To proceed him against Section 64(i) of the Revised Admin On Quasi-Recidivism
Code or Suffice it to say that the accused are quasi-recidivist, having
2. To proceed against him under Article 159 of the RPC which
committed the crime charged while serving sentence for a prior
imposes the penalty of prison correccional minimum period,
upon a convict who, having been granted conditional pardon
offense. As such, the maximum penalty prescribed by law for
by the Chief Executive, shall violate any of the conditions of the new felony [murder] is death, regardless of the presence or
such pardon. absence of mitigating or aggravating circumstance or the
complete absence thereof.
In the case: The President has chosen to proceed against the
petitioner under Section 64(i) if the Revised Administrative On Death Sentence, Commuted
Code. That choice is an exercise of the President’s executive But for lack of the requisite votes, the Court is constrained to
prerogative and is not subject to judicial scrutiny. commute the death sentence imposed on each of the accused
to reclusion perpetua.
Held: The petitioner is hereby dismissed.
Held: ACCORDINGLY, accused Teofilo Dioso and Jacinto
Quasi-Recidivism Abarca are hereby sentenced to reclusion perpetua and to
indemnify the heirs of the deceased, jointly and severally, the
PEOPLE v. DIOSO (1984) sum of P30,000.00. Costs against appellants.
132 SCRA 616
Facts: This is a mandatory review of the death sentences by the
Circuit Criminal Court of Rizal upon Teofilo Dioso and Jacinto
Abarca for the crime of murder.
The crime was committed inside the New Bilibid Prison in Rizal,
where bot accused were serving sentence, where Abarca was
convicted of homicide and Dioso of robbery.
At the time of the incident, they were members of the “Batang

Mindanao” gang while victims Angelito Reyno and Fernando Gomez,
also prisoners, belonged to a group known as “Happy Go Lucky” gang.
Recent clash death of Balerio member of BM.
Suspecting that Reyno and Gomez had authored the slaying of their
gangmate, the two-accused set their minds to avenge his death. They
found the occasion to execute their nefarious design when they learned
that Reyno and Gomez were sick and confined to their prison hospital.
CRIMINAL LAW II Article 162. Using forged signature or counterfeit seal or

REVISED PENAL CODE stamp. – The penalty of prision mayor shall be imposed
upon any person who shall knowing make use of the
Articles 161-189 counterfeit seal or forged signature or stamp mentioned
in the preceding article.
TITLE FOUR
CRIMES AGAINST PUBLIC INTEREST ELEMENTS
1. That the Great Seal of the Republic was counterfeited,
CHAPTER ONE or the stamp of the Chief Executive was forged by
FORGERIES another person.
2. That the offender knew of the counterfeiting or
Section One. – Forging the seal of the Government of the forgery.
Philippine Islands, the signature or stamp of the Chief 3. That he used the counterfeit seal or forged signature
Executive or stamp.
Article 161. Counterfeiting the great seal of the The Offender under this Article should NOT be the Forger
Government of the Philippine Islands, forging the Otherwise, he will be penalized under Art. 161. The act is that
signature or stamp of the Chief Executive. – The penalty of an accessory, but the penalty is only one degree lower.
of reclusion temporal shall be imposed upon any person
who shall forge the Great Seal of the Government of the In using forged signature or stamp of the Chief Executive, or
Philippine Islands or the signature or stamp of the Chief forged seal, the participation of the offender is in effect that of
Executive. an accessory, and although the general rule is that he should
be punished by penalty two degrees lower, under Art. 162 he is
ACTS PUNISHED punished by a penalty only one degree lower.
9. Forging of the Great Seal of the Government of the
Section Two – Counterfeiting Coins
Philippines.
10. Forging the signature of the President. Crimes under Counterfeiting of Coins
11. Forging the stamp of the President. 1. Making and importing and uttering false coins.
2. Mutilation of coins – importation and utterance.
Great Seal of the Republic of the Philippines 3. Selling of false or mutilated coin, without connivance.
The Great Seal is circular in form, with arms consisting of
paleways of two pieces, azure and gules; a chief argent studded Article 163. Making and importing and uttering false
with three golden stars equidistant from each other; in point of coins. – Any person who makes, imports, or utters false
honor, ovoid argent over the sun rayonnant with eight minor coins, in connivance with counterfeiters or importers,
and lesser rays; in sinister base gules, the Lion Rampant of shall suffer:
Spain; in dexter base azure, the American eagle displayed 1. Prision correccional in its minimum and
proper; and surrounding the whole is a double marginal circle medium periods and a fine not to exceed Four
within which are the words "Republic of the Philippines." hundred thousand pesos (P400,000), if the
counterfeited coins be any of the coinage of the
Custody and Use of the Great Seal Philippines.
The Great Seal shall be and remain in the custody of the 2. Prision correccional in its minimum period, and
President of the Philippines, and shall be affixed to or placed a fine to exceed Two hundred pesos (P200,000)
upon all commissions signed by him, and upon such other if the counterfeited coin be currency of a
official documents and papers of the Republic of the Philippines foreign country.
as may by law be provided, or as may be required by custom
and usage in the discretion of the President of the Philippines. ELEMENTS
1. That there be false or counterfeited coins.
The Offense is NOT Falsification of Public Document 2. That the offender either made, imported or utter such
When in a Government document the signature of the coins.
President is forged, it is not called falsification. Art. 161 supplied 3. That in case of uttering such false or counterfeited
the specific provision to govern the case. The name of the crime coins, he connived with the counterfeiters or
is forging the signature of the Chief Executive. importers.
The Signature of the President Must be Forged Coin, Defined

If the Chief Executive left with his secretary a signature in blank, Coin is a piece of metal stamped with certain marks and made
and a document is written above it, the crime committed is not current at a certain value. It is usually round and has ridges of
covered by Art. 161. The one applicable is Art. 171 or Art. 172, it usually of smaller value.
it should be made to appear as official document.
When is a coin false or counterfeited? Mutilation is to diminish by ingenuous means the metal in the
A coin is false or counterfeited, if it is forged or if it is not coin. One who mutilates a coin does not do so for the sake of
authorized by the Government as legal tender, regardless of its mutilating, but to take advantage of the metal abstracted; he
intrinsic value. Counterfeiting means the imitation of a legal or appropriates a part of the metal of the coin. Hence, the coin
genuine coin. It may contain more silver than the ordinary coin. diminishes in intrinsic value. One who utters said mutilated
coin receives its legal value, much more than its intrinsic value.
There is counterfeiting when a spurious coin is made. There
must be an imitation of the peculiar design of a genuine coin. ACTS PUNISHED
(U.S. vs. Basco, 6 Phil. 110) 1. Mutilating of coins of the legal currency, with the
further requirement that there be intent to damage
Thus, if a person gave a copper cent the appearance of a silver or to defraud another.
piece, it being silver plated, and attempted to pay with it a 2. Importing or uttering such mutilated coins, with the
package of cigarettes which he bought at a store, such person further requirement that there must be connivance
is not liable for counterfeiting of coin, but for estafa under Art. with the mutilator or importer in case of uttering.
318. The coin in question is a genuine copper cent, bearing its
original design and inscription. The Coin Must be of “Legal Tender” in Mutilation
reading of the provisions under this chapter will reveal that only
Import, Definition in this article does the law require "legal tender" as an element
To import fake coins means to bring them into port. The of the offense in the case of mutilation. Note the phrases "coins
importation is complete before entry at the Customs House. of the legal currency" and "current coins" used in the law.
Utter, Defintion NOTE: The coin mutilated must be genuine and has not been
To utter is to pass counterfeited coins. It includes their delivery withdrawn from circulation. The coin must be of the legal
or the act of giving them away. A counterfeited coin is uttered currency or current coins of the Philippines. Therefore, if the
when it is paid, when the offender is caught counting the coin mutilated is legal tender of a foreign country, it is not a
counterfeited coins preparatory to the act of delivering them, crime of mutilation under the Revised Penal Code.
even though the utterer may not obtain the gain he intended.
Hence, damage to another is not necessary. Article 165. Selling of false or mutilated coin, without
connivance. – Any person who knowingly, although
Former Coins Withdrawn from Circulation May be without the connivance mentioned in the preceding
Counterfeited under Article 163 articles, shall possess false or mutilated coin with intent
Thus, a goldsmith accused of counterfeiting for making five- to utter the same, or shall actually utter such coin, shall
dollar, ten-dollar, and twenty-dollar U.S. gold coins which had suffer a penalty lower by one degree than that
been withdrawn from circulation under the Gold Reserve Act of prescribed in said articles.
1934, is liable under paragraph 3 of Article 163 of this Code.
ACTS PUNISHED
The reason for punishing the fabrication of a coin withdrawn 1. Possession of coin, counterfeited or mutilated by
from circulation is not alone the harm that may be caused to another person with intent to utter the same, knowing
the public in case it goes into circulation again, but the that it is false of mutilated.
possibility that the counterfeiter may later apply his trade to the Elements
making of coins in actual circulation. (People vs. Kong Leon, a. Possession
C.A., 48 O.G. 664). b. With intent to utter
c. Knowledge
Note: Paragraphs 1 and 2 of Art. 163 mention "coin," without
any qualifying word, such as "current." 2. Actually uttering such false or mutilated coin, knowing
the same to be false or mutilated.
Article 164. Mutilation of coins – Importation and Elements
utterance of mutilated coins. – The penalty of prision a. Actually uttering
correccional in its minimum period and a fine not to b. Knowledge
exceed Four hundred thousand pesos (P400,000) shall be
imposed upon ant person who shall mutilate coins of the Possession of or Uttering False Coin Does Not Require that
legal currency of the Philippines or import or utter the Counterfeited Coin is Legal Tender
mutilated current coins, or in connivance with the Thus, a person in possession of, with intention to put into
mutilator or importer. circulation, a false five-dollar gold coin, an imitation of the
genuine five-dollar gold coin of the United States, is liable
Mutilation, Meaning under Article 165, even if such gold coin is no longer legal tender
Mutilation" means to take off part of the metal either by filing in the United States, and much less in the Philippines. Art. 165
it or substituting it for another metal of inferior quality. does not require that the coin be of legal tender.
Constructive Possession, Included drawn by or upon authorized officers of the Philippines,

The possession prohibited in Article 165 of the Revised Penal and other representatives of value, of whatever
Code is possession in general, that is, not only actual, physical denomination, which have been or may be issued under
possession, but also constructive possession or the subjection any act of Congress.
of the thing to one's control (in pari materia). 2. By prision mayor in its maximum period and a
fine not to exceed One million pesos
Possession by the Counterfeiter, Mutilator or Importer is (P1,000,000) if the falsified or altered document
NOT treated as a Separate Offense is a circulating note issued by any banking
If the false or mutilated coins are found in the possession of the association duly authorized by law to issue the
counterfeiters, or mutilators, or importers, such possession same.
does not constitute a separate offense, but is identified with the 3. By prision mayor in its medium period and a
counterfeiting or mutilation or importation. The offense fine not to exceed One million pesos (One
punished under this article is the mere holding of the false or million pesos (P1,000,000), if the falsified or
mutilated coin with intent to utter. counterfeited document was issued by a foreign
government.
“Although Without the Connivance Mentioned in the 4. By prision mayor in its minimum period and a
Preceding Articles” fine not to exceed Four hundred thousand pesos
Actually uttering false or mutilated coin, knowing it to be false (P400,000), when the forged or altered
or mutilated, is a crime under Art. 165, even if the offender was document is a circulating note or bill issued by
not in connivance with the counterfeiter or mutilator. a foreign bank duly authorized therefor.
Knowledge of the Fact that the Coin is False Acts Punishable

A Chinese merchant was paid by purchaser of goods in the 1. Forging or falsification of treasury or bank notes or
former's store a false 50-centavo coin. He placed it in his other documents payable to bearer.
drawer. During a search by some constabulary officers, the false 2. Importation of such false or forged obligations or
coin was found in the drawer. notes.
3. Uttering of such false or forged obligations or notes
May the Chinaman be convicted of illegal in connivance with the forgers or importers.
possession of a false coin?
Forging and Falsification, How Committed
No, because Art. 165 requires three things as regards Forging is committed by giving to a treasury or bank note or
possession of false coins, namely: (1) possession; (2) intent to any instrument payable to bearer or to order the appearance of
utter; and (3) knowledge that the coin is false. The fact that the a true and genuine document; To forge an instrument is to
Chinaman received it in payment of his good and placed it in make false instrument intended to pass for the genuine one.
his drawer shows that he did not know that such coin was false
(People v. Go Po). Falsification is being committed by erasing, substituting,
counterfeiting, or altering by any means, the figures, letters,
Section Three. – Forging treasury or bank notes, words, or signs contained therein.
obligations and securities; importing and uttering false or
forged notes, obligations and securities. Importation of False or Forged Obligations or Notes
Importation of false or forged obligations or notes means to
Article 166. Forging treasury or bank notes or other bring them into the Philippines, which presupposes that the
documents payable to bearer; importing, and uttering obligations or notes are forged or falsified in a foreign country.
such false or forged notes and documents. – The forging
or falsification of treasury or bank notes or certificates Uttering False or Forged Obligations or Notes
or other obligations and securities payable to bearer and It means offering obligations or notes knowing them to be false
the importation and uttering in connivance with forgers or forged, whether such offer is accepted or not, with a
or importers of such false or forged obligations or notes, representation, by words or actions, that they are genuine and
shall be punished as follows: with an intent to defraud.
1. By reclusion temporal in its minimum period
and a fine not to exceed Two million pesos Uttering Forged Bill Must be With Connivance to Constitute
(P2,000,000), if the document which has been a Violation of Article 166
falsified, counterfeited, or altered is an By pleading guilty to the charge of having passed a P10
obligation or security in the Philippines. counterfeit bill in a store in violation of Art. 166, the accused
admitted all the material allegations of the information,
The words “obligation or security of the Philippines” including that of connivance with the authors of the forgery,
shall mean all bonds, certificates of indebtedness, which characterizes the crime defined by Art. 166 of the Revised
national bank notes, treasury notes, fractional notes, Penal Code.
certificates of deposit, bills, checks, or drafts for money,
Notes and Other Obligations and Securities That May be ELEMENTS

Forged or Falsified under Article 166 1. That there be an instrument payable to order or other
1. Treasury or bank notes document of credit not payable to bearer.
2. Certificates 2. That the offender either forged, imported or uttered
3. Other obligations and securities payable to bearer. such instrument.
3. That in case of uttering, he connived with forger or
Payable to Bearer, Meaning importer.
A bank note, certificate or obligation and security is payable to
bearer when it can be negotiated by mere delivery. A five-peso Limited to Instruments Payable to Order
bill, etc., or a winning sweepstakes ticket is payable to bearer, The counterfeiting under Art. 167 must involve an instrument
because its ownership is transferred to another by mere payable to order or other document of credit not payable to
delivery to him of such bill or ticket. bearer. The instrument is payable to order where it is drawn
payable to the order of a specified person or to him or his order.
Penalties depend on the Kind of Forged Treasury or Bank
Notes or Other Documents Reason for Punishing Forgery
There are four penalties prescribed in Art. 166, and those Forgery of currency is punished so as to maintain the integrity
penalties are respectively imposed if the document falsified, of the currency and thus insure the credit standing of the
altered or counterfeited is any of the following: government and prevent the imposition on the public and the
1. Obligation or security issued by the Government of government of worthless notes or obligations.
the Philippines.
2. Circulating note issued by any banking association Article 168. Illegal possession and use of false treasury
duly authorized by law to issue the same. or bank notes and other instrument of credit. – Unless the
3. Document issued by a foreign government. act be one of those coming under the provisions of any
4. Circulating note or bill issued by a foreign bank duly of the preceding articles, any person who shall
authorized to issue the same. knowingly use or have in his possession, with the intent
to use any of the false or falsified instruments referred
Severe than Counterfeiting Coins to in this section, shall suffer the penalty next lower in
The reason for this is that the first tends to bring such degree than that prescribed in said articles.
documents into discredit and the offense produces a lack of
confidence on the part of the holders of said documents to the ELEMENTS
prejudice of the interests of society and of the State. Moreover, 1. That any treasury or bank note or certificate or other
it is easier to forge or falsify such certificates, notes and obligation and security payable to bearer, or any
documents of credit than to make counterfeit coins, and the instrument payable to order or other document of
profit which is derived therefrom by the forger of such credit not payable to bearer is forged or falsified by
documents is greater and the incentive for the commission of another person.
such a crime more powerful. 2. That the offender knows that any of those instruments
is forged or falsified.
NOTE: The provisions of Art. 166 relative to U.S. obligations 3. That he performs any of these acts –
were repealed upon the grant of independence to the a. Using any of such forged or falsified
Philippines. It should be considered a document issued by a instruments; or
foreign government under paragraph No. 3 of Article 166. b. Possessing with intent to use any of such
forged of falsified instruments.
Money Bills issued are National Bank Notes
The P5-bills, P10-bills, P20-bills etc., issued by the Central Bank Intent to Possess is not Intent to Use
of the Philippines are national bank notes. Possession of false treasury or bank notes alone is not a criminal
offense. For it to constitute an offense under Article 168 of the
Article 167. Counterfeiting, importing, and uttering Penal Code, the possession must be with intent to use said false
instruments not payable to bearer. – Any person who treasury or bank notes.
shall forge, import, or utter, in connivance with the
forgers or importers, any instrument payable to order or How to Prove that a Bank Note is Forged
other document credit not payable to bearer shall suffer Evidence must be presented that the number which the
the penalties of prision correccional in its medium and questioned bank note bears does not check with the genuine
maximum periods and a fine not exceed One million two one issued with the same number.
hundred thousand pesos (P1,200,000).
Knowledge of the Forged Character of the Note
NOTE: It is believed that it includes such instruments or Thus, where the accused in aiding his brother to utter a
documents of credit of foreign government because the act counterfeit bank note was not aware of its counterfeit character,
punished includes that of importing, without specifying the he was not guilty of illegal possession and use of false bank
country or government issuing them. note.
A Person in Possession of Falsified Document and Who Although in fact they were genuine treasury notes of the
Makes Use of the Same is Presumed to be Material Author Philippine Government one of the digits of each of which had
of Falsification been altered and changed, the aforementioned defendants had
The rule is that if a person had in his possession a falsified succeeded in obtaining P1,700.00 from said complainant, in
document and he made use of it (uttered it), taking advantage Davao, for the avowed purpose of financing the manufacture of
of it and profiting thereby, the presumption is that he is the more counterfeit treasury notes of the Philippines.
material author of the falsification.
Issue:
This is especially true if the use or uttering of the forged Whether or not the possession of said bills constitutes a
documents was so closely connected in time with the forgery violation of Article 168 of the Revised Penal Code?
that the user or possessor may be proven to have the capacity
of committing the forgery, or to have close connection with the Discussion: Appellant maintains that being genuine treasury
forgers, and, therefore, had complicity in the forgery (People v. notes of the government, the possession thereof cannot be
Sendaydiego). illegal, the court finds no merit in this pretense.
NOTE: Mere possession of false money bills without intent to It is not disputed that a portion of the last digit 9 of Serial No.
use it to the damage of another is not a crime. F-79692619 of Exhibit C, had been erased and changed so as to
read 0 and that similar erasures and changes had been made in
Article 169. How forgery is committed. – The forgery the penultimate digit 9 in Serial No. F-79692691 of Exhibit E, in
referred to in this section may be committed by any of the last digit in Serial No. D-716326 of Exhibit G, and in the last
the following means: digit 9 of Serial No. D-716329 of Exhibit H.
1. By giving to a treasury or bank note or any
instrument payable to bearer or to order It is clear from Articles 168 and 169 of the Revised Penal Code
mentioned therein, the appearance of a true that the possession of genuine treasury notes of the Philippines
and genuine document. any of “the figures, letters, words or signs contained” in which
2. By erasing, substituting, counterfeiting, or had been erased and or altered, with knowledge of such notes,
altering by any means the figures, letters, as they were used by petitioner herein and his codefendants in
words, or sign contained therein. the manner adverted to above, is punishable under said Article
168, in relation to Article 166, subdivision (1), of RPC.
Forgery includes Falsification and Counterfeiting
With the definition given in this article, the crime of HELD: Being in accordance with the facts and the law, the
counterfeiting or forging treasury or bank notes or other decision appealed from is, accordingly, affirmed, with costs
documents payable to bearer or to order includes (1) acts of against petitioner Sergio del Rosario. It is so ordered.
counterfeiting or forging said instruments, and (2) acts of
falsification.
Section Four. – Falsification of Legislative, public,
This includes giving fake checks the appearance of true and commercial, and private documents, and wireless,
genuine documents. Another example is when, A received a telegraph and telephone messages.
treasury warrant, a check issued by the Government. It was
originally made payable to B, or his order. A wrote B's name on Five Classes of Falsification
the back of said treasury warrant as if B had indorsed it, and 1. Falsification of legislative documents.
then presented it for payment. It was paid to A. 2. Falsification of a document by a public officer,
employee, or notary public.
PD 247 penalizes defacement, mutilation, tearing, burning or 3. Falsification of a public or official, or commercial
destroying of central bank notes and coins. document by a private individual.
4. Falsification of wireless, telegraph or telephone
DEL ROSARIO v. PEOPLE (1961) messages.
Facts: Accused of counterfeiting Philippine Treasury notes, Forgery and Falsification, Distinguished
Sergio Del Rosario, Alfonso Araneta and Benedicto del Pilar The term forgery as used in Art. 169 refers to the falsification
were convicted by the CFI Davao of illegal possession of said and counterfeiting of treasury or bank notes or any instruments
forgery treasury notes. They brought the case on appeal. payable to bearer or to order.
It appears that after showing to complainant Apolinario del Falsification is the commission of any of the eight (8) acts
Rosario the Philippine one-peso bills (3) and the Philippine two mentioned in Art. 171 on legislative (only the act of making
pesos bill and inducing him to believe that the same were alteration), public or official, commercial, or private documents,
counterfeit money manufactured by them. or wireless, or telegraph messages.
Article 170. Falsification of legislative documents. - The 6. Making any alteration or intercalation in a
penalty of prision correccional in its maximum period genuine document which changes its meaning;
and a fine not exceeding One million two hundred 7. Issuing in an authenticated form a document
thousand pesos (P1,200,000) shall be imposed upon any purporting to be a copy of an original document
person who, without proper authority therefore alters when no such original exists, or including in
any bill, resolution, or ordinance enacted or approved or such a copy a statement contrary to, or different
pending approval by either House of Congress or any from, that of the genuine original; or
provincial board or municipal council. 8. Intercalating any instrument or note relative to
the issuance thereof in a protocol, registry or
ELEMENTS official book.
1. That there be a bill, resolution, ordinance enacted or
approved or pending approval by either house of the The same penalty shall be imposed upon any
Congress or any provincial board or municipal council. ecclesiastical minister who shall commit any of the
2. That the offender alters the same. offenses enumerated in the preceding paragraphs of this
3. That he has no proper authority therefor. article, with respect to any record or document of such
4. That the alteration has changed the meaning of the character that its falsification may affect the civil status
document. of persons.
The Bill, Resolution or Ordinance Must be Genuine ELEMENTS:

Note that the falsification in Article 170 is committed by altering 1. That the offender is a public officer, employee, or
a legislative document, which presupposes that the bill, notary public.
resolution, or ordinance altered must be genuine. Besides, the 2. That he takes advantage of his official position.
bill, resolution or ordinance is "enacted or approved or pending 3. That he falsifies a document by committing aby of the
approval by the National Assembly or any provincial board or following acts:
municipal council." A fabricated or simulated legislative a. Counterfeiting or imitating any handwriting,
document is not covered by Art. 170. signature or rubric.
b. Causing it to appear that persons have
Offender is Any Person participated in any act or proceeding when
Art. 170 does not require that the offender be a private they did not in fact so participate.
individual. All that the provision requires is that the offender c. Attributing to persons who have participate
has no proper authority to make the alteration. Hence, the in any act or proceeding when they did not
offender may be a private individual or a public officer. in fact so participate.
d. Making untruthful statements in a narration
The Act of Falsification in Legislative Document is Limited of acts.
to Altering It Which Changes its Meaning e. Altering true dates.
Art. 170 punishes "any person who, without proper authority f. Making any alteration or intercalation in a
therefor, alters any bill," etc. Hence, other acts of falsification, genuine document which changes its
even in legislative document, are punished either under Art. 171 meaning.
or under Art. 172. g. Issuing in authenticated form a document
purporting to be a copy of an original
Article 171. Falsification by public officer, employee or document.
notary or ecclesiastical minister. – The penalty of prision h. Intercalating any instrument or note relative
mayor and a fine not to exceed One million pesos to the issuance thereof in a protocol, registry
(P1,000,000) shall be imposed upon any public officer, or official book.
employee, or notary, who taking advantage of his 4. In case of the offender an ecclesiastical minister, the
official position, shall falsify a document by committing act of falsification is committed with to any record or
any of the following acts: document of such character that its falsification may
affect the civil status of persons.
1. Counterfeiting or imitating any handwriting or
signature or rubric; First Element. – Persons liable under Article 171
2. Causing it to appear that persons have Under this article, only public officer, employee or notary public
participated in any act or proceeding when they or ecclesiastical minister can be the offender.
did not in fact so participate;
3. Attributing to persons who have participated in The ecclesiastical minister is liable under this article if he shall
an act or proceeding statements other than commit any of the acts of falsification enumerated in this article
those in fact made by them; with respect to any record or document of such character that
4. Making untruthful statements in narration of its falsification may affect the civil status of persons.
facts;
5. Altering true dates;
Second element. – The offender takes advantage of his official Even if the document is originally a private document, if it is in
position. the official custody of the public officer or employee or if it
forms part of the official record when it is falsified by the public
The offender takes advantage of his official position in falsifying officer or employee, then the crime committed should be
a document when (1) he has the duty to make or to prepare or punished under Art. 171.
otherwise to intervene in the preparation of the document; or (2)
he has the official custody of the document which he falsifies. DIFFERENT MODES OF FALSIFYING DOCUMENT
Any of the eight (8) acts of falsification enumerated in Art. 171
Thus, a court a court stenographer who deliberately and may be committed on any document by a public officer or
maliciously changed, in making transcription of his notes, the notary public — only that if the offender is a private individual
statements of a witness taken by him is guilty of falsification or a public officer who does not take advantage of his official
under this article; while any other officer, say a chief of police, position, Art. 172 shall apply.
who happened to make the same changes or alterations in the
same document, is guilty of falsification of a public document 1. Counterfeiting or imitating (feigning) any
by a private person under Article 172, par. 1. handwriting, signature or rubric.
Third element. – The offender falsifies a document. Two Ways of Committing Falsification under Paragraph 1
A document is any written statement by which a right is 1. Counterfeiting, which is imitating any handwriting,
established, or an obligation extinguished or instrument by signature or rubric.
which a fact may be proven and affirmed. 2. Feigning, which is simulating a signature, handwriting
our rubric out of one which does not in fact exist.
Thus, if the payroll is merely a draft, because it has not been
approved by the proper authority, it can prove nothing and Under paragraph 1 of Art. 171, the mere drawing up of a false
affirm nothing. (People vs. Camacho, 44 Phil. 488) document is not sufficient to constitute the crime of
falsification. The signature, handwriting or mark of another
The document must be of legal efficacy. Thus, making a writing person must be signed or made by the offender, without
which is invalid and of its face, is not falsification. authority to do so.
Must there be a genuine document in falsification? In counterfeiting, there is an original signature or handwriting
In falsification by (1) making alteration or intercalation, or (2) which is imitated. An imitation is necessary, but it need not be
including in a copy a different statement, there must be a perfect.
genuine document that is falsified.
Requisites of Counterfeiting
Thus, in paragraphs 6, 7, in its second part, and 8 of Art. 171, Imitation of another's signature need not be perfect. It is
the law requires that there be a genuine document where necessary only:
the intercalation or alteration is made changing its meaning. (1) That there be an intent to imitate, or an attempt to
imitate,
In the other paragraphs of Art. 171, falsification may be (2) That the two signatures or handwritings, the genuine
committed by simulating or fabricating a document. and the forged, bear some resemblance to each other.
Documents May be Simulated or Fabricated There Must be an Intent or Attempt to Imitate

In falsification of a public document, the falsification need not The attempt or the intent to imitate may be shown by a
be made on an official form. It is sufficient that the document is comparison of the handwriting or signature on the document
given the appearance of, or made to appear like, the official alleged to have been falsified with the genuine handwriting or
form. signature supposed to have been counterfeited. If there is
sufficient resemblance between the genuine and the forged
The simulation of public, official or mercantile document is also signatures, it can be concluded that the accused had the
contemplated in falsification of those documents. intention and attempted to imitate the signature of the
offended party.
“Shall falsify a document.”
It will be noted that Article 171 does not specify the kind of The Genuine and Forged Must Bear Resemblance
document falsified, the phrase “shall falsify a document” not The resemblance must be such that it is likely to deceive an
mentioning whether it is public, official, private or commercial ordinary person receiving or dealing with the document.
document.
Thus, it has been held that the fact of imitating a person's
It is not necessary to specify in Art. 171 the document falsified, signature on a check in such a way that the same, when
because when the document is executed with the intervention presented for collection "might have passed in the rush of
of a public officer, employee or notary public, such document business," although the handwriting is a little bit different,
must necessarily be a public or official document. constitutes falsification (US v. Litonjua).
Q. What if the requisites of counterfeiting not present? 4. Making untruthful statements in narration of facts.
If there is no attempt whatsoever by the accused to imitate the
signatures of other persons so that they are entirely unlike the REQUISITES
genuine signatures of those persons, the accused may be found 1. That the offender makes in a document statements in
guilty under paragraph 2, Art. 171, in causing it to appear that a narration of facts;
those persons have participated in the act when they did not in 2. That he has legal obligation to disclose the truth of the
fact so participate. facts narrated by him;
3. That the facts narrated by the offender are absolutely
Feigning (Imitating) false; and
In feigning, there is no original signature, handwriting or rubric, 4. That the perversion of truth in the narration of facts
but a forgery of a signature, handwriting or rubric that does not was made with the wrongful intent of injuring a third
exist. To feign means to represent by a false appearance; to person.
give a mental existence to; to imagine.
There Must be Narration of Facts, Not Conclusion of Law
2. Causing it to appear that persons have participated PEOPLE v. YANZA (1960). When the accused certified she was
in an act or proceeding. eligible for the position, she practically wrote a conclusion of
NOTE: The imitation of the signature of the offender party is not law which turned out to be inexact or erroneous but not entirely
necessary in falsification under paragraph 2 of Article 171. groundless; hence, she may not be declared guilty of
falsification, especially because the law which she has allegedly
REQUISITES: violated (Art. 171, Rev. Penal Code), punishes the making of
1. That the offender caused it to appear in a document untruthful statements in a narration of facts.
that a person or persons participated in an act or
proceeding. Had she stated that she was born on March 29, 1931, she would
2. That such person or persons did not in fact participate undoubtedly have been guilty of falsification, because the date
in the act or proceeding. of her birth was a matter of fact. But when she declared that she
was "eligible," she merely expressed the belief that she had met
When Committed by Private Individual, Article 172 applied. the requirement. Unfortunately, she made a mistake of
The act of falsely impersonating the owner of a piece of land as judgment; but she could not be held to have intentionally made
vendor in the forged deed of sale would constitute an act of a false statement of fact in violation of Art. 171.
falsification under paragraph 2 of Art. 171 and may also be
punishable under Article 172 (Emas v. De Zuzuarregui). Legal Obligation Means that There is a Law Requiring the
Disclosure of the Facts Narrated
The placing by the accused of their thumbmarks in the list of RAMIREZ v. COURT OF APPEALS (71 SCRA 231). The promulgation of
voters opposite the names of the electors who have not actually Central Bank Circular 133 abolishing the requirement of specific
voted, thereby making it appear that those electors cast their licensing under Central Bank Circular No. 20 wiped away the
votes when they did not in fact vote, is falsification under legal obligation of the applicants for foreign exchange to
paragraph 2 of Art. 171, and the offenders who are private disclose the truth of the facts narrated in the documents
individuals are liable under Art. 172 (People v. Asa). supporting their application.
3. Attributing to persons who have participated in any As there is no more legal obligation to disclose such truth, an
act or proceeding statements other than those in fact untruthful statement therein no longer constitutes the crime of
made by them. falsification perpetrated by making false statements in a
narration of facts.
REQUISITES
1. That a person or persons participated in an act or The Person Making the Narration of Facts Must be Aware
proceeding. of the Falsity of the Facts Narrated by Him
2. That such person or persons made statement in that US v. GONZAGA (14 Phil. 562). Thus, a municipal treasurer who paid
act or proceeding; and the specified amount in B's voucher, presented by C for
3. That the offender in making a document, attributed to payment, and later made statement in his accounts current with
such person or persons statements other than those the government that the money had been paid to B, not
in fact made by such person or persons. knowing that the signature of B was forged and, therefore, the
municipal treasurer had no knowledge of the falsity of his
US v. Capule. The defendant executed upon said notarial document of an statement in his account current, is not liable for falsification by
official character, acts constituting falsification, by counterfeiting therein the making untruthful statements in a narration of facts.
intervention of the owners of the land, to whom he ascribed statements different
from what they had made to him and by perverting the truth in the narration of
facts, getting persons to sign in the name of the owners of the land, through NOTE: The rule is that if the statements are not altogether false,
deceit, after giving them to understand that the document contained a power of there being some colorable truth in such statements, the crime
attorney, when in fact it was a deed of sale of the land, the legitimate owners of falsification is not deemed to have been committed. (Cabigas
whereof had never intended or consented to its alienation.
v. People, 152 SCRA 18).
NOTE: Legal obligation to disclose truth inherent in residency People v. Manansala. (105 Phil, 1253). The accused was arrested for
certificate (People v. Po Giok To). having in his possession a falsified duplicate copy of Traffic Violation
Report previously issued to him as temporary driver's permit. The
The Perversion of Truth in the Narration of Facts Must be alterations were found to consist in erasing or obliterating the originally
written figure "III" and the word "three" after the words "pending cases"
Made with the Wrongful Intent of Injuring of Third Person
and by writing and superimposing thereon number "I" and the word
PEOPLE v. ARCA. The erroneous narration of facts found in said
"one." The accused made such alterations to hide his previously
minutes, therefore, as to the presence of appellant Leonardo T. pending traffic violation cases and thereby avoid immediate arrest
Area in the organization-meeting therein described is not an should he be caught committing a fourth traffic violation.
essential part of the notice and does not affect the integrity of
said minutes as a notice. HELD: The accused is guilty of falsification of an official document, by
making alterations on a genuine document which changed its meaning.
NOTE: Wrongful intent not essential when the document
falsified is a public document. Alteration Which Speaks the Truth is Not Falsification
US v. MATEO, 25 Phil. 324. The defendant did not commit any crime
There is No Falsification by One Who Acted in Good Faith in changing his age. He simply made the cedula speak the truth.
The statement in the affidavit that the affiant was the owner of It was a correction, not falsification. Generally, the word
a banca which he had raised from the bottom of the estero by alteration has inherent in it the idea of deception — of making
virtue of a contract with the municipality and that it remained the instrument speak something which the parties did not
unclaimed, is not falsification because he believed that he was intend it to speak. To be an alteration in violation of the law, it
entitled to its ownership (US v. San Jose, 7 Phil. 604). must be one "which causes the instrument to speak a language
different in legal effect from that which it originally spoke.
Falsification by Omission
PEOPLE v. DIZON 47 Phil. 350. An assistant bookkeeper of the post
Alteration Must Affect the Integrity or Change the Effects
exchange at Fort Stotsenberg who, having bought several of the Document
articles in the post exchange for which he signed several chits, The change in the public document must be such as to affect
intentionally did not record in his personal account most of the the integrity of the' same or to change the effects which it
said chits and destroyed them so that he could avoid paying would otherwise produce; for, unless that happens, there could
the amount thereof, is guilty of falsification by omission. not exist the essential element of the intention to commit the
crime (People v. Pacana).
5. Altering true dates
Altering the Grades in Examination Papers Involves Several
Date Must be Essential Acts of Falsification
There is falsification under this paragraph only when the date PEOPLE v. ROMUALDEZ, 57 Phil. 151. On the composition of a bar
mentioned in the document is essential. The alteration of the candidate, the grades 73% in Civil Law and 64% in Remedial
date or dates in a document must affect either the veracity of Law were written by an employee of the Supreme Court, after
the document or the effects thereof. The dates of birth, marriage striking out the grade of 63% theretofore given to the
and death are essential, because without them the documents composition in Civil Law and 58% theretofore given to the
“cannot produce any legal effect.” composition in Remedial Law.
Altering Dates in Official Receipts to Prevent the Discovery The acts of falsification are: (1) making alterations on genuine
of Malversation is Falsification documents, (2) making it appear that the correctors had
PEOPLE v. BELGICA. The accused is guilty of falsification. It is true participated in blotting out the grades and writing new and
that if the alteration of a date does not affect the integrity of increased grades opposite their initials, and (3) attributing to
the document, it does not constitute the crime of falsification, the correctors statements other than those in fact made by
but the rule has no application when the act is committed, not them.
by ignorance or mistake but rather to prevent the discovery of
an illegal appropriation of public funds. 7. Issuing in authenticated form a document purporting
to be a copy of an original document when no such
6. Making alteration or intercalation in a genuine original exists, or including in such a copy a statement
document which changes its meaning. contrary to, or different, that of the genuine original.
REQUISITES NOTE: Such acts of falsification can be committed only by a

1. That there be an alteration (change) or intercalation public officer or notary public who takes advantage of his
(insertion) on a document; official position, since the authentication of a document can be
2. That is was made on a genuine document; made only by the custodian or the one who prepared and
3. Alteration or intercalation changed meaning of retained a copy of the original document. This cannot be
document; and committed by a private individual or by a notary public or a
4. That the change made the document speak public officer who does not take advantage of his position.
something false.
Acts Included in Article 171 (7) on Authenticated Document Article 172(1). Falsification of public, official, or
1. Purporting to be a copy of an original when no such commercial document by private individual.
original exists.
2. Including in a copy a statement contrary to, or ELEMENTS
different from that of the genuine original. 1. That the offender is a private individual or a public
officer or employee who did not take advantage of his
CONSPIRACY BY A PRIVATE INDIVIDUAL: A private person who official position.
cooperates with a public officer in the falsification of a public 2. That he committed any of the acts of falsification
document is guilty of this crime and incurs the same liability enumerated in Article 171.
and penalty as the public officer. 3. That the falsification was committed in a public or
official or commercial document.
Intent to Gain or Prejudice Not Necessary
It will be noted that in Art. 171, it is the official character of the NOTE: Article 171(7) on authentication of a document can be
offender which is mainly taken into consideration. made only by the custodian or the one prepared, thus cannot
be committed by a private individual, unless in conspiracy.
The idea of gain or the intent to cause damage to a third person
is not necessary, because it is the interest of the community FOUR KINDS OF DOCUMENTS
which is intended to be guaranteed by the strictest faithfulness 1. Public Document
of the officials charged with the preparation and preservation It is a document created, executed or issued by a public official
of the acts in which they intervene. in response to the exigencies of the public service, or in the
execution of which a public official intervened. A public
8. Intercalating any instrument or note relative to the document is any instrument authorized by a notary public or a
issuance thereof in a protocol, registry of official book. competent public official, with the solemnities required by law.
NOTE: This is the eight form of falsification that is penalized 2. Official Document
under Article 171 on falsification by public officer, employee, It is a document which is issued by a public official in the
notary public or ecclesiastical minister. exercise of the functions of his office. An official document is
also a public document. It falls within the larger class called
Article 172. Falsification by private individual and use of public documents. All pleadings filed with the court are public
falsified documents. – The penalty of prision correccional or official documents.
in its medium and maximum periods and a fine not more
than One million pesos (P1,000,000) shall be imposed 3. Private Document
upon: It is a deed or instrument executed by a private person without
1. Any private individual who shall commit any of the intervention of a notary public or other person legally
the falsifications enumerated in the next authorized, by which document some disposition or agreement
preceding article in any public or official is proved, evidenced or set forth (e.g. theatre ticket).
document or letter of exchange or any other
kind of commercial document; 4. Commercial Document
2. Any person who, to the damage of a third party, Any document defined and regulated by the Code of
or with the intent to cause such damage, shall in Commerce or any other commercial law. Commercial
any private document commit any of the acts of documents are documents or instruments used by merchants
falsification enumerated in the next preceding or businessmen to promote or facilitate trade.
article; and
3. Any person who shall knowingly introduce in Private Document Considered Public Document
evidence in any judicial proceeding or to the 1. A deed acknowledged before a notary public is a
damage of another or who, with the intent to public document, and in a criminal prosecution for
cause such damage, shall use any of the false falsification of document, the fact that the falsification
documents embraced in the next preceding was committed before the document was presented
article, or in any of the foregoing subdivisions to the notary does not alter the character of the crime
of this article, shall be punished by the penalty as falsification of public document,
next lower in degree.
Even if the document was presented to the notary by
Three Acts Punished Under Article 172 the party who committed the falsification, or at his
1. Falsification of public, official, or commercial instance.
document by private individual. (Paragraph No. 1)
2. Falsification of a private document by any person. 2. A private document may acquire the character of a
(Paragraph No. 2) public document when it becomes part of an official
3. Use of falsified document (Last paragraph) record and is certified by a public officer duly
authorized by law.
Mere Blank Form of an Official Document is Not Document Article 172(2). Falsification of a private document by
PEOPLE v. SANTIAGO. In order that a blank form might come within any person.
the purview of Articles 166, 167, 171 or 172 of the Code, it is
necessary that the blank spaces be filled and the signature of a ELEMENTS
party purported to be authorized to issue it be written by 1. That the offender committed any of the acts of
another in the counterfeited instrument. falsification, except Article 171(7).
2. That the falsification was committed in any private
The Possessor of a Falsified Document is Presumed to be document.
the Author of the Falsification 3. That the falsification caused damage to a third party
PEOPLE v. MANANSALA, 105 Phil. 1253. It is an established rule that or least the falsification was committed with intent to
when a person has in his possession a falsified document and cause such damage.
makes use of the same, the presumption or inference is justified
that such person is the forger. Mere Falsification of Private Documents is Not Enough
US v. PARAISO, 1 Phil. 127. If an individual falsified a receipt by
The circumstances, therefore, that the accused made use and counterfeiting the signature of the creditor thereon and, after
benefited from the falsified TVR is a strong evidence that he keeping it in his house for some time, without delivering or
himself either falsified it or caused the same to be falsified. The showing it to anyone, destroyed it, he did not prejudiced anyone
accused had a sufficient and strong motive to commit the by the mere fact of having made it.
falsification, because the policy and practice of the Manila
Police Department was to arrest a driver who had committed a Therefore, two things are required:
fourth traffic violation instead of merely issuing to him a TVR, 1. He must have counterfeited the false document
as usually done for the first, second and third violations. 2. He must have performed an independent act which
operates the prejudice of a third person.
Hence, the accused had the strongest temptation to erase the
three violations in the TVR in question and make it appear With intent to cause damage means that the offender
thereon that he committed only one violation to escape arrest performs some other independent act to make use of it — an
in case of a fourth traffic infraction. act which, while it does not result in prejudice to a third party,
has been done nevertheless with the intention of causing such
Under Article 172(1), Damage or Intent to Cause prejudice.
Damage is Not Necessary
Note that in paragraph 1 of Art. 172, as in Art. 171, damage or Damage Need Not Be Material
intent to cause damage to another is not necessary. PEOPLE v. MARASIGAN (1940). The "perjuicio" caused to another in
falsification of private document need not be material. The law
In the falsification of public or official documents, whether by does not make any distinction between "perjuicio" and "dano."
public officials or by private persons, it is not necessary that Damage to one's honor is included.
there be present the idea of gain or the intent to cause damage
to a third person, for the reason that, in contradistinction to It is Not Necessary that the Offender Profited or Hoped to
private documents, the principal thing punished is the Profit by the Falsification
violation of the public faith and the destruction of the truth US v. INFANTE, 36 Phil. 146. Thus, although one of the offenders did
as therein solemnly proclaimed. not personally profit from the falsification of the private
document, he was liable, as all that the law requires is an intent
The existence of a wrongful intent to injure a third person is not to prejudice another person.
necessary when the falsified document is a public document.
(Siquian vs. People, 171 SCRA 223) Falsification as a Necessary Means to Commit Other Crimes
When the offender commits on a document any of the acts of
NOTE: This statement applies as well to commercial falsification enumerated in Art. 171 as a necessary means to
documents, because as to this kind of document, a credit is commit another crime, like estafa, theft or malversation, the two
sought to be protected. crimes form a complex crime under Art. 48.
Lack of Malice of Criminal Intent is a Defense in Falsification However, the document falsified must be public, official or
of Public Document commercial. (Damage or intent to cause damage not element).
PEOPLE v. UNICO. While it is true that falsification of a public
document does not require as an essential element, damage to The falsification of a public, official or commercial document
a third person or intent to cause such damage, signing the may be a means of committing estafa, because before the
name of a deceased heir in a deed of sale of a piece of land falsified document is actually utilized to defraud another, the
owned in common by several heirs, having been done by the crime of falsification has already been consummated,
accused with the authority of the children of the deceased heir, damage or intent to cause damage not being an element of the
is not a punishable act of falsification, the accused not having crime of falsification of public, official or commercial document.
acted with malice.
In other words, the crime of falsification has already existed. There is No Crime of Estafa through
Actually, utilizing that falsified public, official or commercial Falsification of a Private Document
document to defraud another is estafa. But the damage to There is no complex crime of estafa through falsification of a
another is caused by the commission of estafa, not by the private document, because the immediate effect of falsification
falsification of the document, Therefore, the falsification of the of private document is the same as that of estafa. The falsification
public, official or commercial document is only a necessary of a private document cannot be said to be a means to commit
means to commit the estafa. estafa, because the fraudulent gain obtained through deceit in
estafa, in the commission of which a private document was
Falsification of a private document as means falsified, is nothing more nor less than the very damage caused
On the other hand, in the falsification of a private document, by the falsification of such document.
there is no crime unless another fact, independent of that of
falsifying the document, is proved: i.e., damage or intent to NOTE: If a private document is falsified to obtain from the
cause it. offended party the money or other personal property which the
offender later misappropriated, the crime committed is
Therefore, when one makes use of a private document, which he falsification of private document only.
falsified, to defraud another, there results only one crime: that
of falsification of a private document. Falsification of Private Documents used to Conceal the
Crime of Estafa; The Crime Committed is Estafa with Abuse
The damage to another is caused by the commission of the of Confidence Only
crime of falsification of private document. The intent to If the estafa was already consummated at the time of the
defraud in using the falsified private document is part and falsification of the private document, or if the falsification of a
parcel of the crime, and cannot give rise to the crime of private document was committed for the purpose of concealing
estafa, because the damage, if it resulted, was caused by, and the estafa, the falsification is not punishable, because as regards
became the element of, the crime of falsification of private the falsification of the private document, there was no damage
document. The crime of estafa in such case was not or intent to cause damage. The limited damage that resulted
committed, as it could not exist without its own element of was caused by the commission of estafa, not by the falsification
damage following the Doctrine of Common Element. of the private document.
Estafa Through Falsification of Public Document Falsification through Reckless Imprudence

MILLA v. PEOPLE (2012), Milla represented himself to have the PEOPLE v. BANAS (1955). The director of a hospital who, having a
authority to sell the subject property, and it was precisely this contract with the Philippine Veterans Board, for the cure and
misrepresentation that prompted MPI to purchase it. Because hospitalization of sick veterans at the rate of P10 a day per
of its reliance on his authority and on the falsified Deed of patient, signed a bill wherein it appeared that a patient was
Absolute Sale and TCT No. 218777, MPI parted with its money hospitalized for 31 days when said patient was confined there
in the amount of P2 million, which has not been returned. for only 6 days and collected P310, relying entirely upon his
Clearly, Milla is guilty of estafa through falsification of public personnel's reports, without in any way checking them or
documents. having someone check them for him is guilty of falsification
through reckless imprudence.
Qualified Theft Through Falsification of
Commercial Document Falsification Through Reckless Imprudence; Not Applicable
PEOPLE v. SALONGA (2001). The accused took P36,480 with grave in Private Documents
abuse of confidence by forging the signature of officers Since in falsification of a private document, there is at least
authorized to sign the subject check and depositing the check intent to cause damage, that is, there must be malice, and
to a fictitious payee. The fact that accused as assistant Cashier falsification through imprudence implies lack of such intent or
of Metrobank had custody of the aforesaid checks and had malice, there is no such crime as falsification of a private
access not only in the preparation but also release of such document through negligence or reckless imprudence.
checks designates it as qualified theft. The falsification of the
signatures was sued a means to commit the crime. Thus, The Crime of Falsification of a Public Document, Even if The
accused is guilty of the crime of qualified theft through Falsification Took Place Before the Private Document
falsification of the commercial document. Becomes Part of the Public Records
Although the minutes meeting was a private document when it
Malversation through Falsification of Public Document was certified and attested, nevertheless, it became a public
A special deputy of the provincial treasurer, an accountable document upon its filing with the Department of Labor. It
public officer, who altered the duplicates of cedulas, collected seems that if the document is intended by law to be part of the
the sum of P2.00 from each of the taxpayers to whom they were public or official record, the preparation of which being in
issued, and misappropriated the money collected, a public accordance with the rules and regulations issued by the
fund, was held liable for the complex crime of malversation Government, the falsification of that document, although it was
through falsification of the duplicates of cedulas, which are a private document at the time of its falsification, is regarded as
public documents (US v. Barbas). falsification of a public or official document.
Difference Between Falsification of Public or Official Use of Falsified Document in Proceeding Not Judicial,
Documents and that of Private Documents Requires at Least Intent to Cause Damage
The essential difference between falsification of private When a falsified document is used in proceeding other than
documents and that of public or official documents lies in the judicial, damage or, at least, intent to cause damage is essential.
fact that while in the former, the prejudice to a third party is
primarily taken into account so that if such damage is not NOTE: The person who used the falsified document is not the
apparent, or there is at least no intention to cause it, the one who falsified the document. If the one who used the
falsification is not punishable; in the latter, that is, in the falsified document is the same person who falsified it, the crime
falsification of public or official documents, the principal thing is only falsification and the use of the same is not a separate
punished is the violation of public faith and the perversion of crime.
truth which the document solemnly proclaims, and for this
reason it is immaterial whether or not some prejudice has been When is User Deemed Author
caused to third persons. The user of the falsified document is deemed author of the
falsification if:
Generally, Falsification has No Attempted or 1. The use was so closely connected in time with the
Frustrated Stage falsification, and
Falsification is consummated the moment the genuine 2. The user had the capacity of falsifying the document.
document is altered or the moment the false document is
executed. It is immaterial that the offender did not achieve his US v. Castillo. 6 Phil. 453. Thus, in a case where the blank form,
objectives. There may be frustrated crime of falsification, if the wherein the falsified check was written, was stolen from a book of blank
falsification is imperfect. checks between 12 noon on December 1, 1903, and 11 a.m. of the
following day, when the check was presented by the accused for
payment, and the accused, who was a clerk in the office of the person
Article 172(3). Use of falsified document.
by whom the check was purported to be drawn, was alone in the office
on the evening of December 1, it was held that as the uttering of the
ELEMENTS OF USE OF FALSIFIED DOCUMENT check was so closely connected in time with the forging, the accused
should be considered the forger thereof. He was guilty of falsification
Introducing in a judicial proceeding
of commercial document, not merely of using a falsified document.
1. That the offender knew that a document was falsified
by another person.
2. That the false document is embraced in Article 171 or
CASES UNDER FALSIFICATION
in Article 172 (1) or (2).
3. That he introduced said instrument in evidence in any SIQUIAN v PEOPLE (1989)
judicial proceeding. 171 SCRA 223
Facts: There is an information charging petitioner Manuel L.
Use in any other transaction
Siquian, the then municipal mayor of Angadanan, Isabela of the
1. That the offender knew that a document was falsified
crime of falsification of public document under Article 171(4).
by another person.
Upon arraignment the petitioner pleaded not guilty.
2. That the false document is embraced in Article 171 or
in Article 172 (1) or (2) Sometime in June 1975, Jesusa Carreon, 20 years old, single
3. That he used such document (not in judicial and a resident of Ilagan, Isabela, went to the accused Siquian,
proceedings) Mayor of the Municipality of Angadanan, Province of Isabela,
4. That the use of the false document caused damage to to apply for employment for the officer of the Mayor. She was
another or at least it was used with intent to cause such informed that there was vacancy, thus she went to see the
damage. accused in his house.
Damage is Not Necessary in Introducing in Judicial The accused must have agreed to appoint her because he
Proceeding a False Document accompanied her to the office of the Municipal Secretary, Emilio
Damage to another is not indispensable nor does it have to Valenzuela. The latter, however, was not there. Even so, the
concur with the very act of introducing a falsified document in accused told Jesusa Carreon to report for work the following
judicial proceeding. The phrase "or to the damage of another day and that she should be included in the budget. The accused
or who, with the intent to cause such damage," refers to the use then acompanied her to the Office of the Municipal Treasurer,
of the false document in a proceeding not judicial. Calo Battung. The Treasurer agreed that she could report for
work.
In the crime of introducing a falsified document in a judicial
proceeding, as defined and penalized under the last paragraph She was appointed clerk to the Municipal Secretary.
of Article 172 of the Revised Penal Code, the element of Accompanying her appointment is the certification of the
damage to another is not indispensable nor does it have to availability of funds issued by Mayor Siquian. Jesusa Carreon
concur with the very act of introduction of the falsified took her oath of office and worked.
document in the judicial proceeding.
Her monthly salary was P120,000. She rendered services from 4. The existence of a wrongful intent to injure a third
August to December 1975. She was not paid. As early as person is necessary
November 1975, she went to see the accused, but the latter told [Not necessary in public documents]
her to see the treasurer. The treasurer told her that there was
no money. Because of this she went to SP at the Provincial IN THE CASE: All these requisites had been fully met in the case
Capitol in Ilagan, Isabela, to ask information about her unpaid at bar. Petitioner, a public officer, being then the mayor of the
salaries. She was interviewed by Atty. Efren Ambrosio, Provincial municipality of Angadanan, made an untruthful statement in the
Administrator. Embrosio asked her if she had complete narration of facts contained in the certification which he issued
appointment papers. Thereafter, she filed her verified in connection with the appointment of complainant Jesusa
complaint on April 20, 1976, against the accused. Carreon. The certification having been issued by the public
official in exercise of the function of his office is a public
Her complaint was addressed to Gov. Dy. It also appears in the document.
evidence that the Municipal Council of Angadanan, Isabela
failed to enact the annual budget for the fiscal year 1975- CIVIL SERVICE COMMISSIONER CONTENTION: It is immaterial whether
1976 subject to automatic re-enactment. Thus, the Municipal or not the Civil Service Commissioner to whom the certification
Plantilla of Personnel is the same. No supplemental budget was was addressed received the document issued by petitioner.
enacted by the council. Since the certification was prepared by petitioner in accordance
with the standard forms prescribed by the government
In the Plantilla of Personnel for 1974-1975, which was deemed (specifically the Civil Service pursuant to law, the certification
reenacted, there was no new item or appropriation for the was invested with the character of a public document.
position of clerk in the Office of the Municipal Secretary of
Angadanan, Isabela. The new position of clerk in the office of Falsification of such document was committed when the
the Municipal Council appearing in the Municipal Plantilla for petitioner stated that funds were available for the position
Personnel was already filled up as early as October 1974, by the to which Jesusa Carreon was appointed when he knew that,
accused when it was filled by Clarita G. Ramirez. With respect in reality, the position itself did not even exist and no funds had
to the new position it was already filled up by Tallod. been appropriated therefor.
After trial, the Court found the petitioner guilty beyond Narration of Facts and Conclusion of Law
reasonable doubt of the crime charged. CA affirmed the Petitioner’s stance argues that what was written in the
decision of the trial. certification is more of a conclusion of law rather than a
narration of facts. This contention is not meritorious.
On petition to the Supreme Court, the petitioner raises the
following arguments for reversal of the decision. Conclusion of Law is defined as a proposition not arrived at by
a. There is no evidence on record which consists of the any process of natural reasoning from a fact or combination of
testimony of the prosecution’s principal witness, shows the facts stated but by the application of the artificial rules of law
absence of criminal intent on the part of the accused. to the facts pleaded.
b. There is no evidence that the Mayor took advantage of his
position when he made the allegedly falsified certification.
c. The statement that “funds for the position are available” is
IN THE CASE: From the above-cited definition, it can be deduced
not a narration of facts but a conclusion of law. that the certification by the appellant that “funds for the
d. The petitioner was deprived of due process when the trial position are available” does not require the application of the
court proceed the trial in his absence. artificial rules of law.
RULE: The petitioner’s arguments are bereft of merit. To certify that funds are available for the position what one
should do was to refer to the budget and plantilla of personnel of
Article 171(4): Making Untruthful Statements the applicable fiscal year and ascertain if such item exists and
In a Narration of Fact funds are allocated therefor.
The offense of falsification by a public officer under Article 171
of RPC is committed by any public officer, employee, or notary Despite the presence of the records which shows that there is
public who taking advantage of his official position shall falsify no position and funds therefor referred to in the certification,
a document by committing of making untruthful statements in the appellant, fully aware of the data provided by the records,
a narration of fact. certified falsely that “funds for the position are available.”
Requisites of the Fourth Kind of Falsification Statement is Utterly False

1. That the offender makes in a document untruthful Accordingly, there is no appropriation made in the Annual
statements in a narration of facts; Budget for the Fiscal Year 1974-1975 for such position, thus
2. That he has legal obligation to disclose the truth of rendering petitioner’s statement in his certification utterly false.
the facts narrated by him; The requisite of absolute falsity of the statement made in the
3. That the facts narrated by the offender are absolutely document is met when there exists not even an iota of colorable
false. truth in what is declared in the narration of facts.
Petitioner has Legal Obligation After the mortgage expired and the mortgage having not
As required by the Guidelines issued by the Civil Service having paid, the bank foreclosed the said mortgage and the
Commission, there is a need of certification of the availability of land was sold to Serafica and Quinto who were a TCT for said
funds for the position to be filled up is required to be signed by property. In January 1972, complainant allegedly discovered
the head of office or any officer who has been delegated the that their property was already registered under Serafica, when
authority to sign. As an officer authorized by law to issue this Serafica filed an action for ejectment of Carrera.
certification as Civil Service Form No. 203, as revised which
gives him the legal obligation to disclose the truth. CRIMINAL CASE:This prompted Carrera to file a criminal case of
Estafa through Falsification of a Public Document against
Wrongful Intent to Injure a Third Person; Not Necessary Federico de Guzman on unlawfully and criminally falsifying and
“In the falsification of public or official documents, whether by forge the signature of Mariano F. Carrera in the SPA. Causing
public officials or private persons, it is unnecessary that there and making it appear that Carrera signed such SPA which is a
be present the idea of gain or the intent to injure a third person, public document. [Arraignment of De Guzman; Not guilty].
for the reason that, in contradistinction to private documents,
the principal thing punished is the violation of the public faith MOTION TO DISMISS: Itwas alleged that the crime charged would
and the destruction of truth as therein solemnly proclaimed. not lie due to the partial testimony of complainant allegedly to
the effect that he authorized private respondent to mortgage
In public documents, the controlling consideration is the the said one-half portion of the land owned by him and his
public character of a document and the existence of any brother. The interview are as follows:
prejudice caused to third persons becomes immaterial.
Carrera: Yes, sir. On February 10, 1964, my brother Severo Carrera went to Manila
and he asked me to sign a document as a witness and I asked him he interpreted
CONTENTION OF ABSENCE OF CRIMINAL INTENT: As municipal mayor,
that this is an authorization to Federico de Guzman to get a loan from the Bank
he presides all meetings of the Municipal Council and signs all on the half portion of the land which belongs to me, my brother said.
ordinances and resolutions. He was aware of the failure to pass
the budget for Fiscal Year 1975-1976 and was re-enacted. His Based on the aforequoted testimony, private respondent
knowledge of these is shown by the fact that he affixed his contends that there is no sufficient basis for the charge and this
signature in attestation to the correctness of these documents. fact warrants the dismissal of the case.
Criminal intent and the will to commit a crime are presumed to CONTENTION OF PRECSCRIPTION AND COMPLEX CRIMES: Private
exist on the part of the person who executes an act which the respondent also claims that the crime has prescribed since
law punishes, unless the contrary shall appear. In this case, the more than ten (10) years had elapsed from the time the crime
presumption that petitioner committed the act with criminal was committed. Since the information charges the complex
intention, which arose from proof of his commission of the crime of estafa thru falsification of a public document, then the
unlawful act, stands unrebutted. penalty shall be that for the more serious crime which shall be
applied in its maximum period, as provided for by Article 48 of
Abuse of Office, Present the Penal Code. The more serious crime in the present case is
Petitioner argues that there was no showing that he took the falsification of the public document which is punishable
advantage of his official position. The court rejects this idea. with prision correccional in its medium and maximum period
Abuse of public office is considered present when the offender and a fine not exceeding P5,000.00. Prision correccional being
falsifies a document in connection with the duties of his office a correctional penalty, the same prescribes in ten (10) years.
which consist of either making or preparing or otherwise
intervening in the preparation of a document. Petitioner who CFI Pangsaninan: Dismissed the case on the ground that the
was charged with the duty of issuing the certification necessary crime has prescribed. The MR was denied by Judge Villalon.
for the appointment of Jesusa Carreon.
Issues
PEOPLE v. VILLALON (1990) 1. Can the People appeal from the order of dismissal
192 SCRA 521 because it might place respondent on double jeopardy?
2. Is the charged of estafa thru falsification of a public
Facts: Assailed is the order rendered by Judge Castaneda on
document file against respondent has sufficient ground
January 28, 1976 in dismissing the criminal case. It appears that
to exist in law and in fact?
complainant Mariano Carrera and his brother Severo Carrera
3. Has the crime prescribed?
are co-owners of a parcel of land located a Barrio Buenlag,
Pangasinan. On 1964, complainant allegedly executed a SPA
On Double Jeopardy: Not Applicable in this Case
before Notary Public Jaime B. Arzadon, Jr., naming Federico de
Double jeopardy shall not lie when the (1) dismissal is made
Guzman as his lawful attorney-in-fact.
upon motion or with consent of defendant. And (2) dismissal is
not an acquittal or based upon consideration of evidence
On February 13, 1964, private respondent mortgaged the parcel
or of the merits of the case; and (3) the question to be passed
of land with the People’s Bank and Trust Company in Dagupan
upon is purely legal so that dismissal be incorrect it can be
City using the said SPA, able to obtain P8.5K as loan from the
remanded.
mortgagee bank. Both mortgage and SPA were registered.
Estafa Through Falsification of Public Document; Exists In the instant case, the special power of attorney involved was
The falsification of a public document may be a means of registered on February 13, 1964. The criminal information
committing estafa because before the falsified document is against private respondent having been filed only on March 29,
actually utilized to defraud another, the crime of falsification has 1974, or more than ten (10) years thereafter, the crime with
already been consummated, damage or intent to cause which private respondent was charged has indubitably
damage not being an element of the crime of falsification of prescribed. It is not from the date of “discovery” of the crime
public, official or commercial documents. The damage to upon the filing of the ejectment suit.
another is caused by the commission of estafa, not by the
falsification of the document, hence, the falsification of the HELD: The petition is dismissed for lack of merit and the
public, official or commercial document is only a necessary challenged ordered of public respondent are affirmed.
means to commit the estafa
US v. CAPULE (1913)
IN THE CASE:What was intended to be mortgaged was the one- 24 PHIL. 13
half portion pertaining to Severo Carrera, not the portion Facts: Appeal from a judgment of conviction. On September 2,
pertaining to complainant, otherwise complainant would not 1903, Nicasio Capule, for the purpose of appropriating himself
have quoted his brother's words. The theory of petitioner and a trace of coconut land, situated in the town of San Pablo,
the findings of public respondent are substantially the same. Laguna, without the knowledge or consent of the owners
thereof, Spouses Aniceto Maghirang and Isabel Pili, by
In other words, the alleged authorization given to Federico de agreement and cooperation with the notary public, Inocente
Guzman to get a loan from the Bank on the half portion of the Martinez, who later died, prepared and drew up a document
land referred to the share of Severo Carrera only. setting forth the sale in his favor of the said land, pretending
that it was made and executed by the said owners of the tract,
Complex Crimes and Prescription stating in the document that they had made the declaration that
Article 48 of the Revised Penal Code provides that the penalty they had sold said land for the sum of 550 pesos paid at the time
for a complex crime is that for the most serious component of the sale to the vendors, and Jacinto Peñaflor and Jorge
offense, the same to be applied in its maximum period. In the Tolentino appear in said document as witnesses of the
crime of estafa thru falsification of a public document, the more execution thereof; and Eulogio Ortega and Doroteo Guia as the
serious crime is the falsification which carries with it the signers of the deed of sale, because the alleged vendors did not
correctional penalty of prision correccional in its medium and know how to do so.
maximum periods and a fine not more than P5,000.00 imposed
by Article 172 of the Code. Recorded at the bottom of the document was their ratification
of its contents in the presence of said notary, before whom the
Crimes punishable by correctional penalties prescribe in ten said married couple appeared. He even presented, knowing its
(10) years pursuant to Article 90 of the Code, and Article 91 false, in a trial before the justice of peace of that town in an
thereof states that the prescriptive period commences to run attempt to sustain his alleged right to the said piece of land.
"from the day on which the crime is discovered by the offended
party, the authorities, or their agents. CHARGE: The provincial fiscal in the Court of First Instance of
Laguna, charging Nicasio Capule with the crimes of falsification
IN THE CASE:The document which was allegedly falsified was a of a public document and estafa.
notarized special power of attorney registered in the Registry
of Deeds of Dagupan City on February 13, 1964 authorizing The owners sold the same land to two other people (Melecio
private respondent to mortgage a parcel of land covered by Briñas). Capule, claiming to be the owner accused the owners
Transfer Certificate of Title No. 47682 in order to secure a loan of theft. In turn, Capule was accused of the crime of theft in the
of P8,500.00 from the People's Bank and Trust Company. justice of the peace court and was sentenced to two months of
arresto mayor.
The information for estafa thru falsification of a public
document was filed only on March 29, 1974. We reject Aniceto Maghirang denies that he sold the said land to Nicasio
petitioner's claim that the ten-year period commenced when Capule or that he executed in his favor any document of sale,
complainant supposedly discovered the crime in January 1972 stating that he had conferred a power of attorney upon him so
by reason of the ejectment suit against him. that he might represent himself and his wife, late who died, in
a suit they had with Maximo Reyes, because of the absolute
CONSTRUCTIVE NOTICE AS RECKONING POINT: The court denies that confidence that had in the defendant, just as it was the latter
the counting should be from discovery but from the himself who drew up the document that was later signed in his
registration in a public registry for it is a notice in the whole instead by Eulogio Ortega, because he could not read and write;
world (People v. Reyes). The crime of falsification of a public
document the prescriptive period commences from the time He denied that he or his wife had ever been in the house of the
the offended party had constructive notice of the alleged notary Inocente Martinez to execute and ratify the document
forgery after the document was registered with the Register of or that he and his wife Isabel Pili, when she was alive, had told
Deeds
the defendant Capule that they wished to sell the said land and for the alienation of a tract of land belonging to them in favor
that he offered to buy it. of the defendant.
Eulogio Ortega denied that he signed any document of sale of It is unquestionable that he took advantage of the opportunity
land or that he had ever been informed that the married couple when he was to have executed a document or instrument of
Maghirang and Pili had sold any land to the defendant Nicasio power of attorney, which the married couple desired, to draw
Capule. up maliciously and deceitfully a deed of sale in his favor,
deceiving the alleged vendors and the two persons who signed
Although he remembers that one day about seven years ago for them and making them believe that the document executed
Nicasio Capule and Isabel Pili came to his house and the latter was a power of attorney or commission, when in fact it was a
told him that as she did not know how to write she begged him deed of sale and is the Exhibit A, wherein, if he did not forge
to do the favor of signing in her stead a power of attorney. the signatures of the two witnesses Peñaflor and Tolentino, he
must have obtained them in an equally deceitful way.
Jacinto Penaflor stated that the signature which appears • They would not have attempted to sell it twice if
therein with his name and surname looks like his, but he could indeed the vendors did alienate the coconut land.
not assert definitely whether such signature was his or not, for
he does not remember having signed such a document in the HELD: Capule is found guilty to have committed the act of
presence of the married couple Maghirang and Pili and the falsification of a public document in which he ascribed
individuals Eulogio Ortega, Doroteo Guia, and Jorge Tolentino, statements different from what they had made to him and by
setting forth the sale of a tract of land to Nicasio Capule, and perverting the truth in the narration of facts, getting persons to
that he did not recognize the signatures of Doroteo Guia and sign in the name of the owners of the land, through deceit, after
Eulogio Ortega. giving them to understand that the document contained a
power of attorney, when in fact it was a deed of sale of the land,
Falsification Of A Document Has Been Committed the legitimate owners whereof had never intended or
It therefore appears to be plainly proven that the crime of consented to its alienation.
falsification of a document has been committed because the
defendant executed upon said notarial document of an official PEOPLE v. MANANSALA
character acts constituting falsification. 105 PHIL. 1253
Facts: Appeal from conviction by CFI Manila on falsification
Done by counterfeiting therein the intervention of the married official document. The falsification consists of altering the
couple Aniceto Maghirang and Isabel Pili, to whom he ascribed duplicated copy of Traffic Violation Report previously issued
statements different from what they had made to him and by to said accused as a temporary driver’s permit, by erasing the
preventing the truth in the narration of facts, getting two originally written figure "III" and the word "three" after the words
persons to sign in the name of said married couple through "pending cases" and by writing and superimposing thereon
deceit, after giving them to understand that the document number "I" and the word "one".
contained a commission or power of attorney, when in fact was
a deed of sale of a piece of land, the legitimate owners whereof The alterations thus made changed the meaning of the said
had never intended or consented to its alienation. official document, because by said alterations, it was made to
appear that accused had only one pending case of traffic
None of the persons who appear to have signed said document violation instead of three, as originally written on said
and seem to have been present at its execution were informed document. The practice was proved to be to arrest a driver who
of its true contents, because they all confined with the greatest commits a fourth traffic violation instead of merely issuing to
good faith in the false and deceitful statements of the him a TVR, as is usually done for the first, second and third
defendant, believing what he said to the effect that said violations.
instrument was a commission voluntarily conferred upon him
by the couple executing it. The accused had the falsified TVR in his possession and had
been using it as a temporary driver's permit from its issuance
The couple never intended to execute any document of sale of to the time he was caught committing a fourth traffic violation.
their property to the defendant , who went to the extreme of
getting a notary to certify to its ratification before him, made PRESUMPTION: It is an established rule that when a person has in
apparently by the alleged vendors in the contents of the said his possession a falsified document and makes use of the same,
false documents. the presumption or inference is justified that such person is the
forger. The circumstances, therefore, that accused made use of
DEED OF SALE FROM POWER OF ATTORNEY. Spouses Maghirang and and benefited from the falsified TVR is a strong evidence that
Pili cannot be absolutely denied the ability to distinguish a deed he either himself falsified it or caused the same to be falsified,
of sale from a power of attorney, because they have he is being criminally liable in either case.
demonstrated well enough that they understood their purpose
to be the defendant should represent them in a suit pending in HELD: Judgment affirmed with triple costs.
a court and that they had never intended or executed any act
CASES UNDER USE OF FALSIFIED DOCUMENTS American Jurisprudence on Forgery

State v. Morgan; State v. Outs; Cohn v. People - In
US v. CASTILLO (1906) Massachusetts, it has been held that the mere fact of uttering
6 PHIL. 453 is not proof of forgery. Nevertheless, it has been decided, that
Facts: On 2nd of December 1905, appellant Pio Castillio "possession of a forged instrument by a person claiming under
presented a check for the sum of 56 pesos, Philippine currency, it is strong evidence tending to prove that he forged it or
to a Chinese merchant named Lim Ponso. The check was made caused it to be forged."
payable to bearer and purported to be drawn by one James J.
Watkins. The amount of the check was payable to Pio Castillo In the case: We do not hold, that the mere fact that the accused
and the signature of the drawer upon said check was a uttered the check in question is proof of the fact that he also
forgery made in the imitation of the true signature of James forged it or caused it to be forged. However, we do hold that
J. Watkins, sheriff of Iloilo City. In fact, said James J. Watkins the utterance of such an instrument, when unexplained, is
never signed or issued said check. strong evidence tending to establish the fact that the utterer
either himself forged the instrument or caused it to be forged,
The check in question was initially blank and was stolen from and that this evidence, taken together with the further evidence
a book of blank checks between the hours of 12 noon on 1 set out above and brought out on the trial of the case, establishes
December 1903 and 11AM on 2 December 1903. The blank the guilt of the accused of the crime with which he was charged
check book was kept in a drawer in the office of said James J. beyond a reasonable doubt.
Watkins. Pio Castillo was one of the three clerks employed
by James J. Watkins in his office. Castillo was in the office on Discussion Proper: On appeal that the information filed in this
the evening of 1 December 1903 and he was the last person left case is fatally deficient because it charges the accused with
alone in the office that night, having locked the office after all falsification and further alleges that he received the sum of
the other clerks had left. money realized as a result of said falsification, and it is
contended that the accused was thus charged as principal and
Castillo went on the witness stand and swore that he had never as accessory after the fact.
seen the forged check prior to trial and that he was not at the
business place of the Chinese Merchant, Lim Ponso, on the 2 In the Case: It is sufficient answer to this contention to say that
December 1903. He swore that he never received the money no objection was raised on this ground at the trial; and it is
which it is alleged was paid him upon the check. The falsity of further to be observed that this allegation was not in fact or
these statements was conclusively established by the testimony intention a charge against the accused as accessory after the
of witnesses for the prosecution. fact, and appears to have been set out in the information
merely to fix the civil responsibility upon which the court is
RTC – Upon this evidence the trial court held that the required to pass, under the provisions of the Spanish Penal
prosecution had failed to establish the charge of falsification, Code.
but found the accused guilty of the crime of knowingly using
with intent to gain a falsified mercantile document as defined Discussion Proper: The trial court was of opinion that the
and penalized in article 302 of the Penal Code, and sentenced aggravating circumstances of premeditation and abuse of
him to five months' imprisonment (arresto mayor) with the confidence should be taken into consideration in fixing the
accessory penalties. penalty to be imposed.
W/N Pio Castillo is guilty of falsification. In the Case: We agree with the Solicitor-General that
premeditation is inherently involved in crimes of this nature,
Discussion Proper: Does the uttering of a forged instrument and since it does not appear that the check book was under the
by a particular person justify a jury in convicting such a person control or intrusted to the care of the accused, the crime cannot
of forgery? be said to have been committed with "abuse of confidence"
within the meaning of circumstance 10 of article 10 of the Penal
Crime of Forgery Similar to Proving Larceny Code.
This question, if nakedly put, must, like the kindred one as to
the proof of larceny by evidence of possession of stolen HELD: RTC Judgement is REVERSED. The accused, Pio Castillo,
goods. The defendant is presumed to be innocent until is guilty of the crime of "falsification of a mercantile instrument,"
otherwise proved. In larceny this presumption is overcome by as charged, and it appearing that the accused, at the time of
proof that the possession is so recent that it becomes difficult to the commission of the crime, was less than 18 though more
conceive how the defendant could have got the property without than 15 years old, we impose upon him the penalty immediately
being in some way concerned in the stealing. So it is with the inferior to that prescribed for that offense, and there being no
uttering. The uttering may be so closely connected in time aggravating or extenuating circumstances, we sentence the
with the forging, the utterer may be proved to have such said Pio Castillo to four years' imprisonment (presidio
capacity for forging, or such close connection with the correccional) with the accessory penalties prescribed by law,
forgers that it becomes, when so accomplished, probable and to the payment of the costs in both instances and the
proof of complicity in the forgery. indemnification of the injured party.
DAVA v. PEOPLE (1991) prosecution witnesses was Caroline Vinluan of the Angeles City
202 SCRA 62 branch of the Bureau of Land Transportation (BLT). He testified
Facts: On October 19, 1975, while driving a car along Shaw that he was then the registrar of the said office when Dava's
driver' license was brought to him by lawyer Jose Francisco who
Boulevard, Mandaluyong, Rizal, petitioner Michael T. Dava, then
was interested in knowing whether it was genuine or fake and if
holder of non-professional driver's license No. 14744271 with
was issued by the Angeles City agency of the BLT. He examine
official receipt No. 7023037, bumped pedestrians Bernadette
it and found out that it was "fake or illegally issued" because
Roxas Clamor and Dolores E. Roxas, causing death to
form No. 2706887 was one of the fifty (50) forms which had been
former and physical injuries to the latter. reported missing from their office sometime in November, 1976
and that it was never issued to any applicant for a license. He
added that any license that was not included their office index
As a consequence of said incident, Dava was brought to
card was considered as "coming from illegal source' and "not
Mandaluyong Police headquarters where his driver's license
legally issued by any agency." The form was issued in Angeles
was confiscated by Cpl. Daniel Severino who later submitted
while on its face the license was issued in San Fernando,
Dava's driver's license to the fiscal's office in Pasig, Rizal. license
Pampanga agency.
was thereafter presented as prosecution evidence in criminal
case for homicide and serious physical injuries reckless
Dava was convicted of the crime charged. He appealed to then
imprudence filed against Dava in the then Court First Instance
Court of Appeals which affirmed the lower court's decision on
of Rizal in Pasig.
January 29, 1982. Dava filed a motion for reconsideration of the
said decision contending that the lower court had no
On April 12, 1978, Antonio Roxas, the brother of Bernadette
jurisdiction to try the case. On April 27, 1982, the Court of
and the father of Dolores, saw Dava driving a maroon
Appeals reversed and set aside its decision.
Volkswagen (beetle-type) car with plate No. AD-902 B. Knowing
that Dava's driver's license was used as an exhibit in court and
Consequently, the case was refiled with the Regional Trial
that no traffic violation receipt had been issued to Dava,
Court of Pampanga, Branch 47 at San Fernando as Criminal
Roxas sought the help of then Minister of Defense Juan Ponce
Case No. 2422.
Enrile in apprehending Dava for driving without a license.
At the trial, the prosecution presented Antonio Roxas Dava for

At around 7:30 in the evening of July 21, 1978, M/Sgt. Domingo
driving without a license. For his part, Domingo Lising, who
Lising and S/Sgt. Arturo Viduya of the CHPG saw the maroon
apprehended Dava. Different license’s signature and date of
Volkswagen car described by Roxas parked in front of the
birth.
Uniwide Department Store near the then Nation theater in
Cubao, Quezon City. When the driver and his companion
Daniel Severino, a sergeant of the Mandaluyong police, testified
arrived, Lising and Viduya confronted them and asked the
that he investigated the traffic incident along Shaw Boulevard
driver for his license. They were shown non-professional driver's
on October 19, 1975 which involved Dava and the two relatives
license No. 27068875 with official receipt No. 06058706 issued
of Antonio Roxas. He himself confiscated Dava's no
by Agency 2L Pampanga in the name of Michael T. Dava. When
professional driver's license No. 1474427 which he later turn
asked about the source of his license, Dava informed them that
over to the fiscal's office.
his officemate had secured it for him.
In the course of Severino's testimony, the defense counsel

Lising then submitted a spot report to Col. Maristela stating
informed the court that, upon a resolution of the Court of
therein that "subject had violated Section 31 of RA 4136 for
Appeals, Dava was allowed by the lower court having
false representation in the application of a driver's license
jurisdiction over Criminal Case No. 16474 to withdraw his
intended to be used as a legal license." In his affidavit of
driver's license 1474427 from the records of said case. When
apprehension dated November 16, 1978, Lising stated that he
confronted by the court, Dava volunteered that he withdrew
was 'about to book him for violation of Section 31 of Rep. Act
said license in December, 1982 and surrendered it to the
4136, when subsequent investigation revealed that the Driver's
BLT Western District Office so that he could renew his
License above-mentioned is a Fake and a Falsity' and
license. Hence, the evidence presented before the Court was a
therefore a case for falsification and use of falsified documents
mere xerox copy of said license which also bears a notation
under Section 172 of the Revised Penal Code should be filed
that Dava received original driver's license and its receipt
against Dava. Lising concluded that Dava's driver's license was
on December 15, 1982.
fake because when he compared it with the xerox copy of Dava's
license which was attached to the record of the criminal case in
Victor Martin, who had been the head of the San Fernando
Pasig, the signatures and the dates of birth indicated in the two
Pampanga branch of the BLT and whose name appears
licenses did "not tally.”
registrar thereof in official receipt No. 0605870 which was
supposed to be attached to Dava's driver's license No. 270688,
Accordingly, an information for falsification of a public
admitted that the form of the said license was genuine although
document was filed against Dava in the then Court of First
he could not tell whether its contents were likewise genuine
Instance of Rizal, Branch V at Quezon City. One of the
because it was "opened" and "spliced."
He asserted, however, that since the said form "did not On March 22, 1984, the lower court rendered a decision finding
emanate" from his office and "a facsimile was not printed" that the license in question was "fake or spurious", that was
over his name, said license was "not OK". not duly issued by any proper government licensing agency
and that the accused directly participated in the commission of
Martin said that he was informed by the property section of the the falsification or caused said falsification. The court took into
BLT regional office that the number in the license was one of account the facts that Dava was "in dire need' of a license
"the numbers requisitioned by (the) Angeles City agency." He because of his work as a detailman; that he received his
affirmed that drivers license No. 2706887 "was not issued by genuine license from the court only on December 15, 1982, and
(their) agency" although when recalled to the stand, he that Dava himself personally requested his friend, Manalili, to
admitted that the "2L" filled in the space for "Agency Code No." secure the license for him. It arrived at the conclusion that since
on the face of license No. 2706887 referred to the San Fernando Dava was the possessor or user of the fake license, he himself was
agency. Martin also confirmed the genuineness of official the forger or the one who caused its forgery or falsification.
receipt No. 0605870 although it was his assistant who signed
it for him and affirmed that the amount of P10.00 indicated Dava appealed to the then Intermediate Appellate Court, which
therein had been collected and received by his office. on September 30, 1985 affirmed in in toto the decision of the
trial court. On February 27, 1986, the appellate court denied
Lawyer Jose Francisco testified that he went to the Angeles City Dava's motion for the reconsideration of said decision finding
office of the BLT to see its chief and inquire about the number that no new grounds had been raised therein.
of driver's license issued to Dava and whether said office had
indeed issued them. According to him, the head of the office, Whether or not Dava is guilty for violation of falsification
Caroline Vinluan, advised him to verify from the index card in and use of falsified documents under Article 172 of the
the possession of the License Division head whether the Revised Penal Code
Angeles City agency had indeed issued Dava's license.
Thereafter, the officer-in-charge of the License Division of the
BLT in East Avenue, Quezon City, Leonardo R. Medina, issued a Petitioner’s arguments:
certification dated December 24, 1979 to the effect that non-
professional drivers license No. 2706887 in the name of Dava Petitioner assails herein the reliance of the courts below on the
was "not registered in (their) Index Card." testimony of Carolino Vinluan on the ground that being a part
of the annulled proceedings in Criminal Case No. Q-10759, it
may not be considered as admissible in evidence as it cannot
Another evidence presented by the prosecution was the qualify as a "testimony at a former trial" under the provisions of
transcript of stenographic notes of the testimony of Section 41, Rule 130 of the Rules of Court.
Carolino Vinluan which was taken on January 8, 1980 at the
trial of Criminal Case No. Q-10759 before the then Court of First The Court’s Ruling:
Instance Rizal, Branch V at Quezon City. It was marked as Exh. K
said exhibit was part of the record of Criminal Case No. 10759 We find petitioner's contention to be meritorious. The
which was transmitted to the Regional Trial Court Pampanga. resolution of the then Intermediate Appellate Court in CA-G.R.
No. 24312-CR, expressly annulled the proceedings had in
The defense presented only one witness: Felizardo Manalili. A Criminal Case No. Q-10759 for lack of jurisdiction of the
friend of Dava and his former co-trainee at the Sandoz Quezon City court over the case. That ruling is founded on
Philippines, a pharmaceutical firm, Manalili testified that Dava solid jurisprudence. We had time and again held that in the
requested him to secure a driver's license for him because he had absence of proof that the party raising the issue of lack of
none. Manalili went to the San Fernando office of the Land jurisdiction is barred by estoppel, a decision rendered by a
Transportation Commission (LTC) where he used to secure own court without jurisdiction is a total nullity. Being worthless in
license. At the LTC branch office, he was "approached" the fixers itself, all the proceedings founded upon it are equally worthless.
who roamed around the compound. When he as them how Hence, the testimony of Vinluan is not only inadmissible in
much it would cost to secure a driver's license, he told that it evidence but may well be considered as totally nonexistent.
would amount to P70.00. He agreed to pay amount and gave
the fixers the personal data of Dava. With the testimony of the late Carolino Vinluan out of the way,
is there sufficient evidence to warrant the conviction of petitioner
After an hour, the fixers gave Manalili the license which was for the crime charged?
inside a plastic jacket. (Manalili identified the license as Exh.
B.) He examined it and found out that it looked "like a genuine The information specifically charges the petitioner with having
and authentic driver's license" to him. The license, which made it appear in his driver's license No. 2706887 that "officials
opened and unsealed, bore a signature in the portion which of the Pampanga LTC agency participated" in in-preparation
showed the name Romeo Edu and contained all the personal and with having used the said driver's license knowing that it was
data of Dava. Because it did not bear the signature of Dava falsified.
Manalili immediately gave the license to Dava and told him to
sign it immediately. Dava did so in Manalili's presence.
The charges therefore are found on the provisions of Article 172 (a) The offender knew that a document was falsified by another
(1) of the Revised Penal Code which punishes any private person;
individual who shall commit any the falsification enumerated in (b) The false document is embraced in Article 171 or in any of
Article 171 specifically paragraph 2 thereof which penalizes the subdivisions Nos. 1 and 2 of Article 172;
act of causing it to appear that persons (public officials) have (c) He used such document (not in judicial proceedings),
participated in any act proceeding when they did not in fact so (d) The use of the false document caused damage to another
participate. The information also charges Dava with having or at last it was used with intent to cause such damage.
knowingly used a false document under the last paragraph of
Article 172. Except for last, all of these elements have been proven beyond
reason doubt in this case.
The evidence at hand proves that petitioner, misrepresenting
that he had no driver's license, asked his friend, Manalili, to It is not disputed that it was petitioner himself who requested
secure one for him. Sometime in November, 1976, Manalili, who Manalili to get him a license. He misrepresented to Manalili
used to get his own driver's license in San Fernando, Pampanga, that he has not at any time been issued a driver's license.
was able to secure petitioner's driver's license No. 2706887 Through this misrepresentation and capitalizing on Manalili
through fixers at the Land Transportation Commission (LTC) awareness of the dire necessity of obtaining a driver's license
agency in said locality. On January 24, 1978, petitioner renewed the shortest time possible to enable petitioner to perform duties
his license at the said office by paying the amount of P10.00 for as detailman, petitioner was able, in a very subtle clever
which he was issued official receipt No. 0605870. manner, to induce Manalili to deal with "fixers" in securing the
subject driver's license.
In the renewal of drivers' license, the practice then was simply
to present an official receipt showing that at the previous year For indeed, there was no way Manalili could obtain a drivers
the licensee had paid for his driver's license to any agency of the license in so short a without having to deal with "fixers." Thus,
LTC, and to pay the renewal fee. As long as the transaction did as petitioner calculated, Manalili, who appeared to have been
not involve the issuance of "another form," a driver did not have motivated by a sincere desire to help a friend, did not hesitate
to fill up an application form for the renewal of a license. The to deal with three fixers whom he knew were not employees of
said agency would then issue an official receipt evidencing the LTC to whom he paid P70.00 for the license even if the legal
the renewal of the license but the driver's license itself fee then was only P15.00. As it was in truth petitioner who
would not be changed. induced and left Manalili with no choice but to seek the aid of
fixers, the fact that it was Manalili and not petitioner who dealt
Thus, on January 24,1978, when driver's license No. 2706887 directly with said fixers cannot exculpate petitioner from the
together with official receipt No. 86432149 were presented to charge of falsification. He is, beyond reasonable doubt, a
the San Fernando LTC agency, the personnel therein issued principal by inducement in the commission of said crime.
official-receipt No. 0605870 in the name of petitioner. Although
the receipt was not personally signed by office registrar Victor Petitioner cannot feign ignorance of the spurious character of
Martin but by his assistant, the receipt was genuine and the his second driver's license No. 2706887. Having already
amount indicated therein was actually paid to and collected by obtained a driver's license, he knew that it was not legally
the San Fernando agency. The driver's license itself may not possible for him to secure another one.
have been issued by said agency but its form was likewise
genuine. However, according to Martin, it was 'not OK' because Otherwise, there would have been no need for him to
it "did not emanate" from his office and "a facsimile was not misrepresent to his friend Manalili that he was not then a holder
printed over" his name therein. Moreover, according to the of a driver's license. But even with this misrepresentation,
officer-in-charge of the license Division of the Bureau of Land petitioner cannot even begin to believe that Manalili would be
Transportation in East Avenue, Quezon City, non-professional able to secure a driver's license through legal means in about
driver's license No. 2706887 in the name of Michael Dava an hour's time.
Tolosa "is not registered" in their index card.
The patent irregularity in obtaining driver's license No. 2706887
Hence, while there is no doubt that driver's license No. was more than sufficient to arouse the suspicion of an ordinary
2706887 was a spurious one, the evidence do not pinpoint cautious and prudent man as to its genuineness and
the petitioner as the actual falsifier. Unfortunately, authenticity. In fact, Manalili testified that he himself was
however, there are pieces of evidence which prove beyond surprised when the fixer handed to him the plastic jacket of the
reasonable doubt at he caused the falsification and made driver's license of Michael Dava on November 4, 1976, a few
use of the falsified driver's license knowing it to be so. hours after he had sought the fixer's assistance.59 In those days,
all plastic jackets emanated from the LTC Central Office, which
Elements of Using a Falsified Document accounted for the delay in the release of the license applied for.
Under these circumstances, no "reasonable and fairminded
The elements of the crime of using a falsified document in man" would say that petitioner did not know that his license
transaction (other than as evidence in a judicial proceed was a fake.
penalized under the last paragraph of Article 172 are following:
A driver's license is a public document within the purview of our own people. While not all fixers are engaged in illegal
Articles 171 and 172. The blank form of the drivers license activities for some simply serve as "facilitators," they
becomes a public document the moment it is accomplished. nonetheless provide sources for exploitation of the unknowing
common people who transact business with the government
Thus, when driver's license No. 2706887 was filled up with and for corruption of the gullible government employees. Their
petitioner's personal data and the signature of the region of the -unwanted presence must be dealt with accordingly and the
San Fernando LTC agency was affixed therein, even if the same soonest this is undertaken by our government agencies the
was simulated, the driver's license became a public document. better for all of us.
The third element of use of the falsified document is proven Held: WHEREFORE, the decision of the respondent appellate
by the fact that when petitioner was apprehended by Lising on court is hereby affirmed. Let a copy of this decision be served
April 12, 1978 it was in his possession and it was what he on that Department of Transportation and Communication.
presented Lising to show that he had a license. Because he was Cost against the petitioner.
a detailman who did his job with the use of a car, it is probable
that from November 4, 1976 (its date of issuance) until April 12,
1978, petitioner used driver's license No. 2706887. Article 173. Falsification of wireless, cable, telegraph,
and telephone messages, and use of said falsified
The driver's license being a public document, proof of the fourth messages. – The penalty of prision correccional in its
element of damage caused to another person or at least an medium and maximum periods shall be imposed upon
intent to cause such damage has become immaterial. In any officer or employee of the Government or of any
falsification of public or official documents, the principal thing private corporation or concern engaged in the service of
being punished is the violation of the public faith and the sending or receiving wireless, cable, telegraph, or
destruction of the truth proclaimed therein. telephone messages who utters a fictitious wireless,
telegraph, or telephone message of any system or
In his attempt at exculpation, petitioner asserts that the falsifies the same.
following ruling in People vs. Sendaydiego, should be applied
in his favor: Any person who shall use such falsified dispatch to the
prejudice of a third party or with intent to cause such
The rule is that if a person had in his possession a falsified prejudice, shall suffer the penalty next lower in degree.
document and he made use of it (uttered it), taking
advantage of it and profiting thereby, the presumption is Three Acts Punishable Under Article 173
that he is the material author of the falsification. This is 1. Uttering fictitious wireless, telegraph or telephone
especially true if the use or uttering of the forged documents message.
was so closely connected in time with the forgery that the user 2. Falsifying wireless, telegraph or telephone message.
or possessor may be proven to have the capacity of committing 3. Using such falsified message.
the forgery, or to have close connection with the forgers, and
therefore, had complicity in the forgery. In the absence of a Article 173 (1). Uttering fictitious message or
satisfactory explanation, one who is found in possession of a falsifying the same.
forged document and who used or uttered it is presumed to be
the forger.
ELEMENTS
1. That the offender is an officer or employee of the
We agree with the petitioner that the presumption
Government or an officer or employee of a private
enunciated in the Sendaydiego case is not absolute as it is
corporation, engaged in the service of sending or
subject to the exception that the accused should have a
receiving wireless cable or telephone messages.
satisfactory explanation why he is in possession of a false
2. That the offender commits any of the following acts:
document. His explanation, however, is unsatisfactory as it
a. Uttering fictitious wireless, cable, telegraph
consists mainly in passing the buck to his friend, Manalili.
or telephone message; or
As stated above, Manalili himself could not have acted on his
b. Falsifying wireless, cable, telegraph or
own accord without the prodding of petitioner.
telephone message.
COMMENTARY ON FIXERS: We cannot help but comment on

The Public Officer, to be Liable, Must be Engaged in the
petitioner's allegations on the role of fixers in government
Service of Sending or Receiving Wireless, Cable, Telegraph
agencies. To him, a fixer is a "necessary evil" who could do
or Telephone Message
things fast for the right amount. He is "not necessarily involved
The officer or employee of the Government, to be liable, must
in the commission of forgery or falsification of official
be engaged in the service of sending or receiving wireless,
documents" and he shares his fees with "insiders."65 Fixers
cable, telegraph or telephone messages, like the telegraph
indeed appear as undetachable fixtures in government
operator of the Bureau of Posts or the operator of Government
licensing agencies. Why they proliferate is a sad commentary
telephone.
not-only on our bureaucracy but also on
The accused, a telegraph operator, who

US v. ROMERO, 17 Phil. 76. Persons Liable for Falsification of Certificates
received two telegrams for transmission, reduced the number 1. Physician or surgeon who, in connection with the
of words of the telegraph messages by twelve and eight words, practice of his profession, issued a false certificate.
respectively, without having been authorized to do so by the CRIME: False Medical Certificate by a Physician
sender.
2. Public officer who issued a false certificate of merit or
service, good conduct or similar circumstances.
Article 173 (2). Use of said falsified messages. CRIME: False Certificate of Merit or Service
by a Pubic Officer
ELEMENTS:
3. Private individual who falsified a certificate falling in
1. That the accused knew that wireless, cable, telegraph
the classes mentioned in Nos. 1 and 2.
or telephone message was falsified by any of the
persons specified in Article 173(1).
Certificate of “Similar Circumstances”
2. That the accused used such falsified dispatch.
The phrase "or similar circumstances" in Art. 174 does not seem
3. That the use of the falsified dispatch resulted in the
to cover property, because the circumstance contemplated
prejudice of a third party, or that the use thereof was
must be similar to "merit," "service," or "good conduct."
with intent to cause such prejudice.
Article 175. Using false certificates. – The penalty of
Private Individual Cannot be a Principal by Direct
arresto menor shall be imposed upon any one who shall
Participation in Falsification of Telegraphic Dispatches
knowingly use any of the false certificates mentioned in
A private individual cannot commit the crime of falsification of
the next preceding article.
telegraphic dispatches by direct participation, unless he is an
employee of a corporation engaged in the business of sending
ELEMENTS:
or receiving wireless, telegraph or telephone messages. But a
1. That a physician or surgeon had issued a false medical
private individual can be held criminally liable as principal by
certificate, or a public officer had issued a false
inducement in the falsification of telegraph dispatches or
certificate of merit or service, good conduct, or similar
telephone messages. But if he knowingly uses any falsified
circumstances, or a private person had falsified any of
telegraph, wireless or telephone messages to the prejudice of a
said certificates.
third person, or with intent to cause such prejudice, it is not
2. That the offender knew that the certificate was false.
necessary that he be connected with such corporation.
3. That he used the same.
Act No. 1851, Section 4 Punishes Private Individuals who

When any of the false certificates mentioned in Art. 174 is used
Forge or Alter Telegram
in the judicial proceeding, Art. 172 does not apply, because the
Any person who willfully forges or substantially alters a
use of false document in judicial proceeding under Art. 172 is
telegram or who utters a telegram knowing the same to be
limited to those false documents embraced in 171 and 172.
forged, or who utters as a telegram any message or
communication which he knows to be not a telegram, is
Section Six. - Manufacturing, importing, and possession of
punished by a fine not exceeding 100 pesos.
instruments or implements intended for the commission
of falsification.
Section Five. - Falsification of medical certificates,
certificates of merit or service, and the like.
Article 176. Manufacturing and possession of
instruments or implements for falsification. — The
Article 174. False medical certificates, false certificates
penalty of prision correccional in its medium and
of merit or service, etc. – The penalties or arresto mayor
maximum periods and a fine not to exceed One million
in its maximum period to prision correccional in its
pesos (P1,000,000) shall be imposed upon any person
minimum period and a fine not to exceed Two hundred
who shall make or introduce into the Philippine Islands
thousand pesos (P200,000) shall be imposed upon:
any stamps, dies, marks, or other instruments or
1. Any physician or surgeon who, in connection
implements intended to be used in the commission of
with practice of his profession, shall issue a false
the offenses of counterfeiting or falsification mentioned
certificate.
in the preceding sections of this chapter.
2. Any public officer who shall issue a false
certificate of merit of service, good conduct or
Any person who, with the intention of using them, shall
similar circumstances.
have in his possession any of the instruments or
implements mentioned in the preceding paragraph, shall
The penalty of arresto mayor shall be imposed upon any
suffer the penalty next lower in degree than that
private person who shall falsify a certificate falling
provided therein.
within the classes mentioned in two preceding
subdivisions.
Acts Punished Under Article 176 2. By performing any act pertaining to any person in
1. Making or introducing into the Philippines any authority or public officer of the Philippine
stamps, dies, marks, or other instruments or Government or of a foreign government or any
implements for counterfeiting or falsification. agency thereof, under pretense of official position, and
2. Possessing with intent to use the instruments or without being lawfully entitled to do so.
implements for counterfeiting or falsification made in
or introduced into the Philippines by another person Note that in usurpation of official functions, it is essential
that the offender should have performed an act pertaining to
The Implements Confiscated Need Not Form Complete Set a person in authority or public officer, in addition to other
In order to secure a conviction under the 2nd paragraph of Art. requirements.
176, it is not necessary that the implements confiscated form a
complete set for counterfeiting, it being enough that they may There Must be Positive, Express,
be employed by themselves or together with other implements and Explicit Representation
to commit the crime of counterfeiting or falsification. The law demands positive, express and explicit representation
on the part of the offender before he can be convicted of
Articles 165 and 176 of RPC also Punish usurpation of authority. The crime is not committed if the
Constructive Possession accused merely did not deny that he was an agent of the
The possession prohibited in Articles 165 and 176 of the Philippine Government when introduced as such by public
Revised Penal Code is possession, in general, that is, not only officials who responded to the intrigues of one Jose B. Lazaro.
actual, physical possession, but also constructive possession or
the subjection of the thing to one's control. False Representation May be Shown by Acts
It is not necessary that the offender should falsely represent
Where the sale of counterfeiting paraphernalia is made subject himself to be an officer, agent or representative of any
to the condition that the vendor must demonstrate how department or agency of the government.
counterfeiting is done, and, on the way to the place where the
demonstration is to be done, the vehicle carrying the Thus, even in the absence of evidence that the accused
paraphernalia is intercepted and its cargo is confiscated, the represented himself as a police officer, his acts in blowing his
vendor, although not in the vehicle, is nonetheless in whistle, stopping buses and ordering drivers to step down their
constructive possession of the articles and the same still legally passenger vehicles and produce their driver's licenses,
subject to his control. sufficiently establish his culpability for the crime of usurpation
of official functions under Art. 177 of the Revised Penal Code.
CHAPTER TWO
OTHER FALSITIES Public Officer Can Commit Violation under Article 177
There is no reason to restrict the operation of Article 177 to
Section One. - Usurpation of authority, rank, title, and private individuals. For one thing, it applies to "any person"; and
improper use of names, uniforms, and insignia. when the law does not distinguish, we should not distinguish.
Article 177. Usurpation of authority or official functions. Furthermore, contrary to appellant's assumption that Articles
– Any person who shall knowingly and falsely represent 238-241 of the Revised Penal Code penalize all kinds of
himself to be an officer, agent, or representative of any usurpation of official function by public officers, said articles
department or agency of the Philippine Government or merely punish interference by officers of one of the three
of any foreign government who, under pretense of departments of government (legislative, executive and judicial)
official position, shall perform any act pertaining to any with functions of officials of another department.
person in authority or public officer of the Philippine
Government or any foreign government, or any agency Said articles do not cover usurpation of one officer or
thereof, without being lawfully entitled to do so, shall employee of a given department of the powers of another
suffer the penalty of prision correccional in its minimum officer in the same department. For instance, the exercise by
and medium periods. a bureau employee of the power of his director.
Two Ways of Committing the Crime under Article 177 Article 177 Not Apply to Occupant Under Color of Title
1. By knowingly and falsely representing oneself to be an Article 177 of the Revised Penal Code, as amended, punishes
officer, agent or representative of any department or the usurper or one who acts under false pretenses and not the
agency of the Philippine Government or any foreign occupant under color of title.
government.
A usurper is "one who introduces himself into an office that is
Note that in usurpation of authority, the mere act of vacant, or who, without color of title, ousts the incumbent and
knowingly and falsely representing oneself to be an officer is assumes to act as an officer by exercising some of the functions
sufficient. It is not necessary that he performs acts pertaining to of the office."
a public officer in such.
Article 177, punishes Usurpation of Authority or Official When Gigantoni was no longer around, PAL general counsel Ricardo
Functions of Any Officer of Any Foreign Government Puno, Jr., inquired from Atty. Boro about Gigantoni's purpose in
Note that the offenses defined and penalized in Art. 177, as securing copies of PAL records. They then became suspicious of the
accused" real identity prompting them to conduct verification from
amended, may be committed by knowingly and falsely
the PC-CIS office. They subsequently learned from General Uy of PC-
representing oneself to be an officer, agent or representative of CIS that Gigantoni was no longer a CIS agent since June 30, 1980 as
any department or agency of any foreign government; and by he had been dismissed from the service for gross misconduct
performing, under pretense of official position and without brought about by the extortion charges filed against him and his final
being lawfully entitled to do so, any act pertaining to any conviction by the Sandiganbayan for the said offense. Upon
person in authority or public officer of any foreign government, discovering the foregoing, Atty. Puno immediately alerted the NBI as
or any agency thereof. Gigantoni would be coming back to the PAL office the following day.
On May 15, 1981, when Gigantoni returned to the Makati PAL office, he
NOTE: Additional penalty for usurping the authority of
was brought by Atty. Puno to their conference room while waiting for
diplomatic or consular or any other official of foreign the arrival of the NBI agents who were earlier contacted. In the presence
government is P5,000 fine but with intent to defraud. (RA 75) of Atty. Boro and a PAL security, Gigantoni was confronted by Atty. Puno
as to his real Identity. He later admitted that he was no longer with the
The act performed, without the offender being lawfully entitled CIS; that he was working for the Black Mountain Mining Corporation; and
to do so must pertain: that he was just checking on a claim for per diem of one of their
1. To the Government employees who had travelled.
2. To any person in authority
Upon the arrival of NBI agents Teodoro Pangilinan, Lolito Utitco and
3. To any public officer
Dante Crisologo, Attys. Puno and Boro turned over the person of
Gigantoni to the NBI. They also submitted a complaint affidavit against
NOTE: RA 10 only applicable to members of seditious Gigantoni .... On that same day, after the investigation, arrest and
organization engaged in subversive activities. booking conducted by the NBI, Gigantoni was charged before the
Office of the Provincial Fiscal of Rizal, thru its office in Makati, with the
GIGANTONI v. PEOPLE (1988) crime of Usurpation of Authority.
162 SCRA 158
GIGANTONI’S CONTENTION: He could not be guilty of the crime
INFORMATION: That on or about the 14th and 15th day of May, 1981,
charged because at the time of the alleged commission of the offense,
in the Municipality of Makati, Metro Manila, Philippines, and within the
he was still a CIS agent who was merely suspended and was not yet
jurisdiction of this Honorable Court, the above-named accused, who is
informed of his termination from the service. Furthermore, he avers that
not a bonafide agent of the CIS, Philippine Constabulary, did then and
the receipt by him of the notice of dismissal, if there was any, could not
there willfully, unlawfully, knowingly and falsely represented himself as
be established on mere presumption of law that official duty has been
a bonafide agent of the CIS, Philippine Constabulary, said accused,
regularly performed.
knowing fully well his representation to be false.
ARTICLE 177, EXPLAINED: Article 177 of the Revised Penal Code on
OVERVIEW: Arraignment not guilty, lower court rendered judgment
usurpation of authority or official functions, under which the petitioner
finding the accused guilty as charged. On appeal to appellate court,
was charged, punishes any person:
judgment is affirmed with modification to penalty.
(a) who knowingly and falsely represents himself to be an officer,
agent or representative of any department or agency of the
FACTS: During the period material to this case, or in 1981, accused-
Philippine Government or of any foreign government; or
appellant Melencio Gigantoni was an employee of Black Mountain
(b) who, under pretense of official position, performs any act
Mining Inc. and Tetra Management Corporation, which are both private
pertaining to any person in authority or public officer of the
companies doing business in the Philippines.
Philippine Government or any foreign government or any
agency thereof, without being lawfully entitled to do so.
On May 14, 1981, as an employee of said companies, Gigantoni went
The former constitutes the crime of usurpation of authority under which
to the office of the Philippine Air Lines (PAL) at Vernida Building,
the petitioner stands charged, while the latter act constitutes the crime
Legaspi Street, Makati, Metro Manila, allegedly to conduct verification
of usurpation of official functions.
of some travels made by Black Mountain's officials. Upon reaching
the said PAL office, he falsely represented himself to the PAL legal
Issue
officer as a PC-CIS agent investigating a kidnapping case, and
Did petitioner knowingly and falsely represent himself as an agent of
requested that he be shown the PAL records particularly the passenger
the CIS, Philippine Constabulary?
manifests for Manila-Baguio-Manila flights covering the period
February 1 to 3 1981.
Petitioner admits that he received a notice of his suspension from the
He explained that he was then at the tracking stage of aforementioned CIS effective June 20, 1980. This admission is supported by the record
kidnapping case. To further convince the PAL officials of his supposed (Annex "D") which shows the letter of Lt. Col. Sabas Edades to
mission, Gigantoni exhibited his Identification card purporting to petitioner, dated June 23, 1980, regarding said action. Said official letter
show that he was a PC-CIS agent. Thereupon, his aforesaid request was also sent to the Commissioner of the Merit Systems Board, Civil
was granted, and PAL legal officer Atty. Conrado A. Boro showed to him Service Commission, the Minister of National Defense and the
the requested PAL records. Gigantoni then secured xerox copies of the Commanding General of the CIS.
requested manifest .and the used PAL tickets of one Cesar (Philippe)
Wong, an SGV auditor, and that of a certain Daisy Britanico, an However, as to petitioner's alleged dismissal effective June 20, 1980, he
employee of Black Mountain. Thereafter, he left the PAL premises. denies having been informed thereof.
The record is bereft of any evidence or proof adduced by the ESTRADA v. DESIERTO
prosecution showing that the dismissal was actually conveyed to 162 SCRA 158
petitioner. That is why the court, in convicting him, relied on the
Facts: 23 January 2001, the Bureau of Internal Revenue (BIR) placed
disputable presumption that official duty has been regularly
Former President Joseph Ejercito Estrada’s (Estrada) foreign currency
performed, that is, that it is presumed that he was duly notified of
deposit account at Citibank Greenhills Branch under constructive
his dismissal.
distraint;
The failure of the prosecution to prove that petitioner was duly notified Contending that the BIR action was unlawful, Estrada a complaint
of his dismissal from the service negatives the charge that he against respondent BIR officials (Deputy Commissioner Lilian Hefti,
"knowingly and falsely" represented himself to be a CIS agent. The Revenue Officer I Archangel A. Albiento and Revenue Officer II Aniceto
constitutional presumption of innocence can only be overturned by T. Dagdag, Jr.) and respondent Citibank officers (Riza P. Del Rosario,
competent and credible proof and never by mere disputable Victor Q. Lim and Catherine Weir) before the Office of the Ombudsman
presumptions, as what the lower and appellate courts did when they for allegedly violating (a) Section 8 of the Foreign Currency Deposits
presumed that petitioner was duly notified of his dismissal by applying Act (Republic Act No. 6426); (b) Article 177 of the Revised Penal Code
the disputable presumption "that official duty has been regularly (Usurpation of authority or official functions) ; Section 3(e) of the Anti-
performed." Graft and Corrupt Practices Act (Rep. Act No. 3019);
It was not for the accused to prove a negative fact, namely, that he did Respondent Lilian Hefti as Deputy Commissioner of BIR was charged
not receive the order of dismissal. In criminal cases, the burden of proof by Estrada for violating Article 177 of the Revised Penal Code on
as to the offense charged lies on the prosecution. Hence, it was Usurpation of authority or official functions. The rest of the public
incumbent upon the prosecution to establish by positive evidence respondents and all the private respondents were merely charged in
the allegation that the accused falsely represented himself as a CIS conspiracy with the said respondent.
agent, by presenting proof that he knew that he was no longer a
CIS agent, having been duly notified of his dismissal. It is essential Estrada claims that the power to issue a notice of distraint can only be
to present proof that he actually knew at the time of the alleged exercised by the Commissioner of the BIR and not any other officer of
commission of the offense that he was already dismissed from the the BIR.
service. A mere disputable presumption that he received notice of
his dismissal would not be sufficient. Issue:
Whether or not respondent Hefti being the Deputy Commissioner of BIR
The Solicitor General has argued in his memorandum, that it makes no had indeed usurped the duty of the BIR Commissioner when she issued
difference whether the accused was suspended or dismissed from the the notice of distraint.
service, "for both imply the absence of power to represent oneself as
vested with authority to perform acts pertaining to an office to which he Under Art. 177 of the Revised Penal Code, for one to be held liable for
knowingly was deprived of ". Usurpation of Official Function, there must be a clear showing that the
person being charged had performed an act pertaining to any person
in authority or public officer of the Philippine government or any
SOLGEN’S CONTENTION: The observation of the Solicitor General is
agency thereof, under pretense of official position, and without being
correct if the accused were charged with usurpation of official function
lawfully entitled to do so.
(second part of Article 177), but not if he is charged merely with
usurpation of authority (first part of Article 177).
In the case: Hefti was designated as Officer in charge of the BIR hence
it necessarily follows that Hefti can now legally exercise the duties and
The information charges the accused with the crime of usurpation of functions pertaining to the BIR Commissioner, including the issuance of
authority for "knowingly and falsely representing himself to be an a constructive distraint.
officer, agent or representative of any department or agency of the
Philippine Government." While it is true that under Sec. 206 of the NIRC as amended, the
Commissioner of the BIR and not any Officer of the BIR was the one
Petitioner is not accused of usurpation of official functions. It has not granted with the power to issue a notice of distraint, it bears to stress,
been shown that the information given by PAL to the accused was however, that when respondent Hefti exercised such function of the BIR
confidential and was given to him only because he was entitled to it as Commissioner, she was then designated Officer In-Charge of the BIR by
part of the exercise of his official function. He was not charged in the President Gloria Macapagal-Arroyo, as evidenced by a photocopy of
information for such an offense. her Memorandum of Appointment dated January 23, 2001.
In fact, it appears from the record of the case that the information, By virtue of her appointment as Officer-In-Charge of BIR, it necessary
which was not claimed to be secret and confidential, was readily made follows that respondent Hefti can now legally exercise the duties and
available to the accused because PAL officials believed at the time that functions pertaining to the BIR Commissioner, including the issuance of
he was a CIS agent. And this was the only offense with which he was a constructive distraint. Whether the issuance of the notice of distraint
charged in the information, that he knowingly and falsely represented is valid or not, such issue is no longer within the power of this Office to
himself to be a CIS agent. decide inasmuch as the power to review the decision of the BIR
Commissioner on matters of distraint lies within the jurisdiction of the
Court of Tax Appeals.
HELD: Premises considered, the decision of the respondent Appellate
Court affirming the judgment of conviction of the Regional Trial Court Suffice it to say that when respondent Hefti issued the notice of
is reversed and set aside. Petitioner-accused, Melencio Gigantoni y distraint, she was clothed with authority to issue the same in view of
Javier is hereby acquitted of the crime charged. her appointment as the then Officer-In Charge of the BIR. Hence, the
charge for Usurpation of Official Function does not apply to said
respondent.
Hefti’s acts enjoy the presumption of legality, Signing Fictitious Name in An Application for Passport is
validity, and regularity Publicly Using Such Fictitious Name
As the officer-in-charge of the BIR duly-designated by the The signing of a fictitious name, i.e., Toribio Jalijali, instead of
President, respondent Hefti was the incumbent head of BIR. By To Lee Piu, in an application for passport, is publicly using a
operation of law, she was the possessor of the office of the fictitious name.
Commissioner by virtue of her lawful designation and was thus
legally authorized to discharge the duties of such office (cf. To Evade the Execution of Judgment
Black’s Law Dictionary, 6th Ed., at 768). Or Conceal a Crime
Where a person takes the place of another who has been
In other words, she was authorized to temporarily act as the head convicted by final judgment, he is guilty of using a fictitious
of the said bureau until the appointment of the regular name punishable under Art. 178, and not of evasion of the
Commissioner. Her official acts as the duly-designated head of service of the sentence, because the real convict alone is guilty
the BIR are deemed as acts of the bureau’s Commissioner, and thereof.
enjoy the presumptions of legality, validity and regularity.
It seems that such person is also liable for delivering prisoners
No Usurpation of Authority; Therefore, No Conspiracy from jail under Art. 156, by helping the escape of the real
With the establishment of respondent Hefti’s authority in the issuance convict by other means.
of the constructive distraint, the subsequent act of respondent Dagdag
in serving the said distraint to the Citibank, as well as the act of
respondents Equillos and Albiento in witnessing the service of the same
The prisoner who is replaced must necessarily use the name of
to the said bank, cannot be construed as act in agreement to commit another, and in this case he is also guilty of using a fictitious
the crime of Usurpation of Authority in the light of the foregoing name to evade the execution of the judgment against him. And
discussion. the one who takes his place has to use a fictitious name to
conceal the crime of delivering a prisoner from jail.
The same thing holds true to the bank officers who were made
respondents in this case, considering that their act in informing ELEMENTS OF CONCEALING TRUE NAME
complainant regarding the existence of the constructive distraint as well
1. That the offender conceals –
as in implementing the said distraint against the latter’s account with
the said bank, [were] merely in compliance to an order issued by a
a. His true name; and
competent authority. b. All other personal circumstances
2. That the purpose is only to conceal his identity.
Article 178. Using fictitious name and concealing true
name. – The penalty of arresto mayor and a fine not to Use of Fictitious Name Concealing True Name
exceed One hundred thousand pesos (P100,000) shall be The element of publicity That element is not
imposed upon any person who shall publicly use a must be present necessary
fictitious name for the purpose of concealing a crime, The purpose in use of The purpose is to merely
evading the executing of a judgment or causing damage. fictitious name is any of conceal identity
those three enumerated (to
Any person who conceals his true name and other conceal crime, to evade the
personal circumstances shall be punished by arrest execution of a judgment, or
menor or a fine not to exceed Forty thousand pesos to cause damage);
(P40,000)
USE OF UNREGISTERED ALIASES
ELEMENTS OF USING FICTITIOUS NAME Commonwealth Act No. 142, as amended by RA 6085 reads:
1. That the offender uses a name other than his real
name. Section 1. Except as pseudonym solely for literary, cinema, television,
radio or other entertainment purposes and in athletic events where the
2. That he uses that fictitious name publicly.
use of pseudonym is a normally accepted practice, no person shall use
3. That the purpose of the offender is –
any name different from the one with which he was registered at birth
a. To conceal a crime; in the office of the local civil registry, or with which he was registered in
b. To evade the execution of a judgment; or the bureau of immigration upon entry; or such substitute name as may
c. To cause damage to public interest have been authorized by a competent court: Provided, That persons,
whose births have not been registered in any local civil registry and who
What is a fictitious name? have not been baptized, have one year from the approval of this Act
Any other name which a person publicly applies to himself within which to register their names in the civil registry of their
residence. The name shall comprise the patronymic name and one or
without authority of law is a fictitious name.
two surnames.
Causing damage Must be to Public Interest Section 2. Any person desiring to use an alias shall apply for authority
If the purpose is for causing damage, it must be damage to therefor in proceedings like those legally provided to obtain judicial
public interest. If it is damage to private interest, the crime will authority for a change of name, and no person shall be allowed to
be estafa under Art. 315, subdivision 2, par. (a). secure such judicial authority for more than one alias. The petition for
an alias shall set forth the person's baptismal and family name and the
name recorded in the civil registry, if different, his immigrant's name, if been known since childhood, or such substitute name as may have
an alien, and his pseudonym, if he has such names other than his been authorized by a competent court.
original or real name, specifying the reason or reasons for the use of
the desired alias. The judicial authority for the use of alias, the christian Aside from the name “Ong Hock Lian,” appellee is using the alias “Julian
name and the alien's immigrant name shall be recorded in the proper Ong.” There is no evidence that appellee has been baptized with the
local civil registry, and no person shall use any name or names other latter name or that he has been known by it since childhood, or that the
than his original or real name unless the same is or are duly recorded court has authorized the use thereof. Appellee has therefore committed
in the proper local civil registry. a violation of the Anti-Alias Law.
Section 3. No person having been baptized with a name different from Held: The appeal is granted, and the assailed judgment is reversed, and
that with which he was registered at birth in the local civil registry, or in the petition is denied, with costs.
case of an alien, registered in the bureau of immigration upon entry, or
any person who obtained judicial authority to use an alias, or who uses LEGAMIA v. IAC (1984)
a pseudonym, shall represent himself in any public or private 131 SCRA 478
transaction or shall sign or execute any public or private document
without stating or affixing his real or original name and all names or Information:
aliases or pseudonym he is or may have been authorized to use. That on or about November 4th, 1974, and for some time prior
and subsequent thereto, in the City of Manila, Philippines, the
said accused did then and there willfully and unlawfully use the
CASES UNDER USING FICITIOUS NAME
substitute or alias name CORAZON L. REYES, which is different
from Corazon Legamia y Rivera with which she was christened
HOCK LIAN v. REPUBLIC (1966) or by which she has been known since childhood, nor as a
17 SCRA 188 pseudonym for literary purpose and without having been
Facts: This case is an appeal Solicitor General on the decision of CFI previously authorized by a competent Court to do so. It was
Negros Occidental granting the petition of naturalization by Ong Hock discovered only on or about November 4th, 1974
Lian alias Julian Ong.
Facts: Corazon Legamia lived with Emilio N. Reyes for 19 years (from
Appellant contends that the lower court erred on the following: November 8, 1955 to September 26, 1974). Until Emilio died in 1974.
1. Holding that the petition was published in a newspaper of During their live-in arrangement they produced a boy who was named
general circulation. Michael Raphael Gabriel L. Reyes. He was born on October 18, 1971.
2. In not holding that appellee uses an alias without court
authority and in violation of the Anti-Alias law. From the time Corazon and Emilio lived together until the latter’s death,
3. In not holding that appellee had failed to report his true Corazon was known as Corazon L. Reyes; she styled herself as Mrs.
income Reyes; and Emilio introduced her to friends as Mrs. Reyes. Emilio was
4. And in not holding that appellee has no lucrative occupation. Branch Claim Manager, Naga Branch, of the Agricultural Credit
Administration when he died. On October 29, 1974, or shortly after
Appellee, a citizen of Republic of China, arrived in the Philippine on Emilio’s death, Corazon filed a letter claim in behalf of Michael with the
April 30, 1927. He used to reside in Zamboanga City but since March 1, Agricultural Credit Administration for death benefits. The letter was
1940, he has been living in Dumaguete City. He is married to Tan Ko signed “Corazon L. Reyes.”
Kiem, also known as Alice Tan, a Chinese national, with three children
two of which are enrolled at St. Paul’s College. Appellee himself finished The voucher evidencing payment of Michael’s claim in the amount of
his first year high school education at the Zamboanga Chinese High P2, 648.76 was also signed “Corazon L. Reyes.” For using the name
School, Zamboanga City. He speaks the English language and the Reyes although she was not married to Emilio, Felicisima Reyes who
Cebuano-Visayan dialect. was married to Emilio filed a complaint which led to Corazon’s
prosecution. Parenthetically, the amount paid to Michael is “equivalent
A merchant by occupation, he has a store in Colon Street, Dumaguete to 2/5 of that which is due to each legitimate child in accordance with
City, where he sells rice, corn and general merchandise. He has two the provisions of the Civil Code” per advice given by Atty. Diomedes A.
cargo trucks worth P17,000 and office equipment worth about P200. Bragado of the Agricultural Credit Administration to Felicisima.
His net income was P5,939.36 in 1958; P4,114.49 in 1959, and P5,659.30
in 1960. Issue
Whether or not the petitioner violated law in light of the
To prove that he has none of the disqualifications enumerated in the facts above stated.
Naturalization Law, he presented tax and police clearances; clearances
from the Philippine Constabulary, the City Fiscal, the Provincial Fiscal, Discussion: No. It is not uncommon in Philippine society for a woman
the Court of First Instance of Negros Oriental and the Municipal Court to represent herself as the wife and use the name of the man she is
of Dumaguete City; and a medical certificate of the City Health Officer. living with despite the fact that the man is married to another woman.
The practice, to be sure, is not encouraged but neither is it unduly
Main Issue frowned upon.
Whether or not the lower court erred in not finding that appellee uses
an alias without court authority and in violation with the Anti-Alias law. A number of women can be identified who are living with men
prominent in political, business and social circles. The woman publicly
Discussion: Yes. Appellee indeed has committed a violation. holds herself out as the man’s wife and uses his family name blithely
ignoring the fact that he is not her husband. And yet none of the
On the Use of Aliases and Pseudonym: Under the law, except as a women has been charged of violating the C.A. No. 142 because ours is
pseudonym for literary purposes, no person shall use any name not a bigoted but a tolerant and understanding society. It is in the light
different from the one with which he was christened or by which he has of our cultural environment that the law must be construed.
In the case: Corazon had been living with Emilio for almost 20 years. He Limson was motivated by malice and ill will, and her charges were the
introduced her to the public as his wife and she assumed that role and product of prevarication; and that he was a distinguished architect and
his name without any sinister purpose or personal material gain in a respected member of the community and society.
mind. She applied for benefits upon his death not for herself but for
Michael who as a boy of tender years was under her guardianship. Issue:
Surely, the lawmakers could not have meant to criminalize what Whether or not Gonzalez is guilty of falsification.
Corazon had done especially because some of them probably had their
own Corazons. COURT’S FINDINGS: No. The appeal has no merit.
HELD: WHEREFORE, the decision under review is hereby set aside; the On the Evidence
petitioner is acquitted of the charge. No costs. the discrepancy between photographs supposedly taken in 1941 and
in 1996 of respondent did not support Limson’s allegation of grave
LIMSON v. GONZALEZ (2014) abuse of discretion on the part of the Secretary of Justice. It is really
720 SCRA 246 absurd to expect respondent, the individual depicted on the
photographs, to look the same after 55 long years.
Facts: On December 1, 1997, Limson filed a criminal charged
against Gonzales for falsification, before the Prosecutor’s Office of On the Issue of Alleged Use of Illegal Aliases
Mandaluyong City. The charge for falsification is based in the records The Court observes that respondent’s aliases involved the names
of PRC that a certain “EUGENIO GONZALES’ is registered as an “Eugenio Gonzalez”, “Eugenio Gonzales”, “Eugenio Juan Gonzalez”,
architect and that Gonzales, who uses, among other than name of “Eugenio Juan Gonzalez y Regalado”, “Eugenio C.R. Gonzalez”, “Eugenio
“EUGENIO JUAN GONZALES” who pretends to be said architect. J. Gonzalez”, and – per Limson – “Eugenio Juan Robles Gonzalez.” But
Registered with the PRC is an impostor and therefore guilty of these names contained his true names, albeit at times joined with an
falsification. erroneous middle or second name, or a misspelled family name in one
instance.
COUNTER-AFFIDAVIT: Gonzales explained that his full name is EUGENIO
The records disclose that the erroneous middle or second names, or the
(first given name) JUAN (second given name) GONZALEZ (father’s
misspelling of the family name resulted from error or inadvertence left
family name) y REGALADO (mother’s family name). He alleges that in
unchecked and unrectified over time. What is significant, however, is
his youth, while he was still in grade school and high school, he used
that such names were not fictitious names within the purview of the
the name EUGENIO GONZALEZ y REGALADO and/or EUGENIO
Anti–Alias Law; and that such names were not different from each other.
GONZALEZ and that thereafter, he transferred to UST and took up
Considering that he was not also shown to have used the names for
architecture and that upon commencement of his professional practice
unscrupulous purposes, or to deceive or confuse the public, the
in 1943, he made use of his second name JUAN.
dismissal of the charge against him was justified in fact and in law.
Consequently, in his profession practice he has identified himself as
Alias, defined
much as possible as Arch. Eugenio Juan Gonzalez, because the
An alias is a name or names used by a person or intended to be used
surname Gonzalez was a common surname throughout the Philippines,
by him publicly and habitually, usually in business transactions, in
and he wanted to distinguish himself with his second name JUAN.
addition to the real name by which he was registered at birth or
baptized the first time, or to the substitute name authorized by a
Secretary of Justice denied petition of the dismissal by the prosecutor.
competent authority; a man’s name is simply the sound or sounds by
CA dismissed the petition.
which he is commonly designated by his fellows and by which they
distinguish him, but sometimes a man is known by several different
Limson’s Arguments
names and these are known as aliases. An alias is thus a name that is
She insists that the names “Eugenio Gonzalez” and “Eugenio Juan
different from the individual’s true name, and does not refer to a name
Gonzalez y Regalado” did not refer to one and the same individual; and
that is not different from his true name.
that respondent was not a registered architect contrary to his claim.
According to her, there were material discrepancies between the
For a bit of history, the enactment of C.A. No. 142 as
CA 142 Rationale:
graduation photograph of respondent taken in 1941 when he earned
amended was made primarily to curb the common practice among the
his degree in Architecture from the University of Sto. Tomas, Manila,
Chinese of adopting scores of different names and aliases which
and another photograph of him taken for his driver’s license in 1996,
created tremendous confusion in the field of trade. Such a practice
arguing that the person in the latter photograph was not the same
almost bordered on the crime of using fictitious names which for
individual depicted in the 1941 photograph.
obvious reasons could not be successfully maintained against the
Chinese who, rightly or wrongly, claimed they possessed a thousand
She submits documents showing that respondent used aliases from
and one names. CA. No. 142 thus penalized the act of using an alias
birth, and passed himself off as such persons when in fact he was not.
name, unless such alias was duly authorized by proper judicial
She prays that the decision of the CA be set aside, and that the proper
proceedings and recorded in the civil register.
criminal cases for falsification of public document and illegal use of alias
be filed against respondent.
HELD: The “alleged falsification of names” were just variation of
Gonzalez name for it was not made in a fictitious manner. The Court
Gonzalez’ Comment
DENIES the petition for review on certiorari; AFFIRMS the decision
He counters that the petition for review should be denied due course
promulgated on July 31, 2003; and ORDERS petitioner to pay the costs
for presenting only factual issues; that the factual findings of the OCP,
of suit.
the Secretary of Justice, and the CA should remain undisturbed; that he
did not commit any falsification; that he did not use any aliases.
That his use of conflicting names was the product of erroneous entry,
inadvertence, and innocent mistake on the part of other people; that
Article 179. Illegal use of uniforms and insignia. – The ELEMENTS OF FALSE TESTIMONY AGAINST DEFENDANT
penalty of arresto mayor shall be imposed upon any 1. That there be a criminal proceeding.
person who shall publicly and improperly makes use of 2. That the offender testifies falsely under oath against
any insignia, uniforms, or dress pertaining to an office the defendant therein.
not held by such person to class of persons of which he 3. That the offender who gives false testimony knows
is not a member. that it is false.
4. That the defendant against whom the false testimony
ELEMENTS OF ILLEGAL USE OF UNIFORMS OR INSIGNIA is given is either acquitted or convicted in a final
1. That the offender makes use of insignia, uniform or judgment.
dress.
2. That the insignia, uniform or dress pertains to an office NOTE: Defendant must be sentenced at least to:
not held by the offender or to a class of persons of (a) Correctional penalty
which he is not a member. (b) Fine
3. That said insignia, uniform or dress is used publicly (c) Must be acquitted
and improperly.
Witness Who Gave False Testimony is Liable Even if
Wearing Uniform of an Imaginary Office, Not Punishable Testimony was Not Considered by the Court
Note that the second element requires that the insignia, Since the law punishes the false witness even if the defendant
uniform or dress pertains to an office or class of persons. Hence, in the principal case is acquitted, it would seem that the law
if such pertains to non-existent office not violation. intends to punish the mere giving of false testimony.
NOTE: An exact imitation of a uniform or dress is unnecessary. Article 181. False testimony favorable to the defendant.
It is also punished under RA 75 when foreign state regalia is – Any person who shall give false testimony in favor of
used. EO 297 punishes illegal manufacture, sale, distribution the defendant in a criminal case, shall suffer the
and use of PNP uniforms. penalties of arresto mayor in its maximum period to
prision correccional in its minimum period and a fine not
Section Two – False Testimony to exceed Two hundred thousand pesos (P200,000), if
the prosecution is for a felony punishable by an afflictive
False Testimony, Defined penalty, and the penalty of arresto mayor in any other
False testimony is committed by a person who, being under case.
oath and required to testify as to the truth of a certain matter
at a hearing before a competent authority, shall deny the truth False Testimony in Favor of Defendant
or say something contrary to it. • Need not directly influence the decision of acquittal
• Need not benefit the defendant, it is sufficient that the
Three Forms of False Testimony false testimony was given with intent to favor the
1. False testimony in criminal cases (180 and 181) defendant.
2. False testimony in civil cases (182)
3. False testimony in other cases (183) Conviction or Acquittal of Defendant
in Principal Case, Not Necessary
Article 180. False testimony against a defendant. – Any Note that under Art. 181, it is sufficient that the defendant in
person who shall give false testimony against the the principal case is prosecuted for a felony punishable by
defendant in any criminal case shall suffer: afflictive penalty or by other penalty.
1. The penalty of reclusion temporal, if the
defendant in said case have been sentenced to But the gravity of the crime for which the defendant was
death; prosecuted in the case where the false testimony was given
2. The penalty of prision mayor, if the defendant should be shown in order to determine the proper penalty to
shall have been sentenced to reclusion temporal be imposed on the false witness.
or reclusion perpetua;
3. The penalty of prision correccional, if the The Defendant Who Falsely Testifies on His Own Behalf in
defendant shall have been sentenced to any Criminal Case is Guilty of False Testimony under Article 181
other afflictive penalty; and It would seem that the ruling in the Soliman case should apply
4. The penalty of arresto mayor, if the defendant only when, as in that case, the defendant voluntarily goes upon
shall have been sentenced to a correctional the witness stand and falsely imputes to some other person the
penalty or a fine, or shall have been acquitted. commission of a grave offense.
In case provided in subdivisions 3 and 4 of this article the If he merely denies the commission of the crime or his
offender shall further suffer a fine not to exceed Two participation therein, he should not be prosecuted for false
hundred thousand pesos (P200,000). testimony. (US v. Soliman, 36 Phil. 5).
Rectification Made Spontaneously After Realizing the Article 183. False testimony in other cases and perjury in
Mistake is NOT False Testimony solemn affirmation. – The penalty of arresto mayor in its
On direct examination, the witness stated that the accused told maximum period to prision correccional in its minimum
him to get up for he had killed a person. On cross-examination, period shall be imposed upon any person who,
the witness changed his testimony and stated he did not hear knowingly making untruthful statements and not being
clearly what the accused said. included in the provisions of the next preceding articles,
shall testify under oath, or make an affidavit, upon any
Held: The witness is not liable, there being no sufficient material matter before a competent person authorized
evidence that he acted with malice or with criminal intent to to administer an oath in cases in which the law so
testify falsely. (People vs. Ambal, 69 Phil. 710) This is also requires.
considered spontaneous desistance.
Any person who, in case of a solemn affirmation made in
Article 182. False testimony in civil cases. – Any person lieu of an oath, shall commit any of the falsehoods
found guilty of a false testimony in a civil case shall mentioned in this and the three preceding articles of this
suffer the penalty of prision correccional in its minimum section shall suffer the respective penalties provided
period and a fine not to exceed One million two hundred therein.
thousand pesos (P1,200,000) if the amount in
controversy shall exceed One million pesos (P1,000,000), Two Ways of Committing Perjury
and the penalty of arresto mayor in its maximum period 1. By falsely testifying under oath; and
to prision correccional in its minimum period and a fine NOTE: Should not be in a judicial proceeding
not to exceed Two hundred thousand pesos (P200,000), 2. By making a false affidavit.
if the amount in controversy shall not exceed said
amount or cannot be estimated. ELEMENTS OF PERJURY
1. That the accused made a statement under oath or
ELEMENTS OF FALSE TESTIMONY IN CIVIL CASES executed an affidavit upon a material matter;
1. That the testimony must be given in a civil case. 2. That the statement or affidavit was made before a
2. That the testimony must relate to the issues presented competent officer authorized to receive and
in said case. administer oath;
3. That the testimony must be false. 3. That in that statement or affidavit, the accused made
4. That the false testimony must be given by the a willful and deliberate assertion of a falsehood;
defendant knowing the same to be false. 4. That the sworn statement or affidavit containing the
5. That the testimony must be malicious and given with falsity is required by law.
an intent to affect the issues presented in said case.
Statement Under Oath – As basis of Charge of Perjury
Article 182 is Not Applicable When False Testimony is B made a statement falsely charging O with estafa, that is, that
Given in Special Proceedings the latter borrowed from him an English manuscript entitled
Art. 182 applies only to ordinary civil cases, as contemplated "Manual of Exercises on Correcting Everyday Errors," and that
in Section 1, Rule 2 of the Rules of Court, and does not apply to when he demanded its return, O denied having received it. B
special proceedings, such as the summary settlement of estates made it under oath in the preliminary investigation before the
of small value, under Section 2 Rule 74, of the Rules of Court, Justice of the Peace, a competent officer authorized to
which may fall under the category of "other cases" administer oath. B's statement constitutes a material matter
contemplated in Art. 183. and is a deliberate falsehood, because O never borrowed the
manuscript. Held: B is guilty of perjury.
The Revised Penal Code punishes, among other acts, the giving
of false testimony either against or in favor of the defendant in False Affidavit – As the basis of Charge of Perjury
a criminal case (Arts. 180 and 181); false testimony in a civil case, The accused Rufo B. Cruz filled up an application blank (Civil
the penalty being made dependent upon "the amount in Service Form No. 2) for the patrolman examination. He stated
controversy" (Art. 182); and false testimony in other cases therein that he had never been accused, indicted or tried for
"upon any material matter.: (Art. 183) violation of any law, ordinance or regulation before any court,
when in truth and in fact, as the accused well knew, he had been
On the other hand, the Rules of Court comprises four parts: Part prosecuted and tried before the Justice of the Peace Court of
I, on Civil Actions; Part II, on Special Proceedings; Part III, on Cainta, Rizal, for different crimes. The application was signed
Criminal Procedure; and Part IV, on General Provisions. Section and sworn to by him before the municipal mayor of Cainta,
1, Rule 2, defines "actions" (civil) as "an ordinary suit in a court Rizal.
of justice, by which one party prosecutes another for the
enforcement or protection of a right, or the prevention or Held: The crime committed is perjury. The offense as defined in
redress of a wrong," and says, further, that "every other remedy Art. 183 of the Revised Penal Code is the willful and corrupt
is a special proceeding." (People vs. Hernandez, C.A., 67 O.G. assertion of a falsehood under oath or affirmation administered
8330) by authority of law on a material matter.
Material Matter, Defined Not Being Included in the Provision

It is the main fact which is the subject of the inquiry or any of the Next Preceding Articles
circumstance which tends to prove that fact, or any fact or This phrase indicates that perjury is a crime other than false
circumstance which tends to corroborate or strengthen the testimony in criminal cases or false testimony in civil cases,
testimony relative to the subject of inquiry, or which which are perversions of truth in judicial proceedings.
legitimately affects the credit of any witness who testifies.
• There must be competent proof of materiality Perjury is an offense which covers false oaths other than those
taken in the course of judicial proceedings. (U.S. vs. Estrana, 16
Material – when it is directed to prove a fact in issue Phil. 521)
Relevant – when it tends in any reasonable degree to establish
the probability or improbability of a fact in issue False testimony before the justice of the peace or fiscal during
Pertinent – when it concerns collateral matters which make the preliminary investigation may give rise to the crime of
more or less probable to the proposition at issue. perjury, because false testimony in judicial proceedings
contemplates an actual trial where a judgment of conviction or
No Perjury If Sworn Statement is Not Material to the acquittal is rendered.
Principal Matter Under Investigation
In a prosecution under Art. 183, the information alleges that the Are two contradictory sworn statements sufficient to
accused, "knowingly making untruthful statements, made and convict of perjury?
subscribed to an affidavit before the Register of Deeds, who is No. The prosecution must prove of which of the two statements
authorized by law to receive and administer oaths, upon facts is false, and must show that statement to be false by other
pertinent to the issuance of an order of the Court of First evidence than the contradictory statement.
Instance of Tarlac for the purpose of causing the Register of
Deeds to issue him a new copy of his title No. 201, knowing SUBORNATION OF PERJURY
such facts stated by him in the affidavit to be false." Subornation of perjury is committed by a person who knowingly
and willfully procures another to swear falsely and the witness
Held: In order that perjury could exist, it is necessary that the suborned does testify under circumstances rendering him
false statement of the accused refers to material matter and not guilty of perjury.
merely to facts pertinent to the case in connection with which
it was made. NOTE: Subornation of perjury is not expressly penalized in the
Revised Penal Code; but the direct induction of a person by
The Assertion of Falsehood Must be Willful and Deliberate another to commit perjury may be punished under Art. 183 in
Note the phrase "knowingly making untruthful statements" in relation to Art. 17.
Art. 183. This is the basis of the third element of the crime of
perjury. The word knowingly suggests that the assertion of Article 184. Offering false testimony in evidence. – Any
falsehood must be willful and deliberate. person who shall knowingly offer in evidence a false
witness or testimony in any judicial or official
Hence, there is no perjury through negligence or imprudence proceeding, shall be punished as guilty of false
testimony and shall suffer the respective penalties
DEFENSE: Good faith or lack of malice. provided in this section.
FOURTH ELEMENT – Is it necessary that there be a specific ELEMENTS OF OFFERING FALSE TESTIMONY IN EVIDENCE
provision of law requiring the affidavit or sworn statement 1. That the offender offered in evidence a false witness
to be made in the particular cases or false testimony.
To induce the clerk in the office of the municipal treasurer to 2. That he knew the witness or that the testimony was
issue a certificate of transfer of some large cattle, the accused false.
executed an affidavit wherein the latter swore falsely that he 3. That the offer was made in a judicial or official
was authorized by its owner to sell it. proceeding.
Held: That affidavit could not be made the basis of perjury for “Shall knowingly offer in
the reason that the execution or filing of such an affidavit was evidence a false witness or testimony”
not required by law. Offer of evidence under Sec. 35, Rule 132 of the Rules of Court,
insofar as testimonial evidence is concerned, begins the
Examples of Cases Where Affidavits Are Required by Law moment a witness is called to the witness stand and
1. Affidavit attached to the petition for receivership interrogated by counsel. The witness must have to testify.
2. Affidavit attached to complaint for ejectment
3. Affidavit for application for marriage license. Is the person who presented a false witness liable under Art.
Hence, even if there is no law, requiring the statement to be made 184, even if the false witness did not testify on any material
under oath, as long as it is made for a legal purpose, it is matter because the latter desisted from testifying?
sufficient.
It seems that the person who called to the stand a false witness CHAPTER THREE
is liable for attempted offering false testimony in evidence. FRAUDS
While Art. 184 speaks of a false "witness" or "testimony," that
article requires to consummate the offense that the witness or Section One. – Machinations, Monopolies, and
the testimony must be offered in evidence. Combinations
Even if there was conspiracy between the false witness and the Article 185. Machination in public auctions. – Any person
party who presented him, the witness having desisted before who shall solicit any gift or promise as a consideration
he could testify on any material matter, he is not liable, because for refraining from taking part in any public auction, and
desistance during the attempted stage of execution is an any person who shall attempt to cause bidders to stay
absolutory cause which exempts him from criminal liability. away from an auction by threats, gifts, promises, or any
other artifice, with intent to cause the reduction of the
The party who presented him, not having desisted, is criminally price of the thing auctioned, shall suffer the penalty of
liable. prision correccional in its minimum period and a fine
ranging from 10 to 50 per centum of the value of the
Article 184 Applies When the Offender Does Not Induce a thing auctioned.
Witness Testify Falsely
Art. 184 contemplates of a case where a person, without Acts Punishable
inducing another, but knowing him to be a false witness, 1. By soliciting any gift or promise as a consideration for
presented him, and the latter testified falsely in a judicial or refraining from taking part in any public auction.
official proceeding. 2. By attempting to cause bidders to stay away from
an auction by threats, gifts, promise or other artifice.
If there is an inducement, Art. 180, Art. 181, Art. 182, or Art. 183,
in relation to Art. 7, par. 2, will apply. ELEMENTS OF SOLICITING GIFT OR PROMISE
1. That there be a public auction.
How do you prove falsity? 2. That the accused solicited any gift or a promise from
The falsity can be of prejudicial question as to the truth of that any of the bidders.
statements, as required by law. 3. That such gift or promise was the consideration for his
refraining from taking part in that public auction.
Offer and Purpose 4. That the accused had the intent to cause the reduction
You show for the presentation of the document, purpose is of the price of the thing auctioned.
important for admissibility of evidence. Hearsay evidence,
shows the impossibility of the cross-examination. If testimony NOTE: It is consummated by mere solicitation. It is not
is offered to prove the truth of that statement. It determines required that the person making the proposal actually refrains.
the admissibility of evidence.
ELEMENTS OF ATTEMPTING TO
Case on Perjury CAUSE BIDDERS TO STAY AWAY
DIAZ v. PEOPLE 1. That there be a public auction.
Falsity in personal data sheet, where he presented he was a 2. That the accused attempted to cause the bidders to
graduate, where in fact he did not finish fourth year. He made stay away from the public auction.
a false claim. Because the PDS was a sworn document. 3. That it was done by threats, gifts, promise or any other
artifice.
He was originally charged with falsification, why did the SC find 4. That the accused had the intent to cause the reduction
him guilty of perjury. of the price of the things auctioned.
Case on Subornation of Perjury “Other Artifice”

PEOPLE v. PADOL Thus, the bidders may be caused to stay away from public
It is still punishable by your participation as a principal by auction by tricks, such as by telling them that the public
inducement. If you induce somebody to commit perjury you are budding would not be held at that time to make them go away,
liable on similar grounds as the principal. knowing that the bidding would not be postponed.
Mere Attempt Consummates the Crime

Likewise, an attempt to cause prospective bidders to stay away
from an auction by means of threats, gifts, promises or any
other artifice with intent that the thing auctioned should
command a lesser price, is sufficient to constitute an offense.
The threat need not be effective, nor the offer or gift accepted
for the crime to arise.
RA 10667 Prohibits Fixing Prices at an Auction 2. Fixing price at an auction or in any form of bidding
Or in Any Form of Bidding including cover bidding, bid suppression, bid rotation
An agreement, between and among competitors, fixing price at and market allocation, and other analogous practices
an auction or in any form of bidding, including cover bidding, of bid manipulation. [bid manipulating]
bid suppression, bid rotation and market allocation and other no need to show the effect
analogous practice of bid manipulation are per se prohibited.
[Section 14(a)(2), RA 10667] B. The following agreements, between or among competitors
which have the object or effect substantially preventing,
Bid Manipulation also called bid rigging or collusive restricting or lessening competition shall be prohibited:
tendering, occurs when business, that would otherwise have 1. Setting, limiting or controlling production, markets,
expected to compete, secretly conspire to raise prices or lower technical development, or investment;
the quality of goods or services for purchasers who wish to 2. Dividing or sharing the market, whether by volume of
acquire products or services through a bidding process. sales or purchases, territory, type of goods or services,
Common bid manipulation practices: buyers or sellers or any other means; [must prove]
1. Bid cover this occurs when individuals or firms agree
to submit bids that involve at least one of the C. Agreements other than those specified in (a) and (b) of this
following: [make it appear there is more than one] section which have the object or effect of substantially
a. Competitor agrees to submit a bid that is preventing, restricting, or lessening competition shall also be
higher than the bid of the designated winner prohibited: Provided, those which contribute to improving the
b. Competitor submits a bid that is known to be production or distribution of goods and services or to
too high to be accepted promoting technical or economic progress, while allowing
c. Competitor submits a bid that contain consumers a fair share of the resulting benefits, may not
special terms that are known to be necessarily be deemed a violation of this Act.
unacceptable to the purchaser
Cover bidding is designed to give the appearance of WHO ARE NOT COMPETITORS: An entity that controls, is
genuine competition. [other bid for sake of bidding] controlled by, or is under common control with another entity
or entities, have common economic interest, and are not
2. Bid suppression schemes involve agreements among otherwise able to decide to act independently of each other,
competitors in which one or more companies agree to shall not be considered as competitors for purposes of this
refrain from bidding or to withdraw a previously section. (Section 14).
submitted bid so that the designated winner’s bid will
be accepted. CRIMINAL PENALTIES
An entity that enters into any anti-competitive agreement as
3. Bid rotation is where conspiring firms continue to bid, covered by Chapter III, Section 14(a) and (b) under this Act shall
but they agree to take turn being the winning bidder. for each and every violation, be penalized by imprisonment
from two to seven years, and a fine of not less than P50M but
4. Market allocation is where competitors carve up the not more than P250M. The penalty of imprisonment shall be
market and agree not to compete for certain imposed upon the responsible officers, and directors of the
customers or in certain geographic areas. entity. [only applies to competitors]
When the entities involved are juridical persons, the penalty of

Article 186. Monopolies and combinations in restraint of imprisonment shall be imposed on its officers, directors, or
trade. Xxx (Philippine Competition Act) employees holding managerial positions who are knowingly
and willfully responsible for such violation (Section 30).
Article 186 has been Repealed by RA 10667
However, violations of Article 186 committed before the Agreement, Defintion
effectivity of the law may continue to be prosecuted unless the Agreement refers to any type or form of contract, arrangement,
same have been barred by prescription, and subject to the understanding, collective recommendation, or concerted
procedure under Section 31 of RA 10667. Where it requires that action, whether formal or informal, explicit or tacit, written or
there be a fact-finding or preliminary inquiry by the Philippine oral (Section 4[b], RA 10667].
Competition Commission for the enforcement of the Act. If
evidence so warrant the Commission may file before DOJ. Entity refers to any person, natural or juridical, sole
proprietorship, partnership, combination or association in any
ANTI COMPETITIVE AGREEMENTS UNDER RA 10667 form, whether incorporated or not, domestic or foreign, GOCC
engaged directly/indirectly with economic activity.
A. The following agreements, between among competitors, are
per se prohibited: [Prohibited Per Se] Leniency Program
1. Restricting competition as to price, or components The Commission shall develop a Leniency Program to be
there, or other terms of trade. granted to any entity in the form of immunity from suit or
reduction of any fine which would otherwise be imposed on a Nothing in this section shall preclude prosecution for entities
participant in an anti-competitive agreement as provided in that report to the Commission false, misleading, or malicious
Section 14(a) and 14(b) of this Act in exchange for the voluntary information, data or documents damaging to the business or
disclosure of information regarding such an agreement which integrity of the entities under inquiry as a violation of said
satisfies specific criteria prior to or during the fact-finding or section. An entity found to have reported false, misleading or
preliminary inquiry stage of the case. malicious information, data, or document may be penalized by
a fine not less than the penalty imposed in the section reported
Immunity from suit will be granted to an entity reporting illegal to have been violated by the entity complained of.
anti-competitive activity before a fact-finding or preliminary
inquiry has begun if the following conditions are met: The DOJ-OFC may likewise grant leniency or immunity as
provided in this section in the event that there is already a
(a) At the time the entity comes forward, the preliminary investigation pending before it.
Commission has not received information about the
activity from any other source; Property is Forfeited to the Government
Any property possessed under any contract or combination
(b) Upon the entity’s discovery of illegal activity, it took contemplated in this article, shall be forfeited to the
prompt and effective action to terminate its Government.
participation therein;
ILLEGAL ACTS OF PRICE MANIPULATION
(c) The entity reports the wrongdoing with candor and RA 7581 or the Price Act approved in 1992, declares it unlawful
completeness and provides full, continuing, and for any person habitually engaged in the production,
complete cooperation throughout the investigation; manufacture, importation, storage, transport, distribution, sale
and or other methods of disposition of goods to engage in the
following acts of price manipulation of the price of any basic
necessity or prime commodity:
(d) The entity did not coerce another party to
participate in the activity and clearly was not the
(1) Hoarding
leader in, or the originator of, the activity.
(a) The undue accumulation by a person or combination
of persons of any basic commodity beyond his or their
Even after the Commission has received information about the normal inventory levels;
illegal activity after a fact-finding or preliminary inquiry has (b) The unreasonable limitation or refusal to dispose of,
commenced, the reporting entity will be granted leniency, sell or distribute the stocks of any basic necessity or
provided preceding conditions (b) and (c) and the following prime commodity to the general public; or
additional requirements are complied with: (c) The unjustified taking out of any basic necessity or
prime commodity from the channels of reproduction,
(1) The entity is the first to come forward and qualify trade commerce and industry.
for leniency;
(2) Profiteering: the sale or offering for sale of any basic
(2) At the time the entity comes forward, the necessity or prime commodity at a price grossly in excess of its
Commission does not have evidence against the entity true worth.
that is likely to result in a sustainable conviction; and
(3) Cartel: Any combination of or agreement between two or
(3) The Commission determines that granting leniency more persons engaged in the production, manufacture,
would not be unfair to others. processing, storage, supply, distribution, marketing, sale, or
disposition of any basic necessity or prime commodity
Such program shall include the immunity from any suit or designed to artificially and unreasonably increase or
charge of affected parties and third parties, exemption, waiver, manipulate its price.
or gradation of fines and/or penalties giving precedence to the
entity submitting such evidence. Any person who commits any act of illegal price manipulation
of any basic necessity or prime commodity shall suffer the
penalty of imprisonment for a period of not less than five
An entity cooperating or furnishing information, document or
years nor more than 15 years, and shall be imposed of a fine
data to the Commission in connection to an investigation being
not less than P5,000 nor more than P2,000,000.
conducted shall not be subjected to any form of reprisal or
Section Two. – Frauds in Commerce and Industry
discrimination. Such reprisal or discrimination shall be
considered a violation of this Act subject to the sanctions
Article 187. Importation and disposition of falsely
provided in this Act.
marked articles or merchandise made of gold, silver, or
other precious metals or their alloys. – The penalty of
prision correccional or a fine ranging from Forty INFRINGEMENT (Section 155)

thousand pesos (P40,000) to Two hundred thousand Infringement is committed by any person who shall, without
pesos (P200,000), or both, shall be imposed upon any the consent of the owner of the registered mark:
person who shall knowingly import or sell or dispose of 1. Use in commerce any reproduction, counterfeit, copy,
any article or merchandise made of gold, silver, or other or colorable imitation of a registered mark or the same
precious metals, or their alloys, with stamps, brands, or container or a dominant feature thereof in connection
marks which fail to indicate the actual fineness or quality with the sale, offering for sale, distribution, advertising
of said metals or alloys. of any goods or services including other preparatory
steps necessary to carry out the sale of any goods or
Any stamp, brand, label, or mark shall be deemed to fail services on or in connection with which such use is
to indicate the actual fineness of the article on which it likely to cause confusion, or to cause mistake, or to
is engraved, printed, stamped, labeled, attached, when deceive; or
the test of the article shows that the quality or fineness
thereof is less by more than one-half karat, if made of 2. Reproduce, counterfeit, copy or colorably imitate a
gold, and less by more than four one-thousandth, if registered mark or a dominant feature thereof and
made of silver, than what is shown by said stamp, brand, apply such reproduction, counterfeit, copy or
label or mark. But in case of watch cases and flatware colorable imitation to labels, signs, prints, packages,
made of gold, the actual fineness of such gold shall not wrappers, receptacles or advertisements intended to
be less by more than three one-thousandth than the be used in commerce upon or in connection with the
fineness indicated by said stamp, brand, label or mark. sale, offering for sale, distribution, or advertising of
goods or services on or in connection with which such
Articles or Merchandise Involved use is likely to cause confusion, or to cause mistake, or
Those made of to deceive, shall be liable in a civil action for
1. Gold infringement by the registrant for the remedies
2. Silver hereinafter set forth: Provided, That the infringement
3. Other precious metals, or takes place at the moment any of the acts stated in
4. Their alloys Subsection 155.1 or this subsection are committed
regardless of whether there is actual sale of goods or
ELEMENTS services using the infringing material.
1. That the offender imports, sells or disposes of any of
those articles or merchandise. Definition of Mark
2. That the stamps, brands, or marks of those articles of "Mark" means any visible sign capable of distinguishing the
merchandise fail to indicate the actual fineness or goods (trademark) or services (Service mark) of an enterprise
quality of said metals or alloys. and shall include a stamped or marked container.
3. That the offender knows that the stamps, brands, or
marks fail to indicate the actual fineness or quality of Definition of Tradename
the metals or alloys. "Tradename" means the name or designation identifying or
distinguishing an enterprise.
Selling the misbranded articles is not necessary.
Since one of the acts penalized in Art. 187 is knowingly importing Elements of Trademark Infringement
misbranded articles made of gold, silver, etc., which includes possession 1. The validity of plaintiff’s mark;
thereof after importing the same, it is not necessary that they be sold, 2. The plaintiff’s ownership of the mark; and
and the public actually deceived. But there must be evidence showing
3. The use of the mark or its colorable imitation by the
that the articles were imported.
alleged infringer results in "likelihood of confusion.
Art. 187 does not apply to manufacturer of misbranded

Trademark Must Not be Merely Descriptive or Generic
articles made of gold, silver, etc.
The Intellectual Property Code of the Philippines provides that
The manufacturer who alters the quality or fineness of anything
a mark which "consist[s] exclusively of signs that are generic for
pertaining to his art or business is liable for estafa under Art.
the goods or services they seek to identify" is not registrable.
315, subdivision 2(b), of the Code.
(Sec. 132.l[h])
Generic terms are those which constitute "the common
NOTE: RA 8293, Intellectual Property Code repealed Articles
descriptive name of an article or substance," or comprise the
188 and 189 of the RPC which are inconsistent therewith.
"genus of which the particular product is a species," or are
"commonly used as the name or description of a kind of
NOTE: Provisions of Article 188 and 189 are covered now by RA
goods," or "imply reference to every member of a genus and
8293 under Intellectual Property Code.
the exclusion of individuating characters," or "refer to the basic
nature of the wares or services provided rather than to the more
RA 8293
idiosyncratic characteristics of a particular product," and are not
Intellectual Property Code of the Philippines
legally protectable.
Any person who shall employ deception or any other means

The Tradename or Trademark Must be Registered contrary to good faith by which he shall pass off the goods
The trademark must be registered in the Intellectual Property manufactured by him or in which he deals, or his business, or
Office of the Philippines. A certificate of registration of a mark services for those of the one having established such goodwill,
shall be prima facie evidence of the validity of the registration, or who shall commit any acts calculated to produce said result,
the registrant's ownership of the mark, and of the registrant's shall be guilty of unfair competition, and shall be subject to an
exclusive right to use the same in connection with the goods or action therefor.
services and those that are related thereto specified certificate.
In particular, and without in any way limiting the scope of
A Colorable Imitation Thereof protection against unfair competition, the following shall be
The trademark used by the offender need not be identical with deemed guilty of unfair competition:
the infringed trademark. A colorable imitation is sufficient.
Colorable imitation denotes such a close or ingenious imitation 1. Any person, who is selling his goods and gives them
as to be calculated to deceive ordinary persons, or such a the general appearance of goods of another
resemblance to the original as to deceive an ordinary purchaser manufacturer or dealer, either as to the goods
giving such attention as a purchaser usually gives, as to cause themselves or in the wrapping of the packages in
him to purchase the one supposing it to be the other. which they are contained, or the devices or words
thereon, or in any other feature of their appearance,
Tests in Determining Confusing Similarity which would be likely to influence purchasers to
1. Dominancy Test - focuses on the similarity of the believe that the goods offered are those of a
prevalent features of the competing trademarks which manufacturer or dealer, other than the actual
might cause confusion or deception, and thus manufacturer or dealer, or who otherwise clothes the
infringement. If the competing trademark contains goods with such appearance as shall deceive the
the main, essential or dominant features of another, public and defraud another of his legitimate trade, or
and confusion or deception is likely to result, any subsequent vendor of such goods or any agent of
infringement takes place. Duplication or imitation is any vendor engaged in selling such goods with a like
not necessary; nor is it necessary that the infringing purpose;
label should suggest an effort to imitate. The question 2. Any person who by any artifice, or device, or who
is whether the use of the marks involved is likely to employs any other means calculated to induce the
cause confusion or mistake in the mind of the public false belief that such person is offering the services of
or deceive purchasers another who has identified such services in the mind
2. Holistic Test - The Holistic Test requires that the of the public; or
entirety of the marks in question be considered in 3. Any person who shall make any false statement in the
resolving confusing similarity. Comparison of words is course of trade or who shall commit any other act
not the only determining factor. The trademarks in contrary to good faith of a nature calculated to
their entirety as they appear in their respective labels discredit the goods, business or services of another.
or hang tags must also be considered in relation to the
goods to which they are attached. The discerning eye ELEMENTS OF UNFAIR COMPETITION
of the observer must focus not only on the 1. Confusing similarity in the general appearance of the
predominant words but also on the other features goods, and
appearing in both labels in order that he may draw his 2. Intent to deceive the public and defraud a competitor.
conclusion whether one is confusingly similar to other.
The basis of the provision penalizing unfair competition is that
NOTE: Court has relied on the dominancy test rather than the no one shall, by imitation or any unfair device, induce the public
holistic test. The dominancy test considers the dominant to believe that the goods he offers for sale are the goods of
features in the competing marks in determining whether they another, and thereby appropriate to himself the value of the
are confusingly similar. Under the dominancy test, courts give reputation which the other has acquired for the products or
greater weight to the similarity of the appearance of the merchandise manufactured or sold by him.
product arising from the adoption of the dominant features of
the registered mark, disregarding minor differences.
UNFAIR COMPETITION (Section 168)
A person who has identified in the mind of the public the goods
he manufactures or deals in, his business or services from those
of others, whether or not a registered mark is employed, has a
property right in the goodwill of the said goods, business or
services so identified, which will be protected in the same
manner as other property rights.
CRIMINAL LAW II ACTS PUNISHABLE AND RESPECTIVE PENALTIES

REVISED PENAL CODE
Section 4. Importation of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals
TITLE FIVE
Any person, who unless authorized Life P500,000 to
CRIMES RELATED TO OPIUM AND OTHER DRUGS by law, shall import or bring into Imprisonment P10,000,000
the Philippines any dangerous to Death
Articles 190, 191, 192 and 193 of the Revised Penal Code were drugs, regardless of the quantity
repealed by Republic Act No. 6425, known as the "Dangerous and purity involved, including any
Drugs Act of 1972," which took effect on March 30, 1972, as and all species of opium poppy or
any part thereof or substances
amended by P.D. No. 1683 and further amended by Republic
derived therefrom even for floral,
Act No. 7659. decorative and culinary purposes.
Any person, who, unless authorized 12 years and P100,000 to
Republic Act No. 9165, known as the "Comprehensive by law, shall import any controlled 1 day to 20 P500,000
Dangerous Drugs Act of 2002," which took effect on July 4, precursor and essential chemical. years
2002, repealed Republic Act No. 6425 and amended Republic Any person, who acts as a 12 years and P100,000 to
Act No. 7659. “protector/coddler” of any violator 1 day to 20 P500,000.
of the provisions under this years
Section
Limited Applicability of RPC to RA 9165
Maximum Penalty Shall be Imposed
Section 98 of Rep. Act No. 9165 expressly states that
Any person, who, unless authorized under this Act, shall import or
"[notwithstanding any law, rule or regulation to the contrary,
bring into the Philippines any dangerous drug and/or controlled
the provisions of the Revised Penal Code (Act No. 3814), as precursor and essential chemical through the use of a diplomatic
amended, shall not apply to the provisions of this Act, except in passport, diplomatic facilities or any other means involving his/her
the case of minor offenders. official status intended to facilitate the unlawful entry of the same. In
addition, the diplomatic passport shall be confiscated and canceled.
Where the offender is a minor, the penalty for acts punishable Any person, who organizes, manages or acts as a "financier" of any
by life imprisonment to death provided herein shall be of the illegal activities prescribed in this Section
reclusion perpetua to death.
Section 5. Sale, Trading, Administration, Dispensation,
Dangerous drugs and Controlled Precursors/Essential Delivery, Distribution and Transportation of Dangerous
Chemicals are not defined but refer to those substances which Drugs and/or Controlled Precursors and Essential Chemicals
are enumerated in the list of schedules prepared and adopted Any person, who, unless authorized Life P500,000 to
by law, shall sell, trade, administer, Imprisonment P10,000,000
by International Conventions.
dispense, deliver, give away to to Death
another, distribute dispatch in
Who are the Offenders transit or transport any dangerous
1. Direct participant or violator; drug, including any and all species
of opium poppy regardless of the
2. Conspirator (Section 26); quantity and purity involved, or
shall act as a broker in any of such
3. Broker (Section 5); and transactions.
by law, shall sell, trade, administer, 1 day to 20 P500,000
4. Financier (maximum penalty provided by law).
dispense, deliver, give away to years
- Any person who pay for, raises or supplies money another, distribute, dispatch in
for, or underwrites any of the illegal activities transit or transport any controlled
prescribed under the law. precursor and essential chemical, or
shall act as a broker in such
5. Protector/Coddler (12 years and 1 day to 20 years) transactions.
- Any person who knowingly and willfully consents Any person, who acts as a 12 years and P100,000 to
“protector/coddler” of any violator 1 day to 20 P500,000.
to the unlawful under the law and uses his
of the provisions under this Sec years
influence, power or position in shielding,
Maximum Penalty Shall be Imposed
harboring, screening, or facilitating the escape of
If the sale, trading, administration, dispensation, delivery,
any person he knowns or has reasonable grounds distribution or transportation of any dangerous drug and/or
to believe on or suspects, has violated the controlled precursor and essential chemical transpires within one
provisions of RA 9165 to prevent arrest, hundred (100) meters from the school, the maximum penalty shall
prosecution and conviction of the violator. be imposed in every case.
For drug pushers who use minors or mentally incapacitated
individuals as runners, couriers and messengers, or in any other
capacity directly connected to the dangerous drugs and/or
controlled precursors and essential chemical trade, the maximum
penalty shall be imposed in every case.
If the victim of the offense is a minor or a mentally incapacitated The law defines the world “deliver” to mean a person’s act of
individual or should a dangerous drug and/or a controlled precursor knowingly passing a dangerous drug to another personally
and essential chemical involved in any offense herein provided be or otherwise and by any means with or without consideration.
the proximate cause of death of a victim thereof, the maximum
penalty provided for under this Section shall be imposed.
Q. Is it necessary that the offender personally make the act
Any person, who organizes, manages or acts as a "financier" of any
of the illegal activities prescribed in this Section of delivery in order to be criminally liable?
No. The act of delivering prohibited drugs is not limited to
NOTE: Sale of dangerous drugs are usually committed by those called deliveries made personally by the accused but covers those
as drug pushers and are to be differed from drug users for they have a effected through other means as well. Therefore, assuming that
much higher penalty. it was indeed another person, not accused who delivered the
marijuana, such fact will not make the latter less liable since the
SALE OF DANGEROUS DRUGS, Elements delivery was at his behest. What is material being the giving of
The following elements must concur: the prohibited drug pursuant to the instruction of the accused
1. The identity of the buyer and the seller, object and even if he did not personally deliver the same (People v. Santos,
the consideration; and GR 93520, 1 December 1994).
2. The delivery of the things sold and the payment
therefore. TRANSPORTATION
Must the offender be actually arrested in transit?
Q. Should payment be actually made? • The essential element of the charge is the movement
No. The commission of the offense of illegal sale of prohibited of the dangerous drug from one place to another.
drugs requires merely the consummation of the selling
transaction, which happens at the moment the buyer receives Although petitioner and his co-accused were arrested inside a
the drug from seller. car, the car was not in transit when they were accosted. From
the facts, the car was parked and stationary. The prosecution
Even without the money to buy the marijuana, so long as the failed to show any distance travelled by petition while
police office went through the motion as a buyer and his offer possession of drugs. The conclusion that petitioner transported
was accepted by the offender and the marijuana is delivered to drugs by being in a vehicle has no basis and is a mere
the police officer, the crime was consummated by the delivery speculation (San Juan v. People, GR 177191, 30 May 2011).
of goods (People v. Lakibul).
People v. Lara wearing oversized shoes, the offender was
Q. Is it necessary to present the buy bust money in evidence? caught in possession of three plastic sachets of shabu while
This Court has been categorical in declaring the neither law nor being frisked and found out in possession of shabu.
jurisprudence requires the presentation of any money used in
a buy-bust operation. Failure to mark the money or to present The total amount of shabu was 193.63g. SC ruled that the
it in evidence is not material, since failure to do so will not accused was apprehended inside the airport bound for Davao
necessarily disprove sale. city with substantial amount of shabu in his oversized shoes.
While it may be argued that appellant was yet to board the
If at all, the marked money merely serves as corroborative aircraft or travel at some distance with the illegal drugs in his
evidence in proving appellant’s guilt. Stated differently, in possession, it cannot be denied that his presence at the airport
prosecuting a case for the sale of dangerous drugs, the failure at the particular instance was for the purpose of transporting
to present marked money does not create hiatus in the evidence or moving the dangerous drugs from one place to another.
for the prosecution, as long as the sale of dangerous drugs is
adequately proven, and the drug subject of the transaction is • If a person found to have more than 5 grams of shabu,
presented before the court. (People v. Rebotazo, 2013). then his purpose in carrying them is to dispose, traffic
or sell it.
In any case if there is no payment, qualifies as delivery.
In order to sustain conviction for selling prohibited drugs, the • If only a user he does not need more than 5 grams,
element of sale must be unequivocally established. Also, what the presumption shows that he is out to traffic the rest
the law proscribes is not only the act of selling but also, albeit of it. This is the intention was shown for trafficking.
not limited to, the act of delivering (People v. Ponferada, GR
101004, 17 March 1993). Clarification of the Chargeable Offenses
In People v. Dimaano, GR 174481, 10 February 2016, that he
DELIVERY; There must be “Intent to Deliver” appellant is guilty beyond reasonable doubt of attempting to
Delivery necessarily involves the knowledge on the part of the transport dangerous drugs. The prosecution proved the
one delivering what he is delivering is dangerous drugs. If there essential element of the crime; accused-appellant would have
is no evidence to show this knowledge, accused will be successfully moved 13.96 grams of shabu from Manila to Cebu
acquitted. had she not been apprehended at the initial check-in area at
Manila Domestic Airport Terminal. Section 26 same penalty.
Q. Is the Presentation of the Information Necessary? • Provided further, that the prosecution shall prove such
The presentation of the information as witness is not regarded intent on the part of the owner to use the property for
as indispensable to the success of a prosecution of a drug such purpose.
• Provided, finally, that the owner shall be included as an
dealing accused. As a rule, the informant is not present in court
accused in the criminal complaint.
for security reasons, in view of the need to protect the
informant from retaliation of the culprit arrested through his
Den, Dive or Resort
efforts. Thereby, the confidentiality of the informant’s identity
A place where dangerous drug and/or CPEC is administered,
is protected in deference to his invaluable services to law
delivered, stored for illegal purposes, distributed, sold or used
enforcement (People v. Rosauro, GR 209588, 18 February 2015).
in any form. This is punished because the place is given for
being able to transact illegal activities.
Only when the testimony of the informant is considered
1. Intentionally used in furtherance of the crime;
absolutely essential in obtaining the conviction of the culprit
2. Prosecution must prove such intent on part of owner
should the need to protect his security be disregarded.
Section 7. Employees and Visitors of a Den, Dive or Resort
• It is indispensable when he himself is the poseur-
Any employee of a den, dive or 12 years and P100,000 to
buyer because you cannot establish the identity resort, who is aware of the nature 1 day to 20 P500,000
without the testimony of the poseur; If he acts as of the place as such; and years
poseur-buyer and informant, he has to be presented. Any person who, not being 12 years and P100,000 to
(See People v. Andaya) included in the provisions of the 1 day to 20 P500,000.
next preceding, paragraph, is aware years
People v. Andaya GR 183700, 13 October 2014 of the nature of the place as such
If the arresting lawmen arrested the accused based on the pre- and shall knowingly visit the same
arranged signal from the confidential informant who acted as
NOTE: With or without compensation in connection with the
the poseur-buyer, his non-presentation must be credibly
operation thereof is include. The employee must be aware of
explained, and the transaction established by other ways in
the nature of the place as such.
order to satisfy the quantum of proof.
GENERAL RULE: The presentation of the informant is not Section 8. Manufacture of Dangerous Drugs and/or
Controlled Precursors and Essential Chemicals
indispensable when there are other poseur-buyers who can
Any person, who, unless authorized Life P500,000 to
directly incriminate the accused.
by law, shall engage in the Imprisonment P10,000,000
manufacture of any dangerous to Death
EXCEPTION: If the poseur-buyer and the information is the drug.
same person the informant has to be presented. Any person, who, unless authorized 12 years and P100,000 to
by law, shall manufacture any 1 day to 20 P500,000
Section 6. Maintenance of a Den, Dive or Resort controlled precursor and essential years
Any person or group of persons Life P500,000 to chemical.
who shall maintain a den, dive or Imprisonment P10,000,000 Any person, who acts as a 12 years and P100,000 to
resort where any dangerous drug is to Death “protector/coddler” of any violator 1 day to 20 P500,000.
used or sold in any form. of the provisions under this years
Any person or group of persons 12 years and P100,000 to Section
who shall maintain a den, dive, or 1 day to 20 P500,000 Maximum Penalty Shall be Imposed
resort where any controlled years Any person, who organizes, manages or acts as a "financier" of any
precursor and essential chemical is of the illegal activities prescribed in this Section
used or sold in any form. Presumption of Manufacture of Any Dangerous Drug
Any person, who acts as a 12 years and P100,000 to The presence of any controlled precursor and essential chemical or
“protector/coddler” of any violator 1 day to 20 P500,000. laboratory equipment in the clandestine laboratory is a prima facie
of the provisions under this years proof of manufacture of any dangerous drug.
Section Aggravating Circumstance if Clandestine Laboratory is Established
Should any dangerous drug be the Death P1,000,000 a. Any phase of the manufacturing process was conducted
proximate cause of the death of a to in the presence or with the help of minor/s:
person using the same in such P15,000,000 b. Any phase or manufacturing process was established or
den, dive or resort. undertaken within one hundred (100) meters of a
Maximum Penalty Imposed residential, business, church or school premises;
In every case where any dangerous drug is administered, delivered c. Any clandestine laboratory was secured or protected with
or sold to a minor who is allowed to use the same in such a place. booby traps;
Any person, who organizes, manages or acts as a "financier" of any d. Any clandestine laboratory was concealed with legitimate
of the illegal activities prescribed in this Section. business operations; or
Provision if the Dive, Resort or Den is Owned by Third Person e. Any employment of a practitioner, chemical engineer,
It shall be confiscated and escheated in favor of the government: public official or foreigner.
• Provided, that the criminal complaint shall specifically Clandestine laboratory – facility used for the illegal manufacture of
allege that such place is intentionally used in the any dangerous drug and or CPEC
furtherance of the crime.
NOTE: The application of the aggravating circumstance herein is Section 11. Possession of Dangerous Drugs
peculiar because the special law expressly states that the Revised Penal Any person, who, unless authorized Life P500,000 to
Code shall have a limited applicability under Republic Act No. 9165 by law, shall possess any dangerous Imprisonment P10,000,000
which is important to remember. drug in the following quantities, to Death
regardless of the degree of purity
Section 9. Illegal Chemical Diversion of Controlled thereof:
Precursors and Essential Chemicals QUANTITIES SPECIFIED BY LAW:
1. 10 grams or more of opium;
2. 10 grams or more of morphine;
by law, shall illegally divert any 1 day to 20 P500,000 3. 10 grams or more of heroin;
controlled precursor and essential years 4. 10 grams or more of cocaine or cocaine hydrochloride;
chemical 5. 50 grams or more of methamphetamine hydrochloride or “shabu”
6. 10 grams or more of marijuana resin or marijuana resin oil;
7. 500 grams or more of marijuana; and
Chemical Diversion
8. 10 grams or more of other dangerous drugs such as but not limited;
The sale, distribution, supply or transport of legitimately (i) Methylenedioxymethamphetamine (MDA) or "ecstasy"
imported, in-transit, manufactured or procured CPEC in diluted, (ii) Paramethoxyamphetamine (PMA)
mixtures or in concentrated form, to any person or entity (iii) Trimethoxyamphetamine (TMA
(iv) Lysergic acid diethylamine (LSD)
engaged in the manufacture of any dangerous drug, and shall (v) Gamma hydroxyamphetamine (GHB) and,
include packaging, repackaging, labeling, relabeling or (vi) Those similarly designed or newly introduced drugs and their
concealment of such transaction through fraud, destruction of derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements, as
documents, fraudulent use of permits, misdeclaration, use of
determined and promulgated by the Board in accordance to
front companies or mail fraud. Section 93, Article XI of this Act.
Section 10. Manufacture or Delivery of Equipment, Quantities Involved and Graduation of Penalties
Instrument, Apparatus, and Other Paraphernalia for SHABU 10G OR MORE TO LESS THAN 50G: Life P400,000 to
If quantity of methamphetamine Imprisonment P500,000
Dangerous Drugs and/or Controlled Precursors and
hydrochloride or "shabu" is ten (10)
Essential Chemicals grams or more but less than fifty
Any person who shall deliver, 12 years and P100,000 to (50) grams;
possess with intent to deliver, or 1 day to 20 P500,000 5G OR MORE BUT LESS THAN 10G OF DD: 20 years and P400,000 to
manufacture with intent to deliver years If the quantities of dangerous drugs are
1 day to Life P500,000.
equipment, instrument, apparatus five (5) grams or more but less than ten
Imprisonment
and other paraphernalia for (10) grams of opium, morphine, heroin,
cocaine or cocaine hydrochloride,
dangerous drugs, knowing, or
marijuana resin or marijuana resin oil,
under circumstances where one shabu, or other dangerous drugs such
reasonably should know, that it will as, but not limited to, MDMA or
be used to plant, propagate, "ecstasy", PMA, TMA, LSD, GHB, and
cultivate, grow, harvest, those similarly designed or newly
manufacture, compound, convert, introduced drugs and their derivatives,
produce, process, prepare, test, without having any therapeutic value or
if the quantity possessed is far beyond
analyze, pack, repack, store, contain
therapeutic requirements;
or conceal any dangerous drug
and/or controlled precursor and 300G OR MORE BUT LESS THAN 500G MJ:
essential chemical in violation of Three hundred (300) grams or
this Act. more but less than five (hundred)
If it will be used to inject, ingest, 6 months and P10,000 to 500) grams of marijuana; and
inhale or otherwise introduce into 1 day to 4 P50,000 LESS THAN 5G OF DANGEROUS DRUGS: 12 years and P300,000 to
the human body a dangerous drug years If the quantities of dangerous 1 day to 20 P400,000
in violation of this Act. drugs are less than five (5) grams of years
Maximum Penalty Shall be Imposed opium, morphine, heroin, cocaine
Any person, who uses a minor or a mentally incapacitated individual or cocaine hydrochloride,
to deliver such equipment, instrument, apparatus and other marijuana resin or marijuana resin
paraphernalia for dangerous drugs. oil, shabu, or other dangerous
drugs such as, but not limited to,
Overt Acts MDMA or "ecstasy", PMA, TMA,
LSD, GHB, and those similarly
1. Delivery;
designed or newly introduced
2. Possess with intent to deliver;
drugs and their derivatives, without
3. Manufacture with intent to deliver having any therapeutic value or if
the quantity possessed is far
Knowledge: Under circumstances where one reasonably beyond therapeutic requirements.
should know that it will be sued to plant, propagate, cultivate,
LESS THAN 300G OF MARIJUANA:
grow, harvest, manufacture, compound, convert, produce,
Less than three hundred (300)
process, prepare, test, analyze, pack, repack, store, contain, or
grams of marijuana
conceal any dangerous drug and/or controlled precursor and
essential chemical.
NOTE: Offender must not be authorized by law and must know Section 13. Possession of Dangerous Drugs During Parties,
that what he is possessing are dangerous drugs. Social Gatherings or Meetings
Any person, found possessing any Maximum penalties provided
Presumption of Knowledge of Accused dangerous drug during a party, or for in Section 11, regardless
Possession of dangerous drugs constitute prima facie evidence at a social gathering or meeting, or of quality and purity of such
in the proximate company of at dangerous drugs.
of knowledge or animus possidendi sufficient to convict an
least two (2) persons.
accused in the absence of a satisfactory explanation of such
possession. Hence, the burden of evidence is shifted to the
Section 14. Possession of Equipment, Instrument,
accused to explain the absence of knowledge.
Apparatus and Other Paraphernalia for Dangerous Drugs
• Maximum penalty under Section 13. The weight under
During Parties, Social Gatherings or Meetings
Section 13 no longer matters the penalty is life
Any person, who shall possess or Maximum penalties provided
imprisonment to death, have under his/her control any for in Section 12.
equipment, instrument, apparatus
Possession may either be actual or constructive. and other paraphernalia fit or
• Actual possession exists when the drug is with the intended for smoking, consuming,
immediate physical possession of control of the administering, injecting, ingesting,
offender. or introducing any dangerous drug
• Constructive possession exists when the drug is under into the body, during parties, social
gatherings or meetings, or in the
the dominion and control of the offender or when he
proximate company of at least two
has the right to exercise dominion and control over (2) persons.
the place where it is found.
Section 15. Use of Dangerous Drugs
Section 12. Possession of Equipment, Instrument, A person apprehended or arrested, who is found to be positive for
Apparatus and Other Paraphernalia for Dangerous Drug use of any dangerous drug, after a confirmatory test.
Any person, who unless authorized 6 months and P10,000 to FIRST OFFENSE Minimum of six (6) months
by law, shall possess or have under 1 day to 4 P50,000 rehabilitation in a government
control any equipment, instrument, years center for the first offense,
apparatus and other paraphernalia subject to the provisions of
fit intended for smoking, Article VIII of this Act
consuming, administering, IF APPREHENDED SECOND TIME 6 years and 1 day P50,000 to
injecting, ingesting, or introducing to 12 years P200,000
any dangerous drug into the body: Applicability of Section 11
Provided, That in the case of Provided, that this Section shall not be applicable where the person
medical practitioners and various tested is also found to have in his/her possession such quantity of
professionals who are required to any dangerous drug provided for under Section 11 of this Act, in
carry such equipment, instrument, which case the provisions stated therein shall apply.
apparatus and other paraphernalia
in the practice of their profession, NOTE: To be liable for Section 15 found positive after a
the Board shall prescribe the
confirmatory test. There are two tests:
necessary implementing guidelines
thereof.
1. Screening Test – presumptive result
Prima Facie Evidence of Possessor of Violation of Section 15 2. Confirmatory Test - conclusive
The possession of such equipment, instrument, apparatus and other
paraphernalia fit or intended for any of the purposes enumerated in Q. When is there no need to undergo confirmatory test?
the preceding paragraph shall be prima facie evidence that the When the presumption under Section 12 applies, when you are
possessor has smoked, consumed, administered to himself/herself, caught in possession of drug paraphernalia.
injected, ingested or used a dangerous drug and shall be presumed
to have violated Section 15 of this Act.
NOTE: If you were caught in the possession of dangerous drugs
under Section 11, Section 15 (as well as rehabilitation) will no
Object: Equipment, instrument, apparatus, and other
longer apply. Thus, the presumption under Section 12 of
paraphernalia;
violation of Section 15 will no longer apply.
Specific Characteristic: Fit or intended for smoking,

PROBLEM
consuming, administering, injecting, ingesting, or introducing
A, with four others, is caught in flagrante delicto having a shabu
any dangerous drug into the body; (weighing scale, sachet).
pot session inside A’s house. Among the objects confiscated
from them include:
Presumption
• Empty plastic sachets.
The possession of such equipment, instrument, apparatus, and
• Several pieces of rolled aluminum foil containing
other apparatus and other paraphernalia fit or intended for an
shabu residue.
of the purposes enumerated in the preceding paragraph shall
Q. What is the proper chargeable crime?
be prima facie evidence to have violated Section 15.
SOLUTION (People v. Martinez, GR 191366, 13 Dec. 2010) Confiscated by the State

This court notes the practice of law enforcers of filing charges The land or portions thereof and/or greenhouses on which any of
under Section 11 in cases where the presence of dangerous said plants is cultivated or cultured shall be confiscated and
escheated in favor of the State, unless the owner thereof can prove
drugs as basis for possession is only and solely in the form of
lack of knowledge of such cultivation or culture despite the exercise
residue under Section 11. (Section 14, proximate company of at
of due diligence on his/her part.
least two persons). • If the land involved is part of the public domain, the
maximum penalty provided for under this Section shall be
Although not incorrect, it would be more in keeping with the imposed upon the offender.
intent of the law to file charges under Section 15 instead in
order to rehabilitate first time offenders of drug use, provide Section 17. Maintenance and Keeping of Original Records
that there is a positive confirmatory rest as required under of Transactions on Dangerous Drugs and/or Controlled
Section 15. Precursors and Essential Chemicals
Any practitioner, manufacturer, 1 year and 1 P10,000 to
The minimum penalty under the last paragraph of Section 11 wholesaler, importer, distributor, day to 6 years P50,000
for the possession of residue is imprisonment of twelve years dealer or retailer who violates or
and one day, while the penalty under Section 15 for first time fails to comply with the
maintenance and keeping of the
offender of drug use is a minimum of six months rehabilitation
original records of transactions on
in a government center. To file charges under Section 11 on the any dangerous drug and/or
basis of residue alone would frustrate the objective of law. controlled precursor and essential
chemical in accordance with
• If only solely residue, charge person under Section 15 Section 40 of this Act.
but it is not incorrect to prosecute under Section 11, Additional Penalty
but the former is more in keeping with the law. An additional penalty shall be imposed through the revocation of
• If there is no residue at all they must have been charge the license to practice his/her profession, in case of a practitioner,
or of the business, in case of a manufacturer, seller, importer,
under Section 14 (Section 12 maximum)
distributor, dealer or retailer.
Granting the arrest was legal, the evidence obtained admissible

Section 40
and the chain of custody intact, the law enforcers should have
The provision requires every pharmacist dealing in dangerous
filed under Section 15 or for use, if there was no residue at all,
drugs or CPEC to maintain and keep an original record of sales,
they should have been charged under Section 14 (Section 12
purchases, acquisition and deliveries of dangerous drugs.
maximum if done in proximate company of at least two
persons).
A certified true copy of such record covering a period of six
months, duly signed by the pharmacist or the owner of the
Section 16. Cultivation or Culture of Plants Classified as
drugstore, pharmacy or chemical establishment, shall be
Dangerous Drugs or are Sources Thereof
forwarded to the DDB within fifteen (15) days following the last
any person, who shall plant, Life P500,000 to
day of June and December of each year, with a copy thereof
cultivate or culture marijuana, Imprisonment P10,000,000
opium poppy or any other plant to Death furnished the city or municipal health officer concerned.
regardless of quantity, which is or
may hereafter be classified as a Section 18. Unnecessary Prescription of Dangerous Drugs
dangerous drug or as a source from Practitioner who shall prescribe any 12 years and P100,000 to
which any dangerous drug may be dangerous drug to any person 1 day to 20 P500,000
manufactured or derived whose physical or physiological years
Any person, who acts as a 12 years and P100,000 to condition does not require the use
“protector/coddler” of any violator 1 day to 20 P500,000. or in the dosage prescribed therein,
of the provisions under this years as determined by the Board in
Section consultation with recognized
Maximum Penalty Shall be Imposed competent experts who are
Any person, who organizes, manages or acts as a "financier" of any authorized representatives of
of the illegal activities prescribed in this Section professional organizations of
If the land involved is part of the public domain, the maximum practitioners, particularly those
penalty provided for under this Section shall be imposed upon the who are involved in the care of
offender. persons with severe pain.
In Cases of Medical Laboratories and Medical Research Centers Additional Penalty
That in the case of medical laboratories and medical research Revocation of his/her license to practice shall be imposed.
centers which cultivate or culture marijuana, opium poppy and other
plants, or materials of such dangerous drugs for medical NOTE: Both Section 17 and 18 of this special law provides an additional
experiments and research purposes, or for the creation of new types penalty for those practitioners and establishment who fails to perform
of medicine, the Board shall prescribe the necessary implementing their duty and exercise acts that is considered as violations under RA
guidelines for the proper cultivation, culture, handling, 9165 or the Comprehensive Dangerous Drugs Act of 2002 which
experimentation and disposal of such plants and materials. amends the previous special law.
Section 19. Unlawful Prescription of Dangerous Drugs What happens to the other samples? The others do not fall
Any person, who, unless authorized Life P500,000 to under sale, but only possession. The chain of custody helps to
by law, shall make or issue a Imprisonment P10,000,000 delineate the offenses committed so that they will not be
prescription or any other writing to Death comingled with each other.
purporting to be a prescription for
any dangerous drug.
Reason
A unique characteristic of narcotic substance is that they are not
Confiscation and Forfeiture of the Proceeds or Instruments
readily identifiable as in fact they are subject to scientific
of the Unlawful Act
analysis to determine their composition and nature. The court
Under Article 45 of the RPC also provides the accessory penalty
cannot reluctantly close its eyes to the likelihood or at least the
of the forfeiture applies to Section 4, 5, 8, 16, 12 and 14. Those
possibility, that any of the links in the chain of custody of the
of unlawful commerce are destroyed without delay. Rationale:
same there could have been tampering, alteration or
1. They are considered illicit; the offender is not allowed
substitution of substances from other cases – by accident or
to profit from their crimes.
otherwise – in which similar evidence was seized or in which
2. You cannot return such to the offender, the violation
similar evidence was submitted for laboratory testing.
of the law can be committed again.
Chain of Custody, Meaning
Confiscation of the Following
It means duly recorded authorized movements and custody
1. Articles
of seized rugs or controlled chemicals or plant sources of
2. Contraband
dangerous drugs or laboratory equipment of each stage, from
the time of seizure/confiscation to receipt in the forensic
Q. Can you pray for the release of the property impounded?
laboratory to safekeeping to presentation in court for
No. Section 21 provides, during the pendency of the case in the
destruction.
Regional Trial Court, no property, or income derived therefrom,
which may be confiscated and forfeited, shall be disposed,
What is the Best Evidence for Chain of Custody?
alienated or transferred and the same shall be in custodia legis
There is a chain of custody form from seizing officers until the
and no bond shall be admitted for the release of the same.
custodian, time of receipt, transfer, conveyed to the other, there
should be no gap. Gap would give rise to the doubt to the
REASON: In the status of an article in relation to the product, it
receive evidence.
is primarily intended to maintain such as evidence and
availability of such incase the court needs.
As a method of authenticating evidence, the chain of custody
• The court cannot preempt judgment during the
rule requires that the admission of an exhibit be preceded by
release of judgment. (PDEA v. Broden).
evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be.
CHAIN OF CUSTODY
Section 21 It would include testimony about every link in the chain, from
the moment the time was picked up to the time it is offered
Three Types of Evidence into evidence in such a way that every person who touched the
1. Documentary exhibit would describe how and from whom it was received,
2. Testimonial where it was and what happened to it while in the witness’
3. Object possession, the condition in which it was received and the
a. Readily Identifiable (handgun with a serial condition in which it was delivered to the next link in the chain.
number) These witnesses would then describe the precautions taken to
b. Made Readily Identifiable (knife used for a ensure that there had been no change in the condition of the
murder) item and no opportunity for someone not in the chain to have
c. Cannot be identified and cannot be marked possession of the same (Mallilin v. People, 2008).
(dangerous drugs)
The Following Links Must be Established
Chain of Custody 1. The seizure and marking, if practicable, of the illegal
It applies to the object evidence that cannot be identified and drug recovered from the accused by the
cannot be marked. How do you proof that the drugs are the apprehending officer;
same drugs? Drugs are fungible for it can be easily 2. The turnover of the illegal drug seized by the
interchanged. apprehending officer to the investigation officer;
3. The turnover by the investigation officer of the illegal
Importance of Chain of Custody drug to the forensic chemist for laboratory test; and
How do you know if it is shabu? What fell from the pocket of 4. The turnover and submission of the marked illegal
the offender? How did he know? By the mere appearance, it can drug seized from the forensic chemist to the court.
be any other item. Thus, the information “white crystalline NOTE: A break in the chain would give doubt and may possibly
substance” through its generic description. acquit the accused.
First Link: Seizure and Marking What Happens if there is No Exact Compliance with the
The apprehending team having initial custody and control of Required Procedure is Not Observed?
the drugs shall, immediately after seizure and confiscation, The law recognizes that there may be instance when the exact
physically inventory and photograph the same. compliance with the required procedure is not observed thus
the law provides that noncompliance to these requirements
Made in the Presence Of under justifiable grounds, as long as the integrity and
• The accused or the persons from whom such items evidentiary value of the seized items are properly preserved by
were confiscated and/or seized or his/her the apprehending team, shall not render void and invalid
representatives or counsel such seizures and custody of such items.
• An elected public official and a representative of the • Any justification must be in a sworn statement as well
National Prosecution service, or the media. as the steps taken to preserve integrity of the
evidentiary value of the seized items.
Rules Prescribed in Carreon v. People 2016
Section 21(1) requires at least three (3) persons to be present Example of a Justifiable Ground: If the items are confiscated in
during the physical inventory and photographing. These virtue of a search warrant, in a residence of the suspect. But
persons are preferably: when there are threats to the security of the team. It would be
1. Accused or the persons from whom the items were impracticable to conduct inventory and photograph if security
seized. is in danger. As long as there is proof to the preservation of the
2. Elected public official evidentiary value of the items.
3. Representative of the National Prosecution Service.
General Rule on Non-Compliance
There are however, alternatives to the first and third. Failure to comply with Section 21(!) of RA 9165 implies a
(1) There are two alternatives concomitant failure of the prosecution to establish the identity
a. Representative of the corpus delicti. It produces doubts as to the origins of the
b. Counsel seized items (People v. Holgado, GR 207992, 11 August 2014).
(2) A representative of the media may be present in lieu
of the representative of the NPS When there is gross disregard of the procedural safeguards
prescribed in the law, serious uncertainty is generated about
How is marking done? the identity of the seized items that the prosecution presented
Placing of the apprehending officer or the poseur-buyer of in evidence.
his/her initial and signature of the item seized.
Exception; “Justifiable Grounds”
Where should the seizure and marking be made? As long as it can be proven that the integrity and evidentiary
• The physical inventory and photograph shall be value of the seized items are preserved as the same would be
conducted at the place where the search warrant is utilized in the determination of the guilt or innocence of the
served; or accused.
• In case of warrantless seizures; at the nearest police
station or at the nearest office of the apprehending Minor deviations from the procedures would not automatically
officer/team, whichever is practicable. exonerate an accused from the crimes which he or she was
convicted. This is especially true when the lapses in procedure
To prevent switching or contamination, the seized items, which were recognized and explained in terms of justifiable grounds.
are fungible and indistinct in character and which have been There must also be showing that the police officers intended to
marked after the seizure shall be sealed. comply with the procedure but were thwarted by some
justifiable consideration/reason (People v. Umipang, GR
How Important is Marking? 190321, 25 April 2012).
Marking after seizure is the starting point in the custodial link;
hence it is vital that the seized contraband be immediately What if there is failure on inventory or photograph?
marked because succeeding handlers of the specimens will use The failure to photograph and conduct physical inventory of
the marking as reference. The marking of evidence serves to the seized items is not fatal to the case against the accused and
separate marked evidence from the corpus of all other similar does not ipso facto render inadmissible the items seized. What
or related evidence from the time of seizure until disposal of is important is that the seized item marked at the police station
such (People v. Dahil, GR 212196. 12 January 2015). is identified as the same item produced in court. (People v.
Badilla, GR 218578, 31 August 2016).
It must be noted that the marking is not in the law and is
different from inventory-taking and photography under Section The police officers were not able to provide any justifiable
21. However, the Court had consistently held that failure of the ground. But the lawyer did not question the absence of
authorities to immediately mark the seized drug would cast justifiable grounds. The absence of photograph is not fatal.
reasonable doubt on the authenticity of the corpus delicti (People Admissibility – admitted to be part of the records of the case.
v. Sabdula, GR 184758, 21 April 2014). Appreciation – if the evidence has probative value.
If there is an unexplained non-compliance, it may be admissible in the chain in the possession and the turnover and how the
but there may be doubt as to its probative value. item was preserved during the possession (People v. Beran,
203028, 2014).
Presumption of Regularity of Official Functions
The presumption stands when no reason exists in the records Section 21 (3)
which to doubt the regularity of the performance of the duty. A certification of the forensic laboratory examination results,
which shall be done under oath by the forensic laboratory
The regularity of the performance of duty could not be properly examiner, shall be issued within twenty-four (24) hours after the
presumed in favor of the police officers if the records are receipt of the subject item/s:
replete with indicia of their serious lapses. And even in that
instance, the presumption of regularity will never be Provided, that when the volume of the dangerous drugs, plant
stronger than the presumption of innocence in favor of the sources of dangerous drugs, and controlled precursors and
accused. Otherwise, a mere rule of evidence will defeat the essential chemicals does not allow the completion of testing
constitutionally enshrined right of an accused to be presumed within the time frame, a partial laboratory examination report
innocent (People v. Mendoza, GR 192432, 23 June 2014). shall be provisionally issued stating therein the quantities of
dangerous drugs still to be examined by the forensic laboratory:
Second Link: Turnover of the Seized Drugs by the
Apprehending Officer to the Investigating Officer Provided, however, that a final certification shall be issued on
The second link in the chain of custody is the transfer of the the completed forensic laboratory examination on the same
seized drugs by the apprehending officer to the investigation within the next twenty-four (24) hours;
officer. Usually, the police officer who seizes the suspended
substance turns it over to a supervising officer who will then NOTE: A representative sample would be enough for
send it by courier to the police crime laboratory for testing presentation to the court.
(People v. Martinez, GR 191366, 13 December 2010).
Fourth Link: Turnover of the Marked Illegal Drug Seized
This is a necessary step in the chain of custody because it will by the Forensic Chemist to the Court
be the investigation office who shall conduct the proper
investigation and prepare the necessary documents for the Section 21 (4)
developing criminal case. Certainly, the investigation officer After the filing of the criminal case, the Court shall, within
must have possession of the illegal drugs to properly prepare seventy-two (72) hours, conduct an ocular inspection of the
required documents. confiscated, seized and/or surrendered dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and
Third Link: Turnover by the Investigating Officer of the essential chemicals, including the instruments/paraphernalia
Illegal Drugs to the Forensic Chemist and/or laboratory equipment, and through the PDEA shall
Section 21(2). Within twenty-four (24) hours upon within twenty-four (24) hours thereafter proceed with the
confiscation/seizure of dangerous drugs, plant sources of destruction or burning of the same, in the presence of the
dangerous drugs, controlled precursors and essential accused or the person/s from whom such items were
chemicals, as well as instruments/paraphernalia and/or confiscated and/or seized, or his/her representative or counsel,
laboratory equipment, the same shall be submitted to the PDEA a representative from the media and the DOJ, civil society
Forensic Laboratory for a qualitative and quantitative groups and any elected public official.
examination;
NOTE: The 72 hours is reckoned from filing of the case, from
From the investigating officer, the illegal drug is delivered to the time of the information is filed. Ocular inspection is when
the forensic chemist. Once the seized drugs arrived at the the drugs and results are presented in court. The rest are
forensic laboratory, it will be the laboratory technician who will destroyed but a representative sample of the illicit items.
test and verify the nature of the substance (People v. Dahil).
Qualitative examination – determination the nature of drug

Quantitative examination – determination of the weight
The forensic chemist is an important part of the link, his

purpose is not only to attest the result but also, he has taken
possession of the dangerous drugs, part of his testimony must
prove of receipt and his turnover to the custodial.
Defense: Would the prosecutor as to the existence and

genuineness of the forensic chemist examination. Part of the
stipulation must show that the forensic chemist must not only
show the genuineness of the result but must also show the link
Section 23. – Plea Bargaining Provision Section 25. – Qualifying Aggravating Circumstances in the
Commission of a Crime by Offender under the Influence of
Any person charged under any provision of this Act regardless Dangerous Drugs
of the imposable penalty shall not be allowed to avail of the
provision on plea-bargaining. Notwithstanding the provisions of any law to the contrary, a
positive finding for the use of dangerous drugs shall be a
Estipona v. Hon. Lobrigo GR 226679, 15 August 2017 qualifying aggravating circumstance in the commission of a
The Supreme Court declared Section 23 as unconstitutional for crime by an offender, and the application of the penalty
being contrary to the rule-making authority of the Supreme provided for in the Revised Penal Code shall be applicable.
Court under Section 5(5), Article VIII of the 1987 Constitution.
OFFENSES RELATIVE TO LAW ENFORCEMENT
The separation of powers among the three co-equal branches
of our government has erected an impregnable wall that keeps Section 27. Criminal Liability of a Public Officer or Employee
the power to promulgate rules of pleading, practice and for Misappropriation, Misapplication or Failure to Account for
procedure with the sole prerogative of the Supreme Court. the Confiscated, Seized and/or Surrendered Dangerous Drugs,
Plant Sources of Dangerous Drugs, Controlled Precursors and
The other branches trespass upon t his prerogative if they enact Essential Chemicals, Instruments/Paraphernalia and/or
laws or issue orders that effectively repeal, alter or modify any Laboratory Equipment Including the Proceeds or Properties
of the procedural rules promulgated by the Supreme Court. Obtained from the Unlawful Act Committed. – The penalty of
life imprisonment to death and a fine ranging from Five
Section 23 of RA 9165 is unconstitutional for two reasons. First, hundred thousand pesos (P500,000.00) to Ten million pesos
it violates the equal protection clause since other criminals (P10,000,000.00), in addition to absolute perpetual
(rapists, murderers, etc.) are allowed to plea bargain but drug disqualification from any public office, shall be imposed
offenders are not, considering that rape and murder are more upon any public officer or employee who misappropriates,
heinous than drug offenses. misapplies or fails to account for confiscated, seized or
surrendered dangerous drugs, plant sources of dangerous
Second, it violates the doctrine of separation of powers by drugs, controlled precursors and essential chemicals,
encroaching upon the rule-making power of the Supreme instruments/paraphernalia and/or laboratory equipment
Court under the constitution. Plea-bargaining is procedural in including the proceeds or properties obtained from the
nature and it is within the sole prerogative of the Supreme unlawful acts as provided for in this Act.
Court.
Any elective local or national official found to have benefited
Plea bargaining is a rule of procedure. It is towards the provision from the proceeds of the trafficking of dangerous drugs as
of a simplified and inexpensive procedure for the speedy prescribed in this Act, or have received any financial or
disposition of cases in all courts that the rules on please material contributions or donations from natural or juridical
bargaining was introduced. persons found guilty of trafficking dangerous drugs as
prescribed in this Act, shall be removed from office and
Section 24. – Non-Applicability of the Probation Law for perpetually disqualified from holding any elective or
Drug Traffickers and Pushers appointive positions in the government, its divisions,
subdivisions, and intermediaries, including government-
Any person convicted for drug trafficking or pushing under this owned or –controlled corporations.
Act, regardless of the penalty imposed by the Court, cannot
avail of the privilege granted by the Probation Law or Section 28. Criminal Liability of Government Officials and
Presidential Decree No. 968, as amended. Employees. – The maximum penalties of the unlawful acts
provided for in this Act shall be imposed, in addition to
Illegal Trafficking absolute perpetual disqualification from any public office, if
It is the illegal cultivation, culture, delivery, administration, those found guilty of such unlawful acts are government
dispensation, manufacture, sale, trading, transportation, officials and employees.
distribution, importation, exportation and possession of any
dangerous drug and/or controlled precursor and essential Distinguished from Protector or Coddler
chemical. Protector/Coddler. – Any person who knowingly and willfully
consents to the unlawful acts provided for in this Act and uses
Pusher his/her influence, power or position in shielding, harboring,
A pusher is any person who sells, trades, administers, dispenses, screening or facilitating the escape of any person he/she knows,
delivers or gives away to another, on any terms whatsoever, or or has reasonable grounds to believe on or suspects, has
distributes, dispatches in transit or transports dangerous drugs violated the provisions of this Act in order to prevent the arrest,
or who acts a broker in any of such transaction in violation of prosecution and conviction of the violator.
this Act.
The person under this Section is that the official himself is the drug syndicate, or any information leading to the whereabouts,
offender. It is the government official or employee that is the identities and arrest of all or any of the members thereof; and who
offender. willingly testifies against such persons as described above, shall be
exempted from prosecution or punishment for the offense with
reference to which his/her information of testimony were given, and
Section 29. Criminal Liability for Planting of Evidence. – Any may plead or prove the giving of such information and testimony in
person who is found guilty of "planting" any dangerous drug bar of such prosecution: Provided, That the following conditions
and/or controlled precursor and essential chemical, concur:
regardless of quantity and purity, shall suffer the penalty of
death. (1) The information and testimony are necessary for the
conviction of the persons described above;
What is Meant by Planting of Evidence?
The willful act by any person of maliciously and surreptitiously (2) Such information and testimony are not yet in the
inserting, placing, adding or attaching directly or indirectly, possession of the State;
through any overt or covert act, whatever quantity of any
dangerous drug and/or controlled precursor and essential (3) Such information and testimony can be corroborated
chemical in the person, house, effects or in the immediate on its material points;
vicinity of an innocent individual for the purpose of implicating,
incriminating or imputing the commission of any violation of (4) the informant or witness has not been previously
this Act. Punishable by death, commuted by RA 9346. convicted of a crime involving moral turpitude, except
when there is no other direct evidence available for the
State other than the information and testimony of said
SPECIAL OFFENDERS
informant or witness; and
Section 30. Criminal Liability of Officers of Partnerships, (5) The informant or witness shall strictly and faithfully
Corporations, Associations or Other Juridical Entities. – In case comply without delay, any condition or undertaking,
any violation of this Act is committed by a partnership, reduced into writing, lawfully imposed by the State as
corporation, association or any juridical entity, the partner, further consideration for the grant of immunity from
president, director, manager, trustee, estate administrator, prosecution and punishment.
or officer who consents to or knowingly tolerates such
violation shall be held criminally liable as a co-principal. Provided, further, That this immunity may be enjoyed by such
informant or witness who does not appear to be most guilty for the
The penalty provided for the offense under this Act shall be offense with reference to which his/her information or testimony
were given: Provided, finally, That there is no direct evidence
imposed upon the partner, president, director, manager,
available for the State except for the information and testimony of
trustee, estate administrator, or officer who knowingly
the said informant or witness.
authorizes, tolerates or consents to the use of a vehicle,
vessel, aircraft, equipment or other facility, as an instrument
TERMINATION
in the importation, sale, trading, administration, Section 34. Termination of the Grant of Immunity. – The immunity
dispensation, delivery, distribution, transportation or granted to the informant or witness, as prescribed in Section 33 of
manufacture of dangerous drugs, or chemical diversion, if this Act, shall not attach should it turn out subsequently that the
such vehicle, vessel, aircraft, equipment or other instrument information and/or testimony is false, malicious or made only for the
is owned by or under the control or supervision of the purpose of harassing, molesting or in any way prejudicing the
partnership, corporation, association or juridical entity to persons described in the preceding Section against whom such
which they are affiliated. information or testimony is directed against. In such case, the
informant or witness shall be subject to prosecution and the
enjoyment of all rights and benefits previously accorded him under
Section 31. Additional Penalty if Offender is an Alien. – In this Act or any other law, decree or order shall be deemed
addition to the penalties prescribed in the unlawful act terminated.
committed, any alien who violates such provisions of this Act
shall, after service of sentence, be deported immediately In case an informant or witness under this Act fails or refuses to
without further proceedings, unless the penalty is death testify without just cause, and when lawfully obliged to do so, or
should he/she violate any condition accompanying such immunity
as provided above, his/her immunity shall be removed and he/she
IMMUNITY FROM PROSECUTION shall likewise be subject to contempt and/or criminal prosecution,
as the case may be, and the enjoyment of all rights and benefits
Section 33. Immunity from Prosecution and Punishment. – previously accorded him under this Act or in any other law, decree
Notwithstanding the provisions of Section 17, Rule 119 of the or order shall be deemed terminated.
Revised Rules of Criminal Procedure and the provisions of Republic
Act No. 6981 or the Witness Protection, Security and Benefit Act of In case the informant or witness referred to under this Act falls under
1991, any person who has violated Sections 7, 11, 12, 14, 15, and the applicability of this Section hereof, such individual cannot avail
19, Article II of this Act, who voluntarily gives information about any of the provisions under Article VIII of this Act.
violation of Sections 4, 5, 6, 8, 10, 13, and 16, Article II of this Act as
well as any violation of the offenses mentioned if committed by a
How Terminated The Eye Test

It shall not attach should it turn out subsequently that the The Eye Test ("horizontal gaze nystagmus") refers to horizontal
information and/or testimony is false, malicious or made only or lateral jerking of the driver's eyes as he or she gazes sideways
for the purpose of harassing, molesting or in any way following a moving object such as a pen or the tip of a penlight
prejudicing the persons described (4,5,6,8,10,13) against whom held by the LEO from a distance of about one (1) foot away
such information or testimony directed against. from the face of the driver.
Effect of Termination The Walk-and-Trun

The informant or witness shall be subject to prosecution and The Walk-and-Turn requires the driver to walk heel-to-toe
the enjoyment of all rights and benefits previously accorded to along a straight line for nine (9) steps, turn at the end and
him under RA 9165 or any other law, decree or order shall be return to the point of origin without any difficulty
deemed terminated.
One-Leg Stand
Other Grounds for Termination It requires the driver to stand on either right or left leg with
Failure or refusal to testify without just cause; violation of any both arms on the side. The driver is instructed to keep the foot
condition accompanying such immunity. raised about six (6) inches off the ground for thirty (30) seconds.
DRUG TESTING What Happens if One Fails the Sobriety Test?

If the driver fails in the sobriety tests, it shall be the duty of the
Who are Authorized to Conduct Drug Testing? law enforcement officer to implement the mandatory
Authorized drug testing shall be done by any government determination of the driver’s blood alcohol concentration level
forensic laboratories or by any of the drug testing laboratories through the use of a breath analyzer or similar measuring
accredited and monitored by the DOH to safeguard the quality instrument.
of test results.
If the law enforcement officer has probable cause to believe
What methods are employed? that a person is driving under the influence of dangerous drugs
The drug testing shall employ, among others, two (2) testing and/or other similar substances, it shall be the duty of the law
methods, the screening test which will determine the positive enforcement officer to bring the driver to the nearest police
result as well as the type of the drug used and the confirmatory station to be subjected to a drug screening test and, if
test which will confirm a positive screening test. necessary, a drug confirmatory test as mandated under
Republic Act No. 9165.
Do drug test results have a validity period?
Yes. Drug test certificates issued by accredited drug testing PENALTIES UNDER RA 10586
centers shall be valid for a one-year period from the date of
issue which may be used for other purposes. The following shall Section 12. Penalties. – A driver found to have been driving a
be subjected to undergo drug testing. motor vehicle while under the influence of alcohol, dangerous
drugs and/or other similar substances, as provided for under
Who are subjected to undergo drug testing? Section 5 of this Act, shall be penalized as follows:
(a) REPEALED under Section 19 of RA 10586
(a) If the violation of Section 5 did not result in physical
RA 10586 injuries or homicide, the penalty of three (3) months
A law enforcement officer who has probable cause to believe imprisonment, and a fine ranging from Twenty
that a person is driving under the influence of alcohol, thousand pesos (Php20,000.00) to Eighty thousand
dangerous drugs and/or other similar substances by apparent pesos (Php80,000.00) shall be imposed;
indications and manifestations, including overspeeding,
weaving, lane straddling, sudden stops, swerving, poor (b) If the violation of Section 5 resulted in physical
coordination or the evident smell of alcohol in a person’s breath injuries, the penalty provided in Article 263 of the
or signs of use of dangerous drugs and other similar Revised Penal Code or the penalty provided in the
substances, shall conduct field sobriety tests. next preceding subparagraph, whichever is higher,
and a fine ranging from One hundred thousand pesos
Field Sobriety Tests (Php100,000.00) to Two hundred thousand pesos
Field sobriety tests refer to standardized tests to initially assess (Php200,000.00) shall be imposed;
and determine intoxication, such as the horizontal gaze
nystagmus, the walk-and-turn, the one-leg stand, and other
(c) If the violation of Section 5 resulted in homicide,
similar tests as determined jointly by the DOH, the NAPOLCOM
the penalty provided in Article 249 of the Revised
and the DOTC.
Penal Code and a fine ranging from Three hundred
thousand pesos (Php300,000.00) to Five hundred
thousand pesos (Php500,000.00) shall be imposed; (d) Officers and employees of public and private offices.
and – Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to
(d) The nonprofessional driver’s license of any person undergo a random drug test as contained in the
found to have violated Section 5 of this Act shall also company's work rules and regulations, which shall be
be confiscated and suspended for a period of twelve borne by the employer, for purposes of reducing the
(12) months for the first conviction and perpetually risk in the workplace. Any officer or employee found
revoked for the second conviction. The professional positive for use of dangerous drugs shall be dealt with
driver’s license of any person found to have violated administratively which shall be a ground for
Section 5 of this Act shall also be confiscated and suspension or termination, subject to the provisions of
perpetually revoked for the first conviction. The Article 282 of the Labor Code and pertinent provisions
perpetual revocation of a driver’s license shall of the Civil Service Law;
disqualify the person from being granted any kind of
driver’s license thereafter. SJS v. PDEA, 2008
It is justifiable, while every officer and employee in a private
The prosecution for any violation of this Act shall be without established is under the law deemed forewarned that he or she
prejudice to criminal prosecution for violation of the Revised may be a possible subject of a drug test, nobody is really
Penal Code, Republic Act No. 9165 and other special laws and singled out in advance for drug testing.
existing local ordinances, whenever applicable.
Access to the drug results shall be on the need to know basis;
that the drug test result and the records shall be kept
(b) Applicants for firearm's license and for permit to carry
confidential, subject to the usual accepted practice to protect
firearms outside of residence. – All applicants for
the confidentiality of the test results.
firearm's license and permit to carry firearms outside
of residence shall undergo a mandatory drug test to
RA 9165 does not oblige the employer concerned to report to
ensure that they are free from the use of dangerous
the prosecuting agencies, any information or evidence relation
drugs: Provided, That all persons who by the nature of
to the violation of the RA 9165 as a result of the operation of
their profession carry firearms shall undergo drug
the drug testing. Therefore, the intrusion to the privacy is
testing;
accompanied by proper safeguards and leakages.
(c) Students of secondary and tertiary schools. – Students

(e) Officers and members of the military, police and other
of secondary and tertiary schools shall, pursuant to the
law enforcement agencies. – Officers and members of
related rules and regulations as contained in the
the military, police and other law enforcement
school's student handbook and with notice to the
agencies shall undergo an annual mandatory drug
parents, undergo a random drug testing: Provided,
test;
That all drug testing expenses whether in public or
private schools under this Section will be borne by the
(f) All persons charged before the prosecutor's office
government;
with a criminal offense having an imposable penalty
of imprisonment of not less than six (6) years and one
SJS v. PDEA, 2008
(1) day shall have to undergo a mandatory drug test;
Does mandatory drug testing in schools violate the student’s
and [UNCONSTITUTIONAL]
right to privacy?
SJS v. PDEA, 2008
No. (1) Schools and their administrators stand in loco parentis
The operative concepts in the mandatory drug testing are
with respect to their students; (2) minor students have
randomness and suspicionless. In the case of persons charged
contextually fewer rights than an adult, and are subject to the
with a crime before the prosecutor’s office, a mandatory drug
custody and supervision of their parents, guardians and
testing can never be random or suspicionless.
schools; (3) schools, acting in loco parentis, have a duty to
safeguard the health and well-being of their students and may
The ideas of randomness and being suspicionless are
adopt such measures as may reasonably be necessary to
antithetical to their being made defendants in a criminal
discharge such duty and (4) schools have the right to impose
complaint. They are not randomly picked; neither are they
conditions on applicants for admission that are fair, just and
beyond suspicion. When persons suspected of committing a
non-discriminatory.
crime are charged, they are singled out and are impleaded
against their will.
Requiring mandatory, random, and suspicionless drug testing
of students is constitutional. Indeed, it is within the prerogative
The persons thus charged, by the bare fact of being haled
of education institutions to require, as a condition for
before the prosecutors office and peaceably submitting
admission, compliance with reasonable school rules and
themselves to drug testing, if that be the case, do not
regulations and policies. Right to enroll not absolute.
necessarily consent, even waive privacy.
(g) All candidates for public office whether appointed or Was the drug test conduct on the accused legal and valid? – No.
elected both in the national or local government shall
undergo a mandatory drug test. PROGRAMS FOR TREATMENT AND
[UNCONSTITUTIONAL] REHABILITATIONS
SJS v. PDEA, 2008

Who is a drug dependent?
RA 9165 effectively enlarges the qualification requirements
Drug Dependence – As based on WHO definition, it is a cluster
enumeration in Article VI, Section 3 of the Constitution. As
of physiological, behavioral and cognitive phenomena of
couched, said Section 36(g) unmistakably requires a candidate
variable intensity, in which the use of psychoactive drugs takes
for senator to be certified illegal-drug clean, obviously as a
on a high priority thereby involving, among others, a strong
precondition to the validity of a certificate of candidacy for
desire or a sense of compulsion to take the substance and the
senator or, with like effect a condition sine qua non to be voted
difficulties in controlling substance-taking behavior in terms of
upon and, if proper be proclaimed as senator-elect.
its onset, termination, or levels of use.
(h) In addition to the above stated penalties in this

A Drug Dependent in Violation of Section May
Section, those found to be positive for dangerous
1. Apply to the Board under the Voluntary Submission
drugs use shall be subject to the provisions of Section
Program for treatment and rehabilitation of the drug
15 of this Act.
dependency. Upon application, the Board shall bring
forth the matter to the court which shall order that the
What is the consequence for issuing false or fraudulent
applicant be examined for drug dependency. If the
drug test results?
examination shows that he is dependent, he shall
Any person authorized, licensed or accredited to conduct drug
undergo treatment and rehabilitation for a period not
examination or test, who issues false or fraudulent drug test
less than six months.
results knowingly, willfully or through gross negligence, shall
2. Be compulsory confined under the Compulsory
suffer the penalty of imprisonment ranging from six (6) years
Submission Program.
and one (1) day to twelve (12) years and a fine ranging from
P100,000 to P500,000.
Consequences of Voluntary Submission
(a) Exempted from Criminal Liability under Section 55;
An additional penalty shall be imposed through the revocation
(b) Under Section 57, if not qualified under Section 55, he
of the license of practice his/her profession in case of a
may be charged under the provisions of RA 9165 but
practitioner and the closure of the drug testing center.
shall be placed under probation and undergo a
community service in lieu of imprisonment and/or fine
Section 38. Laboratory Examination or Test on
in the discretion of the court without prejudice to the
Apprehended/Arrest Offenders - Subject to Section 15 of this
outcome of any pending case file in court.
Act, any person apprehended or arrested for violating the
(c) Under Section 58, if not rehabilitated after the second
provisions of this Act shall be subjected to screening laboratory
commitment pursuant to voluntary submission, he
examination or test within twenty-four (24) hours, if the
may be criminally charged and prosecuted like any
apprehending or arresting officer has reasonable ground to
other offender.
believe that the person apprehended or arrested, on account of
physical signs or symptoms or other visible or outward
Procedure in Cases of Compulsory Confinement
manifestation, is under the influence of dangerous drugs.
Any person determined and found to be dependent on
dangerous drugs shall, upon petition by the Board or any of its
If found to be positive, the results of the screening laboratory
authorized representative, be confined for treatment and
examination or test shall be challenged within fifteen (15) days
rehabilitation in any Center duly designated and accredited for
after receipt of the result through a confirmatory test
the purpose. The petition may be filed by any person
conducted in any accredited analytical laboratory equipment
authorized by the Board with the RTC of the province where
with a gas chromatograph/mass spectrometry equipment or
such person is found. A hearing shall be conducted.
some such modern and accepted method, if confirmed the
same shall be prima facie evidence that such person has used
If after such hearing and the fact so warrant, the court shall
dangerous drugs, which is without prejudice for the
order the drug dependent to be examined by two physicians
prosecution for other violations of the provisions of this Act:
accredited by the Board. If both physicians conclude that the
Provided, That a positive screening laboratory test must be
respondent is not a drug depend, the court shall order his/her
confirmed for it to be valid in a court of law.
discharge. If either physician finds him to be dependent, the
court shall conduct a hearing and consider all relevant evidence
Dela Cruz v. People, 2014 - Accused was charged with
which may be offered. If the court finds him a drug dependent,
violation of Section 15 of RA 9165 was arrested by virtue of an
it shall issue and order for his/her commitment to a treatment
entrapment operation for extortion. Upon his arrest, was
and rehabilitation center under the supervision of the
required to submit his urine for drug testing. It later yielded a
Department of Health.
positive result for presence of dangerous drug.
Section 54. Voluntary Submission of a Drug Dependent to Confinement, provisions of this Act, but shall be placed on probation and undergo a
Treatment and Rehabilitation. – A drug dependent or any person who community service in lieu of imprisonment and/or fine in the discretion
violates Section 15 of this Act may, by himself/herself or through his/her of the court, without prejudice to the outcome of any pending case filed
parent, spouse, guardian or relative within the fourth degree of in court.
consanguinity or affinity, apply to the Board or its duly recognized
representative, for treatment and rehabilitation of the drug Such drug dependent shall undergo community service as part of
dependency. Upon such application, the Board shall bring forth the his/her after-care and follow-up program, which may be done in
matter to the Court which shall order that the applicant be examined coordination with nongovernmental civil organizations accredited by
for drug dependency. If the examination by a DOH-accredited physician the DSWD, with the recommendation of the Board.
results in the issuance of a certification that the applicant is a drug
dependent, he/she shall be ordered by the Court to undergo treatment
and rehabilitation in a Center designated by the Board for a period of Compulsory Confinement
not less than six (6) months: Provided, That a drug dependent may be
placed under the care of a DOH-accredited physician where there is no Section 61. Compulsory Confinement of a Drug Dependent Who Refuses
Center near or accessible to the residence of the drug dependent or to Apply Under the Voluntary Submission Program. – Notwithstanding
where said drug dependent is below eighteen (18) years of age and is any law, rule and regulation to the contrary, any person determined and
a first-time offender and non-confinement in a Center will not pose a found to be dependent on dangerous drugs shall, upon petition by the
serious danger to his/her family or the community. Board or any of its authorized representative, be confined for treatment
and rehabilitation in any Center duly designated or accredited for the
Confinement in a Center for treatment and rehabilitation shall not purpose.
exceed one (1) year, after which time the Court, as well as the Board,
shall be apprised by the head of the treatment and rehabilitation center A petition for the confinement of a person alleged to be dependent on
of the status of said drug dependent and determine whether further dangerous drugs to a Center may be filed by any person authorized by
confinement will be for the welfare of the drug dependent and his/her the Board with the Regional Trial Court of the province or city where
family or the community. such person is found.
Section 55. Exemption from the Criminal Liability Under the Voluntary After the petition is filed, the court, by an order, shall immediately fix a
Submission Program. A drug dependent under the voluntary date for the hearing, and a copy of such order shall be served on the
submission program, who is finally discharged from confinement, shall person alleged to be dependent on dangerous drugs, and to the one
be exempt from the criminal liability under Section 15 of this act subject having charge of him.
to the following conditions:
If after such hearing and the facts so warrant, the court shall order the
(1) He/she has complied with the rules and regulations of the drug dependent to be examined by two (2) physicians accredited by
center, the applicable rules and regulations of the Board, the Board. If both physicians conclude that the respondent is not a drug
including the after-care and follow-up program for at least dependent, the court shall order his/her discharge. If either physician
eighteen (18) months following temporary discharge from finds him to be a dependent, the court shall conduct a hearing and
confinement in the Center or, in the case of a dependent consider all relevant evidence which may be offered. If the court finds
placed under the care of the DOH-accredited physician, the him a drug dependent, it shall issue an order for his/her commitment
after-care program and follow-up schedule formulated by to a treatment and rehabilitation center under the supervision of the
the DSWD and approved by the Board: Provided, That DOH. In any event, the order of discharge or order of confinement or
capability-building of local government social workers shall commitment shall be issued not later than fifteen (15) days from the
be undertaken by the DSWD; filing of the appropriate petition.
(2) He/she has never been charged or convicted of any DANGEROUS DRUGS BOARD AND PHILIPPINE
offense punishable under this Act, the Dangerous Drugs Act
of 1972 or Republic Act No. 6425, as amended; the Revised DRUG ENFORCEMENT AGENCY
Penal Code, as amended; or any special penal laws;
Dangerous Drugs Board
(3) He/she has no record of escape from a Center: Provided, The Board shall be the policy-making and strategy-formulating
That had he/she escaped, he/she surrendered by body in the planning and formulation of policies and programs
himself/herself or through his/her parent, spouse, guardian on drug prevention and control. It shall develop and adopt a
or relative within the fourth degree of consanguinity or comprehensive, integrated, unified and balanced national drug
affinity, within one (1) week from the date of the said escape;
abuse prevention and control strategy. It shall be under the
and
Office of the President. (Section 77)
(4) He/she poses no serious danger to himself/herself,

Philippine Drug Enforcement Agency
his/her family or the community by his/her exemption from
criminal liability.
To carry out the provisions of this Act, the PDEA, which serves
as the implementing arm of the Board, and shall be responsible
for the efficient and effective law enforcement of all the
Section 57. Probation and Community Service Under the Voluntary
Submission Program. – A drug dependent who is discharged as provisions on any dangerous drug and/or controlled precursor
rehabilitated by the DOH-accredited Center through the voluntary and essential chemical as provided in this Act. (Section 82)
submission program, but does not qualify for exemption from criminal
liability under Section 55 of this Act, may be charged under the
Is it fatal if the law enforcement agency fails to coordinate Prosecution and punishment under this Section shall be
with the PDEA in enforcing the provisions of RA 9165? without prejudice to any liability for violation of any existing
law.
People v. Rebotazo, GR 192913, 13 June 2013
Section 86 is explicit only in saying that the PDEA shall be the Section 92. Delay and Bungling in the Prosecution of Drug
“lead agency” in the investigations and prosecutions of drug- Cases. – Any government officer or employee tasked with the
related cases. Therefore, other law enforcement bodies still prosecution of drug-related cases under this act, who, through
possess authority to perform similar functions as the PDEA as patent laxity, inexcusable neglect, unreasonable delay or
long as illegal drugs cases will eventually be transferred latter. deliberately causes the unsuccessful prosecution and/or
dismissal of the said drug cases, shall suffer the penalty of
Additionally, the same provision states that PDEA, serving as imprisonment ranging from twelve (12) years and one (1) day
the implementing arm of the DDB, “shall be responsible for the to twenty (20) years without prejudice to his/her prosecution
efficient and effective law enforcement of all the provisions on under the pertinent provisions of the Revised Penal Code.
any DD/EC as provided in the Act.” Section 86 is more of an
administrative provision.
JURISDICTION
Section 91. Responsibility and Liability of Law Enforcement
Agencies and other Government Officials and Employees in Section 90. Jurisdiction. – The Supreme Court shall designate
Testifying as Prosecution Witnesses in Dangerous Drugs Cases. – special courts from among the existing Regional Trial Courts in
Any member of law enforcement agencies or any other each judicial region to exclusively try and hear cases involving
government official and employee who, after due notice, fails violations of this Act. The number of courts designated in each
or refuses intentionally or negligently, to appear as a witness judicial region shall be based on the population and the
for the prosecution in any proceedings, involving violations of number of cases pending in their respective jurisdiction.
this Act, without any valid reason, shall be punished with
imprisonment of not less than twelve (12) years and one (1) day De Lima v. Guerrero, GR 229781, 10 October 2017
to twenty (20) years and a fine of not less than Five hundred A plain reading of RA 9165 will reveal that jurisdiction over
thousand pesos (P500,000.00), in addition to the administrative drug-related cases is exclusively vested with the RTC and no
liability he/she may be meted out by his/her immediate other. Notably no other trial court was mentioned in RA 9165
superior and/or appropriate body. as having the authority to take cognizance of drug-related
cases.
The immediate superior of the member of the law enforcement
agency or any other government employee mentioned in the Alleged of quashal for the elements did not show that the
preceding paragraph shall be penalized with imprisonment of information showing that there is illegal trade leading to illegal
not less than two (2) months and one (1) day but not more than sale. Illegal sale is not indispensable to illegal trading.
six (6) years and a fine of not less than Ten thousand pesos
(P10,000.00) but not more than Fifty thousand pesos Broker need not consummated as long as you have brought the
(P50,000.00) and in addition, perpetual absolute buyer and bringing about the parties in negotiation.
disqualification from public office if despite due notice to them
and to the witness concerned, the former does not exert The exceptional rule provided under Section 90, RA 9165
reasonable effort to present the latter to the court. relegating original exclusive jurisdiction to RTCs specially
designated by the Supreme Court logically follows given the
technical aspect of drug-related cases. With the proliferation of
The member of the law enforcement agency or any other
cases involving violation of RA 9165, it is easy to dismiss them
government employee mentioned in the preceding paragraphs
as common and untechnical.
shall not be transferred or re-assigned to any other government
office located in another territorial jurisdiction during the
However, narcotic substances possess unique characteristics
pendency of the case in court. However, the concerned member
that render them not readily identifiable. In fact, they must first
of the law enforcement agency or government employee may
be subjected to scientific analysis by forensic chemists to
be transferred or re-assigned for compelling reasons: Provided,
determine their composition and nature.
That his/her immediate superior shall notify the court where the
case is pending of the order to transfer or re-assign, within
Thus, judges presiding over designated drugs courts are
twenty-four (24) hours from its approval; Provided, further, That
specially trained by the PJA and given specific instructions to
his/her immediate superior shall be penalized with
equip them with the proper tools to appreciate
imprisonment of not less than two (2) months and one (1) day
pharmacological evidence and give analytical insight upon this
but not more than six (6) years and a fine of not less than Ten
esoteric subject.
thousand pesos (P10,000.00) but not more than Fifty thousand
pesos (P50,000.00) and in addition, perpetual absolute
Without a doubt, not one of the Sandiganbayan justices were
disqualification from public office, should he/she fail to notify
provided with knowledge and technical expertise on matters
the court of such order to transfer or re-assign.
relating to prohibited substances.
Limited Applicability of the Revised Penal Code

Section 98 of Rep. Act No. 9165 expressly states that
"[notwithstanding any law, rule or regulation to the contrary,
the provisions of the Revised Penal Code (Act No. 3814), as
amended, shall not apply to the provisions of this Act, except in
the case of minor offenders.
Where the offender is a minor, the penalty for acts punishable

by life imprisonment to death provided herein shall be
People v. Cabugatan, GR 172019, 12 February 2007

Under the aforesaid section, the provisions of the RPC shall no
longer apply to the provisions of RA 9165, except when the
offender is a minor. Thus, Article 63(2) of the RPC shall not be
used in the determination of the penalty to be imposed on the
accused. Since Section 98 of the said law contains the word
“shall”, the non-applicability of the RPC is mandatory except in
the case of a minor offender.
People v. Mantalaba, GR 186227, 20 July 2011

A violation of Section 5 of RA 9165 merits the penalty of life
imprisonment to death; however, in Section 98, it is provided
that, where the offender is a minor, the penalty for acts
punishable by life imprisonment to death in the same law shall
be RP-Death. Basically, this means the penalty can now be
graduated as it has adopted the technical nomenclature of
penalties provided for in the RPC.
Consequently, the privileged mitigating circumstance of

minority can now be appreciated in fixing the penalty of
reclusion perpetual without considering the minority of the
appellant. Thus, applying the rules stated above, the proper
penalty should be one degree lower than RP, the privileged
mitigating circumstance of minority having been appreciated.
CRIMINAL LAW II government official, or where such government official is

the player, promoter, referee, umpire, judge or coach in
REVISED PENAL CODE case of game fixing, point shaving and machination.
(d) The penalty of prision correccional in its medium period
TITLE SIX or a fine ranging from four hundred to two thousand to
CRIMES AGAINST PUBLIC MORALS two thousand pesos shall be imposed upon any person
who shall, knowingly and without lawful purpose in any
hour of any day, possess any lottery list, paper or other
CHAPTER ONE matter containing letters, figures, signs or symbols
GAMBLING AND BETTING pertaining to or in any manner used in the games of
jueteng, jai-alai or horse racing bookies, and similar
The provisions of Articles 195-199 of the RPC as amended as games of lotteries and numbers which have taken place
well as those of PD 483 (betting, game-fixing or point-shaving or about to take place.
and machinations in sport contests) and 449 (Cockfighting law) (e) The penalty of temporary absolute disqualification6 shall
be imposed upon any barangay official who, with
which are inconsistent with PD 1602 are repealed.
knowledge of the existence of a gambling house or place
in his jurisdiction fails to abate the same or take action in
PRESIDENT DECREE NO. 1602
connection therewith.
Prescribing Stiffer Penalties on Illegal Gambling
(f) The penalty of prision correccional in its maximum period
or a fine ranging from five hundred pesos to two
Section 1. Penalties. – The following penalties are hereby imposed:
thousand pesos shall be imposed upon any security
(a) The penalty of prision correccional in its medium period
officer, security guard, watchman, private or house
or a fine ranging from one thousand to six thousand
detective of hotels, villages, buildings, enclosures and the
pesos, and in case of recidivism, the penalty of prision
like which have the reputation of a gambling place or
mayor in its medium period or a fine ranging from five
where gambling activities are being held.
thousand to ten thousand pesos shall be imposed upon:
1. Any person other than those referred to in the
Section 3. Repealing Clause - Provisions of Arts. 195-199 of the
succeeding sub-sections who in any manner, shall
Revised Penal Code, as amended, Republic Act No. 3063,
directly or indirectly take part in any illegal or
Presidential Decree Numbers 483, 449, 519 and 1306, letters of
unauthorized activities or games of cockfighting,
instructions, laws, executive orders, rules and regulations, city and
jueteng, jai alai or horse racing to include bookie
municipal ordinances which are inconsistent with this Decree are
operations and game fixing, numbers, bingo and
hereby repealed.
other forms of lotteries; cara y cruz, pompiang and
the like; 7-11 and any game using dice; black jack,
Section 4. Effectivity. – This Decree shall take effect immediately
lucky nine, poker and its derivatives, monte,
upon publication at least once in a newspaper of general circulation.
baccarat, cuajao, pangguingue and other card
games; paik que, high and low, mahjong, domino
and other games using plastic tiles and the likes; slot What is Gambling?
machines, roulette, pinball and other mechanical Gambling is any game or scheme, whether upon chance or skill,
contraptions and devices; dog racing, boat racing, wherein wagers consisting of money, articles or value or
car racing and other forms of races, basketball, representative of value are at stake or made.
boxing, volleyball, bowling, pingpong and other
forms of individual or team contests to include game RA 9287 Increased the Illegal Number Games
fixing, point shaving and other machinations;
"Illegal number games" is any form of illegal gambling activity
banking or percentage game, or any other game
which uses numbers or combinations thereof as factors in
scheme, whether upon chance or skill, wherein
wagers consisting of money, articles of value or giving out jackpots/ prizes/returns. (Sec. 4(a), RA 9287) It
representative of value are at stake or made; includes games such as jueteng, masiao and last two.
2. Any person who shall knowingly permit any form of • Bettor
gambling referred to in the preceding subparagraph • Personnel or staff or allows his vehicle, house, building
to be carried on in inhabited or uninhabited place or or land to be used in such operation
in any building, vessel or other means of • Collector or agent
transportation owned or controlled by him. If the
• Coordinator, controller or supervisor
place where gambling is carried on has a reputation
• Maintainer, manger or operator
of a gambling place or that prohibited gambling is
frequently carried on therein, or the place is a public • Financier or capitalist
or government building or barangay hall, the • Financier or coddler
malefactor shall be punished by prision correccional
in its maximum period and a fine of six thousand If government employee or official, whether elected or
pesos. appointed, he shall suffer the penalty of 12 years 1 day to 20
(b) The penalty of prision correccional in its maximum period years and a fine ranging from P3M to P5M and perpetual
or a fine of six thousand pesos shall be imposed upon the
absolute disqualification from public office. Any local
maintainer or conductor of the above gambling schemes.
government official who, having knowledge of the existence of
(c) The penalty of prision mayor in its medium period4 with
temporary absolute disqualification or a fine of six the operation of tan illegal numbers in jurisdiction and fails to
thousand pesos shall be imposed if the maintainer, abate or take action, tolerates such suffer and perpetual
conductor or banker of said gambling schemes is a absolute disqualification from public office.
Any law enforcer who fails to apprehend perpetrators of any Proof that Game Took Place or
illegal number games shall suffer an administrative penalty of Is About to Take Place is Not Necessary
suspension or dismissal, whatever is applied. Proof of the existence of a game of jueteng that has taken place
or about to take place is not necessary. The reason is that, in
Why Gambling is Prohibited and Punished the nature of things, a jueteng list naturally pertains to a game
This is to repress an evil that undermines the social, oral and of jueteng and that the accused would not keep it in his
economic growth of the nation. For it is an act beyond the pale possession but for its connection with such game of jueteng.
of good morals which, for the welfare of the people, should be The burden of the evidence is shifted to the accused to show
exterminated. It has the effect of causing poverty, dishonesty, that his possession is lawful and that the jueteng list is in no
fraud and deceit. way connected with jueteng game that has taken place or
about to take place.
Must Any and All Games in PD 1602 Played for Money?
The playing for money is not a necessary element. It seems that But Proof to the Contrary is Necessary When the
when the law names the games, punishing any person who Jueteng Lists Pertain to Games Played on Other Dates
take part, its purpose is to prohibit absolutely those games. But where the jueteng, were found in the premises of the
accused during a raid by the police on August 5, 1947, and it
“Any Other Game or Scheme, appeared that the jueteng lists pertained to the games played
Whether Upon Chance or Skill.” from May 1 to July 23,1947, and in 1943 and 1944, the
The aforequoted portion of Section 1(a) of PD 1602 makes a prosecution must prove that they were used on the date of the
game or scheme punishable even if the winning depends upon raid or immediately prior to or after said date.
skill, when the wagers consisting of money, articles or value
or representative of value are at stake or made. CHAPTER TWO
OFFENSES AGAINST DECENCY AND GOOD CUSTOMS
As regards the games of individual or team contests, like boxing
and basketball, “game fixing, point-shaving and other ARTICLE 200. Grave scandal. – The penalties of arresto
machinations” is also penalized. mayor and public censure shall be imposed upon any person
who shall offend against decency or good customs by any
Spectators are Not Liable in Gambling highly scandalous conduct not expressly falling within any
A mere bystander or spectator in a gambling game is not other article of this Code.
criminally liable, because he does not take part therein, directly
or indirectly. The law does not make the mere presence in a ELEMENTS
gambling house an offense. 1. That the offender performs an act or acts.
2. That such act or acts be highly scandalous as
DEFINITION OF LOTTERY offending against decency or good customs.
It is a scheme for the distribution of prizes by chance among 3. That the highly scandalous conduct is not expressly
persons who have paid, or agreed to pay, a valuable falling within any other article of this Code.
consideration for the chance to obtain a prize. Lottery embraces 4. That the act or acts complained of be committed in a
all schemes for distribution of prizes by chance. public place or within the public knowledge or view.
If the scheme is such that human reason, foresight, sagacity, or “Shall Offend Against Decency or Good Customs”
design cannot enable one to know or determine the result until The word decency means propriety of conduct; proper
the same has been accomplished, then it is lottery. observance of the requirements of modesty, good taste, etc.
1. Consideration; The word customs mean established usage, social conventions
2. Chance; carried on by tradition and enforced by social disapproval of
3. Prize, or some advantage or inequality in amount or any violation thereof.
value which is in the nature of a prize.
Grave Scandal, Defined
KNOWINGLY PERMITTING GAMBLING TO BE CARRIED ON Grave scandal "consists of acts which are offensive to decency
IN A PLACE OWNED OR CONTROLLED BY THE OFFENDER and good customs which, having been committed publicly,
Elements have given rise to public scandal to persons who have
1. That a gambling game was carried on in an inhabited accidentally witnessed the same."
or uninhabited place or in any building vessel or other
means or transportation. The Act Must be Those that Can Cause Public Scandal
2. That the place, building, vessel or other means of Among the Persons Witnessing Them
transportation is owned or controlled by offender. The acts punishable by Article 200 are those which by their
3. That the offender permitted the carrying on of such publicity and character can cause public scandal among the
game, knowing that it is a gambling game. person witnessing them, besides being contrary to morals and
good customs.
NOTE: Maintainer and conductor in gambling is punished.
If the Act or Acts of the Offender are Punished Under RA 9995. Photo or Video Voyeurism
Another Article of the Code, Article 200 Not Applicable "Photo or video voyeurism" means the act of taking photo or video
The highly scandalous conduct should not be "expressly falling coverage of a person or group of persons performing sexual act or any
within any other article of this Code." similar activity or of capturing an image of the private area of a person
or persons without the latter's consent, under circumstances in which
such person/s has/have a reasonable expectation of privacy, or the act
Thus, if the scandalous conduct constitutes an act of of selling, copying, reproducing, broadcasting, sharing, showing or
lasciviousness (Art. 336 or Art. 339), even if committed publicly, exhibiting the photo or video coverage or recordings of such sexual act
the offender should not be prosecuted and punished under this or similar activity through VCD/DVD, internet, cellular phones and
article. similar means or device without the written consent of the person/s
involved, notwithstanding that consent to record or take photo or video
Where the accused scattered coconut remnants with human coverage of same was given by such persons.
excrements on the stairs, doors and floor of the balcony of the
"Private area of a person" means the naked or undergarment clad
public elementary school, it was held that the crime was other
genitals, public area, buttocks or female breast of an individual.
mischiefs under Art. 329, and not grave scandal under Art. 200.
Reasonable Expectation of Privacy
The Acts Must be Performed in a Public Place or Within the Under circumstances in which a person has a reasonable expectation of
Public Knowledge or View privacy" means believe that he/she could disrobe in privacy, without
The crime penalized by this article consists of acts which are being concerned that an image or a private area of the person was
offensive to decency and good customs which, having been being captured; or circumstances in which a reasonable person would
committed publicly, have given rise to public scandals to believe that a private area of the person would not be visible to the
persons who have incidentally witnessed the same. public, regardless of whether that person is in a public or private place.
When the Acts Were Performed in Private and Seen by One Section 4. Prohibited Acts. - It is hereby prohibited and declared
unlawful for any person:
Person, the Crime was Not Committed
Thus, when the act complained of was committed at night, in a
private house, and at a time when no one was present except (a) To take photo or video coverage of a person or group of persons
performing sexual act or any similar activity or to capture an image of
the accused, the mistress of the house, and one servant, these
the private area of a person/s such as the naked or undergarment clad
circumstances do not constitute the degree of publicity which genitals, public area, buttocks or female breast without the consent of
is an essential element of the crime. the person/s involved and under circumstances in which the person/s
has/have a reasonable expectation of privacy;
It involves a woman in a swimming pool naked on top of a four-
storey building. The issue boils down under public view, the (b) To copy or reproduce, or to cause to be copied or reproduced, such
spectators used binoculars. The use of binoculars shows that it photo or video or recording of sexual act or any similar activity with or
was not for public view. without consideration;
Highly Scandalous Act in a Car – you go back to the elements; (c) To sell or distribute, or cause to be sold or distributed, such photo
the test is that there must be performed in a public place or or video or recording of sexual act, whether it be the original copy or
public knowledge or view. reproduction thereof; or
What if you do it privately, but took a video and (d) To publish or broadcast, or cause to be published or broadcast,
broadcasted it to the public? 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
The gravamen of grave scandal, is that you performed it
through VCD/DVD, internet, cellular phones and other similar means or
publicly and affect those who are accidentally in the vicinity. But
device.
it may fall under Act No. 9995 of Photo and Video Voyeurism.
NOTE: Only under (a) absence of consent is material elements. Consent
is immaterial for acts (b) to (d).
Section 5. Penalties. - The penalty of imprisonment of not less that

three (3) years but not more than seven (7) years and a fine of not less
than One hundred thousand pesos (P100,000.00) but not more than
Five hundred thousand pesos (P500,000.00), or both, at the discretion
of the court shall be imposed upon any person found guilty of violating
Section 4 of this Act.
ARTICLE 201. Immoral doctrines, obscene publications But the artistic, the aesthetic and the pulchritude in the nude
and exhibitions, and indecent shows. — The penalty of body of the living woman may readily be transformed into an
prision mayor or a fine ranging from six thousand to twelve indecent and obscene object, by posture and movements of
thousand pesos, or both such imprisonment and fine, shall be such body which produce perceptible and discernible reaction
imposed upon: in the public or audience witnessing the same.
(1) Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
PEOPLE v. APARICI
(2) (a) the authors of obscene literature, published with
their knowledge in any form; the editors publishing The reaction of the public, therefore, during the performance of
such literature; and the owners/operators of the the dance by the accused, who had nothing on except nylon
establishment selling the same; patches over her breasts and a too abbreviated pair of nylon
(b) Those who, in theaters, fairs, cinematographs or panties to interrupt her stark nakedness, should be made the
any other place, exhibit, indecent or immoral plays, gauge in the determination whether her dancing or exhibition
scenes, acts or shows, whether live or in film, which was indecent or immoral.
are prescribed by virtue hereof, shall include those
which
And when the spectators were howling and shouting in
(1) glorify criminals or condone crimes;
(2) serve no other purpose but to satisfy the Tagalog: "Sige muna, sige, nakakalibog," because she was
market for violence, lust or pornography; swaying to and fro with the middle portion or her body, it was
(3) offend any race or religion; clear that her dancing was indecent and erotic.
(4) tend to abet traffic in and use of prohibited
drugs; and Mere Nudity in Pictures or Paintings, Not an Obscenity
(5) are contrary to law, public order, morals, and Thus, displaying and offering for sale to the public, key chains
good customs, established policies, lawful
with eye-appenders which consist of pictures in colors of nude
orders, decrees and edicts;
(3) Those who shall sell, give away or exhibit films, women, was held to be not violative of this article, because
prints, engravings, sculpture or literature which are persons of unquestioned morality acquire pictures of nude
offensive to morals. (As amended by PD Nos. 960 women and exhibit them freely in their house as works of art.
and 969).
As regards such pictures, the proper test is whether the motive
Publicity is Essential of the picture, as indicated by it, is pure or impure; or whether
This offense in any of the forms mentioned in the article is it is naturally calculated to excite impure imaginations.
committed only when there is publicity. If for private
consumption, mere possession of obscene materials without Mere Possession of Obscene Material Not Punishable
intention, considering that the purpose of the law. If for Mere possession of obscene materials without intention to sell,
personal consumption, there is again the element of publicity. exhibit, or give them away is not punishable under Article 201,
(Element of Publicity) considering the purpose of the law is to prohibit the
dissemination of obscene materials to the public. The offense
Publicly Expounding or Proclaiming “Doctrines Openly in any of the forms is committed only when there is publicity.
Contrary to Public Morals”
The word "moral" implies conformity with the generally The law does not require that a person be caught in the act of
accepted standards of goodness or rightness in conduct or selling, giving away or exhibiting obscene materials to be liable,
character, sometimes, specifically, to sexual conduct. for as long as the said material are offered for sale, displayed or
exhibited to the public. The petitioners engaged in selling and
NOTE: The author of obscene literature is liable only when it is exhibiting obscene materials. (Fernando v. Court of Appeals).
published with his knowledge. Writing obscene literature is not
punished, but the author is laible if it is published with his PEOPLE v. GO PIN: Pictures with slight degree of obscenity,
knowledge. In every case, the editor publishing is liable. not used for art’s sake but for commercial purposes, fall under
this article because it is desirous of satisfying their morbid
TEST OF OBSCENITY curiosity, taste, and lust and for love of excitement.
The test is whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open Obscene Publication and Indecent Shows Under RA 7610
to such immoral influences, and into whose hands such a Any person who shall hire, employ, use, persuade, induce or
publication may fall and also whether or not such publication coerce a child to perform in obscene exhibition and indecent
or act shocks the ordinary and common sense of men as an shows, whether live or in video, pose, or model in obscene
indecency. "Indecency" is an act against the good behavior and publications or pornographic materials or to sell or distribute
a just delicacy. the said materials shall suffer the penalty of prision mayor in its
medium period.
It may be conceded that nudity itself is not inherently indecent
or obscene. Mere nudity itself is not inherently indecent or If the child used as a performer, subject or seller/distributor is
obscene. Mere nudity in painting and sculpture is not obscenity below twelve (12) years of age, the penalty shall be imposed
as they may be considered pieces of art. in its maximum period.
PEOPLE v. KOTTINGER PITA v. PEOPLE

This involves the issue of whether or not pictures portraying the This involves the issue of whether or not pictures portraying the It
inhabitants of the country in native dress and as they appear and surveys all of the previous promulgated decisions on obscenity, it
can be seen in the regions in which they live, are obscene or analyzed and criticized previous decision. There was a smut
indecent. The pictures which was argued to have offended against campaign which confiscated and burned material which were
the law on account of being obscene or indecent disclose six alleged to obscene which included the Playboy Magazine. Pita
different postures of non-Christian inhabitants of the Philippines in argued that it was covered by the constitution. The CA ruled that it
the postcards. fall under warrantless search.
The word obscene and the term obscenity may be denied as People v. Kottinger; it ruled that obscenity upon circumstance on
meaning something offensive to chastity, or delicacy. “Indecency” the aggregate sense of the community. It would render hypothetical
is an act against behavior and a just delicacy. community standard.
• The test ordinarily followed by the courts in determining
whether a particular publication or other thing is obscene People v. Go Pin; it is caused reviewed, if for commercial purpose
within the meaning of the statutes, is whether the and if artistic values are commercialized and gain or profit was main
tendency of the matter charged as obscene, is to consideration, and audience did not care for the art. The primary
deprave or corrupt those whose minds are open to such manifestation is the purpose of commercialization making its
immoral influences and into whose hands a publication or obscene removing the artistic value.
other article charged as being obscene may fall.
• Another test of obscenity is that which shocks the People v. Padan; the concept of redeeming feature
ordinary and common sense of men as an indecency.
Gonzales v. Kalaw Katigbak; whether the determination of the
Rule: The pictures in question merely depict persons as they actually obscene, whether the average person who take dominantly on the
live, without attempted presentation of persons in unusual postures point of the material.
or dress. The aggregate judgment of the Philippine community, the
moral sense of all the people in the Philippines, would not be It is largely a judicial question, if the law enforcement if they want to
shocked by photographs of this type. We are convicted that the apprehend must submit the question to the court. You have
post-card pictures in this case cannot be characterized as offensive convinced the judge that there must be probable cause. It largely
to chastity, or foul, or filthy. rests on the discretion of the judge and weighed on a case to case.
We hold that pictures portraying the inhabitants of the country in The court here also applied the Reyes v. Bagatsing ruling wherein
native dress and as they appear and can be seen in the regions in the clear and present danger was applied in showing if whether or
which they live, are not obscene or indecent within the meaning of not the publication is also considered obscene.
the Libel Law. Disagreeing therefore with the appellant on his
technical argument but agreeing with him on his main contention, Rule: However, it was shown that the seizure was without a valid
it becomes our duty to order the dismissal of the information. search warrant, and that it does not fall under the valid instances of
warrantless searches. Regardless, the case still considered moot
PEOPLE v. PADAN and academic for the seized materials were already destroyed.
They were charged with Article 201 of RPC, hired Marina Padan and
Cosme Espinosa to act and perform sexual intercourse in presence FERNANDO v. COURT OF APPEALS
of many spectators. The court discussed took cognizance of morals Acting on report of sale and distribution of pornographic materials,
and indecency, in these cases, one might yet involve the element of officers of PNP-CIDG conducted surveillance and RTC Manila issued
art as the exhibition of the body. There was actual exhibition of the a search warrant for violation of Article 201 of the RPC against
sexual act, and acts of lasciviousness, there was no redeeming Fernando for the magazines and tapes with obscene contents.
feature. The penalty was fitting to the crime.
One such regulation is Article 201 of the Revised Penal Code. To be
The test of whether or not there was a redeeming value, the SC held liable, the prosecution must prove that
said that the naked body can be used for the sake of art, but in this (a) the materials, publication, picture or literature are
case, there was explicit exhibition of sexual intercourse, there is no obscene; and
redeeming value with respect to such an act. The ping pong stadium, (b) the offender sold, exhibited, published or gave away such
sold tickets, hired Marina and Cosme and made the public choose materials.
who they want Cosme to engage with; there were three sexual
positions, part of the public for policemen, who waited for the show Necessarily, that the confiscated materials are obscene must be
to end before they apprehended. proved. There is no perfect definition of obscenity, obscenity
should be treated on a case to case basis on the judicial
The court ruled that it cannot be argued for art of creativity, for there determination. They were able to follow the guidelines set in Pita v.
was no redeeming value in such, SC said that it was a violation under Court of Appeals and they were serve properly the search warrant.
Article 201, actual persons were involved. Whether or not there was
redeeming value. As to the question of obscenity, the determination of the trial court
is not arbitrary, it largely depends on the discretion of the judge. It
We hold that pictures portraying the inhabitants of the country in is difficult to answer due to the evolving concept of the idea of
native dress and as they appear and can be seen in the regions in morality.
which they live, are not obscene or indecent within the meaning of
the Libel Law. Disagreeing therefore with the appellant on his Thus, the case here showed the there was active engagement
technical argument but agreeing with him on his main contention, selling and exhibiting of obscene materials thus guilty.
it becomes our duty to order the dismissal of the information.
Articles are Forfeited force, or other forms of coercion, abduction, fraud, deception,
Regardless of the acquittal or conviction; the articles are abuse of power or of position, taking advantage of the
forfeited in favor of the state and are destroyed. vulnerability of the person, or, the giving or receiving of
payments or benefits to achieve the consent of a person having
ARTICLE 202. Prostitutes; Penalty. - For the purposes of control over another person
this article, women who, for money or profit, habitually
indulge in sexual intercourse or lascivious conduct, are For the purpose of exploitation which includes at a minimum,
deemed to be prostitutes. the exploitation or the prostitution of others or other forms of
sexual exploitation, forced labor or services, slavery, servitude
Any person found guilty of any of the offenses covered by this or the removal or sale of organs.
article shall be punished by arresto menor or a fine not
exceeding Twenty thousand pesos (P20,000), and in case of
recidivism, by arresto mayor in its medium period to prision The recruitment, transportation, transfer, harboring, adoption
correccional in its minimum period or a fine ranging from or receipt of a child for the purpose of exploitation or when the
Twenty thousand pesos (P20,000) to Two hundred thousand adoption is induced by any form of consideration for
pesos (P200,000), or both, in the discretion of the court. exploitative purposes shall also be considered as ‘trafficking in
persons’ even if it does not involve any of the means set forth
Article 202. Vagrancy and Prostitution in the preceding paragraph. [Section 3]
What remains is prostitution. As the term “prostitutes” is
defined in this article, a woman is a prostitute when: Elements of Human Trafficking [Act-Means-Purpose]
(1) she habitually indulges in 1. Act of refers to the recruitment, obtaining, hiring,
a. Sexual intercourse providing, offering, transportation, transfer,
b. Lascivious conduct maintaining, harboring, or receipt of persons with or
(2) for money or profit without the victim’s consent or knowledge, within or
across national borders.
NOTE: There can be a virgin prostitute, provided the
requirements under Article 202 for it is possible; it allows only 2. Means which by means of threat, or use of force, or
for lascivious conduct; it is enough to constitute prostitution. other forms of coercion, abduction, fraud, deception,
abuse of power or of position, taking advantage of the
RA 10158 on Repealing Vagrancy under Article 202: It is vulnerability of the person, or, the giving or receiving
anti-poor for vagrants and prostitution is due to the lack of of payments or benefits to achieve the consent of a
opportunity, and it is very unfair of those victims of person having control over another person
circumstances out of their control, who were victims of the
government’s failure to provide opportunities. The recruitment, transportation, transfer, harboring,
adoption or receipt of a child for the purpose of
PEOPLE v. SITON – Article 202 was held to be constitutional, exploitation or when the adoption is induced by any
particularly paragraph 2, for there are sufficient safeguards on form of consideration for exploitative purposes shall
the requirement of the prior determination and probable cause. also be considered as ‘trafficking in persons’ even if it
does not involve any of the means set forth in the
preceding paragraph.
REPUBLIC ACT 9208

Debt Bondage [EXAMPLE FORM OF COERCION]
Anti-Trafficking in Persons Act of 2003 It refers to the pledging by the debtor of his/her personal services or
labor or those of a person under his/her control as security or payment
Human trafficking indicts the society that tolerates the kind of for a debt, when the length and nature of services is not clearly defined
poverty and its accompanying desperation that compels our or when the value of the services as reasonably assessed is not applied
women to endure indignities. It reflects the weaknesses of that toward the liquidation of the debt.
society, even as it convicts those who deviantly thrive in
hopelessness. 3. Purpose of exploitation which includes at a minimum,
the exploitation or the prostitution of others or other
We should continue to strive for the best of our world, where forms of sexual exploitation, forced labor or services,
our choices of human intimacies are real choices, and not the slavery, servitude or the removal or sale of organs.
last resort take just to survive. Human intimacies enhance our
best and closest relationships. It serves … Sexual Exploitation
It refers to participation by a person in prostitution, pornography or the
What is human trafficking/trafficking in persons? production of pornography.
Refers to the recruitment, obtaining, hiring, providing, offering,
In exchange for money, profit or any other consideration or where the
transportation, transfer, maintaining, harboring, or receipt of participation is caused or facilitated by any means of intimidation or
persons with or without the victim’s consent or knowledge, threat, use of force, or other forms of coercion, abduction, fraud,
within or across national borders by means of threat, or use of deception, debt bondage, abuse of power or of position or of legal
process, taking advantage of the vulnerability of the person, or giving Issue: Should there be proof of actual sexual intercourse?
or receiving of payments or benefits to achieve the consent of a person A: The act of "sexual intercourse" need not have been
having control over another person; Or in sexual intercourse or consummated for the mere "transaction" i.e. that ‘solicitation’
lascivious conduct caused or facilitated by any means as provided in
for sex and the handing over of the "bust money" of Php.
this Act.
1,000.00 already consummated the said act.
PURPOSES
Issue: Is prior surveillance a prerequisite for the validity of an
Prostitution
It refers to any act, transaction, scheme or design involving the use of
entrapment or buy-bust operation?
a person by another, for sexual intercourse or lascivious conduct in
exchange for money, profit or any other consideration. No. A prior surveillance is not a prerequisite for the validity of
an entrapment or buy-bust operation, the conduct of which has
Pornography no rigid or textbook method. Flexibility is a trait of good police
It refers to any representation, through publication, exhibition, work. However, the police carry out its entrapment operations,
cinematography, indecent shows, information technology, or by for as long as the rights of the accused have not been violated
whatever means, of a person engaged in real or simulated explicit in the process, the courts will not pass on the wisdom thereof.
sexual activities or any representation of the sexual parts of a person
The police officers may decide that time is of the essence and
for primarily sexual purposes.
dispense with the need for prior surveillance.
Forced Labor
It refers to the extraction of work or services from any person by means This flexibility is important in cases involving trafficking of
of enticement, violence, intimidation or threat, use of, force or coercion, persons. The urgency of rescuing victims require immediate but
including deprivation of freedom, abuse of authority or moral deliberate action on the part of the law enforcers.
ascendancy, debt-bondage or deception including any work or service
extracted from any person under the menace of penalty. PEOPLE V. VILLANUEVA GR 210798, September 14, 2016
Involuntary Servitude Information

It refers to a condition of enforced and compulsory service induced by That sometime during the period from April 25, 2007 up to May 17,
means of any scheme, plan or pattern, intended to cause a person to 2007, in the city of Las Pinas, Philippines and within the jurisdiction of
believe that if he or she did not enter into or continue in such condition, this Honorable Court, the above-named accused, being the
he or she or another person would suffer serious harm or other forms owner/manager of ON TAP VIDEOKE, did then and there willfully,
of abuse or physical restraint, or threat of abuse or harm, or coercion unlawfully and feloniously recruit and hire [AAA], a 13- year old minor,
including depriving access to travel documents and withholding to work as a Guest Relations Officer (GRO) of said establishment,
salaries, or the abuse or threatened abuse of the legal process. thereby exploiting and taking advantage of her vulnerability as a child.
NOTE: Need not be consummated for these are following She was found ON TAP VIDEOKE wearing skimpy clothes and
purposes for the trafficking. The consent of the person is washing dishes, owner defended that he did not know. Stating
considered immaterial. Presumed that their consent is not that she was not employed as GRO and provided shelter.
freely given.
JURISPRUDENCE Issue: Does being the registered owner of an establishment per
se a sufficient ground to give rise to criminal liablity for acts of
PEOPLE V. CASIO GR 211465, December 3, 2014
trafficking committed in the establishment?
Information
That on or about the 3rd day of May 2008, at about 1:00 o’clock A.M., Rule: Recruiting, harboring, or maintaining a person for the
in the City of Cebu, Philippines, and within the jurisdiction of this purpose of exploitation are acts performed by persons who
Honorable Court, the said accused, with deliberate intent, with intent to may or may not be registered owners of establishments.
gain, did then and there hire and/or recruit AAA, a minor, 17 years old Thus, being the registered owner per se does not make one
and BBB for the purpose of prostitution and sexual exploitation, by criminally liable for the acts of trafficking committed in the
acting as their procurer for different customers, for money, profit or any establishment. What the prosecution should have done was to
other consideration, in Violation of Sec. 4, Par. (a), Qualified by Sec. 6,
prove the act of trafficking by other means, and not by mere
Par. (a), of R.A. 9208 (Qualified Trafficking in Persons).
showing that accused-appellant was the registered owner.
Issue: Is knowledge or consent if the victim a defense in

They failed to show the third element. Curiously, AAA was
trafficking? Can the accused validly argue that the trafficked
seen by the prosecution witnesses at the videoke bar only on
person has been habitually engaging in prostitution and is thus
the day the rescue operation was conducted. That AAA was
predisposed to such activities?
exploited could not be proven by her mere presence at the
videoke bar during the rescue operation. The prosecution
A: The victim’s consent is rendered meaningless due to the
should have presented evidence as to the nature of work done
coercive, abusive, or deceptive means employed by
by AAA, if any. Testimonies as to how often AAA was seen in
perpetrators of human trafficking. Even without the use of
the bar while entertaining customers could have also lent
coercive, abusive, or deceptive means, a minor’s consent is not
credence to the prosecution's contention that she was in the
given out of his or her own free will.
videoke bar because she was being exploited.
Since AAA was not presented in court, the prosecution was not SPECIFIC PUNISHABLE ACTS
able to offer direct evidence showing that accused-appellant
actually recruited, harbored or maintained AAA in the videoke Acts of Trafficking in Persons
bar for the purpose of exploiting her. Neither can private
complainant's testimony which merely revolved around the "(a) To recruit, obtain, hire, provide, offer, transport, transfer,
filing of the complaint be considered direct evidence. maintain, harbor, or receive a person by any means, including
those done under the pretext of domestic or overseas
Nowhere in the text of R.A. No. 9208 can it be inferred that a employment or training or apprenticeship, for the purpose of
presumption arises by the mere fact of presence of a child in a prostitution, pornography, or sexual exploitation;
videoke bar or similar establishment. Our survey of
jurisprudence likewise does not reveal such established "(b) To introduce or match for money, profit, or material,
presumption. More to the point, the constitutive crime of economic or other consideration, any person or, as provided for
trafficking through harboring or receipt of a person must be under Republic Act No. 6955, any Filipino woman to a foreign
specifically for purposes of exploitation. national, for marriage for the purpose of acquiring, buying,
offering, selling or trading him/her to engage in prostitution,
In other words, establishing mere presence without establishing pornography, sexual exploitation, forced labor, slavery,
the purpose therefor cannot be considered as an element of involuntary servitude or debt bondage;
trafficking. In this case, the private complainant's affidavit of
desistance categorically explained the child's presence in the
"(c) To offer or contract marriage, real or simulated, for the
videoke bar—for humanitarian reasons of providing shelter to
purpose of acquiring, buying, offering, selling, or trading them
a runaway minor.
to engage in prostitution, pornography, sexual exploitation,
forced labor or slavery, involuntary servitude or debt bondage;
Q. What about wearing skimpy clothes during rescue?
That AAA was wearing skimpy clothing similar to those worn by
the GROs at the videoke bar during the rescue operation is not "(d) To undertake or organize tours and travel plans consisting
inconsistent with the defense's position that AAA merely of tourism packages or activities for the purpose of utilizing and
sought refuge and shelter at the bar after she ran away from offering persons for prostitution, pornography or sexual
home. It is highly possible that AAA borrowed clothes from the exploitation;
videoke bar employees, considering that she ran away from
home and was unable to take all her belongings with her. "(e) To maintain or hire a person to engage in prostitution or
pornography;
That accused-appellant showed propensity for hiring workers
without permits is irrelevant in the case at bar. One may be "(f) To adopt persons by any form of consideration for
equipped with the proper permits and yet still be guilty of exploitative purposes or to facilitate the same for purposes of
trafficking. prostitution, pornography, sexual exploitation, forced labor,
slavery, involuntary servitude or debt bondage;
Q. What about the act of washing dishes? "(g) To adopt or facilitate the adoption of persons for the
Lastly, even if it be conceded that AAA was washing dishes at purpose of prostitution, pornography, sexual exploitation,
the back of the kitchen, such circumstance is still not forced labor, slavery, involuntary servitude or debt bondage;
inconsistent with the defense's position. As a token of gratitude
for allowing her to temporarily stay at the bar, AAA could have "(h) To recruit, hire, adopt, transport, transfer, obtain, harbor,
voluntarily done the chores. maintain, provide, offer, receive or abduct a person, by means
of threat or use of force, fraud, deceit, violence, coercion, or
In Dubio Pro Reo intimidation for the purpose of removal or sale of organs of said
The prosecution was not able to establish the case, the SC is person;
obliged to follow interpretation in favor of the acquittal of the
accused. The act of washing dishes or skimpy clothes was
"(i) To recruit, transport, obtain, transfer, harbor, maintain, offer,
interpreted out of voluntariness.
hire, provide, receive or adopt a child to engage in armed
activities 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
of this Act for purposes of forced labor, slavery, debt bondage
and involuntary servitude, including a scheme, plan, or pattern
intended to cause the person either:
"(1) To believe that if the person did not "(b) Executing, for a consideration, an affidavit of
perform such labor or services, he or she or consent or a written consent for adoption;
another person would suffer serious harm or
physical restraint; or "(c) Recruiting a woman to bear a child for the purpose
of selling the child;
"(2) To abuse or threaten the use of law or
the legal processes; and "(d) Simulating a birth for the purpose of selling the
child; and
"(k) To recruit, transport, harbor, obtain, transfer, maintain, hire,
offer, provide, adopt or receive a child for purposes of "(e) Soliciting a child and acquiring the custody
exploitation or trading them, including but not limited to, the thereof through any means from among hospitals,
act of baring and/or selling a child for any consideration or for clinics, nurseries, daycare centers, refugee or
barter for purposes of exploitation. Trafficking for purposes of evacuation centers, and low-income families, for the
exploitation of children shall include: purpose of selling the child."
"(1) All forms of slavery or practices similar to slavery, Accomplice Liablity

involuntary servitude, debt bondage and forced labor,
including recruitment of children for use in armed SEC. 4-B. Accomplice Liability. – Whoever knowingly aids, abets,
conflict; cooperates in the execution of the offense by previous or
simultaneous acts defined in this Act shall be punished in
"(2) The use, procuring or offering of a child for accordance with the provisions of Section 10(c) of this Act."
prostitution, for the production of pornography, or for
pornographic performances; Qualified Trafficking
"(3) The use, procuring or offering of a child for the "SEC. 6. Qualified Trafficking in Persons. – Violations of Section
production and trafficking of drugs; and 4 of this Act shall be considered as qualified trafficking:
"(4) The use, procuring or offering of a child for illegal "x x x

activities or work which, by its nature or the
circumstances in which it is carried out, is likely to
"(d) When the offender is a spouse, an ascendant, parent,
harm their health, safety or morals; and
sibling, guardian or a person who exercises authority over the
trafficked person or when the offense is committed by a public
"(l) To organize or direct other persons to commit the offenses officer or employee;
defined as acts of trafficking under this Act."
"x x x
Attempted Trafficking in Persons
"(f) When the offender is a member of the military or law

SEC. 4-A. Attempted Trafficking in Persons. – Where there are enforcement agencies;
acts to initiate the commission of a trafficking offense but the
offender failed to or did not execute all the elements of the
"(g) When by reason or on occasion of the act of trafficking in
crime, by accident or by reason of some cause other than
persons, the offended party dies, becomes insane, suffers
voluntary desistance, such overt acts shall be deemed as an
mutilation or is afflicted with Human Immunodeficiency Virus
attempt to commit an act of trafficking in persons. As such, an
(HIV) or the Acquired Immune Deficiency Syndrome (AIDS);
attempt to commit any of the offenses enumerated in Section
4 of this Act shall constitute attempted trafficking in persons.
"(h) When the offender commits one or more violations of
Section 4 over a period of sixty (60) or more days, whether
"In cases where the victim is a child, any of the following acts
those days are continuous or not; and
shall also be deemed as attempted trafficking in persons:
"(i) When the offender directs or through another manages the

"(a) Facilitating the travel of a child who travels alone
trafficking victim in carrying out the exploitative purpose of
to a foreign country or territory without valid reason
trafficking."
therefor and without the required clearance or permit
from the Department of Social Welfare and
Development, or a written permit or justification from
the child’s parent or legal guardian;
Use of Trafficked Persons
Section 13. Section 11 of Republic Act No. 9208 is hereby

amended to read as follows:
"SEC. 11. Use of Trafficked Persons. – Any person who buys or

engages the services of a trafficked person for prostitution shall
be penalized with the following: Provided, That the Probation
Law (Presidential Decree No. 968) shall not apply:
"(a) Prision Correccional in its maximum period to prision

mayor or six (6) years to twelve (12) years imprisonment and a
fine of not less than Fifty thousand pesos (P50,000.00) but not
more than One hundred thousand pesos
(P100,000.00): Provided, however, That the following acts shall
be exempted thereto:
"(1) If an offense under paragraph (a) involves sexual

intercourse or lascivious conduct with a child, the penalty shall
be reclusion temporal in its medium period to reclusion
perpetua or seventeen (17) years to forty (40) years
imprisonment and a fine of not less than Five hundred
thousand pesos (P500,000.00) but not more than One million
pesos (P1,000,000.00);
"(2) If an offense under paragraph (a) involves carnal knowledge

of, or sexual intercourse with, a male or female trafficking victim
and also involves the use of force or intimidation, to a victim
deprived of reason or to an unconscious victim, or a victim
under twelve (12) years of age, instead of the penalty prescribed
in the subparagraph above the penalty shall be a fine of not
less than One million pesos (P1,000,000.00) but not more than
Five million pesos (P5,000,000.00) and imprisonment
of reclusion perpetua or forty (40) years imprisonment with no
possibility of parole; except that if a person violating paragraph
(a) of this section knows the person that provided prostitution
services is in fact a victim of trafficking, the offender shall not
be likewise penalized under this section but under Section 10
as a person violating Section 4; and if in committing such an
offense, the offender also knows a qualifying circumstance for
trafficking, the offender shall be penalized under Section 10 for
qualified trafficking. If in violating this section the offender also
violates Section 4, the offender shall be penalized under Section
10 and, if applicable, for qualified trafficking instead of under
this section;
"(b) Deportation. – If a foreigner commits any offense described

by paragraph (1) or (2) of this section or violates any pertinent
provision of this Act as an accomplice or accessory to, or by
attempting any such offense, he or she shall be immediately
deported after serving his or her sentence and be barred
permanently from entering the country; and
"(c) Public Official. – If the offender is a public official, he or she

shall be dismissed from service and shall suffer perpetual
absolute disqualification to hold public, office, in addition to
any imprisonment or fine received pursuant to any other
provision of this Act."
CRIMINAL LAW II Article 208. Dereliction of duty in

Nonfeasance
REVISED PENAL CODE prosecution of offenses.
Article 209. Betrayal of trust by
TITLE SEVEN an attorney or solicitor – Committed by attorney
revelation of secrets.
CRIMES COMMITTED BY PUBLIC OFFICERS
Article 210. Direct bribery
Article 211. Indirect bribery
CHAPTER ONE Malfeasances in office
Article 211-A Qualified Bribery
GENERAL PROVISIONS that a public officer can
Article 212. Corruption
commit.
RA 3019 – Anti Graft and
ARTICLE 203. Who are public officers. – For the purpose of Corrupt Practices Act
applying the provisions of this and the preceding titles of this
book, any person who, by direct provision of law, popular
election or appointment by competent authority, shall take Misfeasance Malfeasance Nonfeasance
part in the performance of public functions in the It is the improper It is the It is the omission
Government of the Philippine Islands, or shall perform in said performance of performance of of some act
Government or in any of its branches public duties as an some act which some act which which ought to
employee, agent, or subordinate official, of any rank or class, might be lawfully ought not to be be performed.
shall be deemed to be a public officer.
done. done. Prohibited. (Prevaricacion)
The Term “Public Offers” Embraces Every Section One. – Dereliction of Duty
Public Servant from the Highest to Lowest
The definition is quite comprehensive, embracing as it does,
ARTICLE 204. Knowingly rendering unjust judgment. –
every public servant from the highest to the lowest. For the
Any judge who shall knowingly render an unjust judgment in
purpose of the Penal Code, it obliterates the standard any case submitted to him for decision, shall be punished by
distinction in the law of public officers between “officer” and prision mayor and perpetual absolute disqualification.
“employee” (Maniego v. People, 88 Phil. 494).
ELEMENTS
Requisites to be Considered as Public Officer
1. That the offender is a judge; (First and Second Levels)
1. Taking part in the performance of public functions in
2. That he renders a judgment in a case submitted to him
the government, or performing in said Government or
for decision; (It must be a final judgment)
in any of its branches public duties as an employee,
3. That the judgment is unjust; (It can be point of law or fact)
agent or subordinate official, of any rank or class; and
4. That the judge knows that his judgment is unjust.
2. That his authority to take part in the performance of
Unjust Judgment, Defined (Legal or Factual or Both) DOLO
public functions or to perform public duties must be –
An unjust judgment is one which is contrary to law, or is not
supported by the evidence, or both. It is rendered knowingly
a. Direct provision of law, or
when it is made deliberately and maliciously. Knowingly
b. By popular election, or
meaning consciously intelligently, willfully, or intentionally.
c. By appointment by competent authority.
Bad Faith is the Ground of Liability

NOTE: One appointed as laborer in the government is not a
An unjust judgment is one which is contrary to law or is not
public officer, but temporary performance of public functions
supported by evidence, or both. The source of an unjust
by a laborer makes him a public officer.
judgment may either be:
(a) Error
CHAPTER TWO
(b) Ill-will or revenge
MALFEASANCE AND MISFEASANCE IN OFFICE (c) Bribery
Crimes under this Chapter There is no liability at all for a mere error, it is well settled that
Article 204. Knowingly rendering a judicial officer, when required to exercise his judgment or
unjust judgment discretion is not liable criminally for any error which he
Article 205. Rendering judgment commits, provided that he acts in good faith. Bad faith is
Misfeasances in office
through negligence therefore the ground for liability. If in rendering judgment the
that a judge can
Article 206. Rendering unjust judge fully knew that the same was unjust in the sense
commit.
interlocutory order aforesaid, then there is bad faith.
Article 207. Malicious delay in
the administration of justice However, there must be evidence that the judgment is unjust,
and it cannot be presumed. The judgment must be contrary to
law and not support by evidence.
Article 204 does Not Apply to Members of Collegiate Court In a motion to quash, it can be considered as a final judgment
Respondents should know that the provisions of Art. 264 as to when it leads to a dismissal to the case because it is granted,
"rendering knowingly unjust judgment" refer to an individual but when a motion to quash is dismissed it is considered as an
judge who does so "in any case submitted to him for decision" interlocutory order, like an preliminary attachment.
and even then, it is not the prosecutor who would pass
judgment on the "unjustness" of the decision rendered by him ELEMENTS
but the proper appellate court with jurisdiction to review the 1. That offender is judge;
same, either the Court of Appeals and/or the Supreme Court. 2. That he performs any of the following acts:
Respondents should likewise know that said penal article has a. Knowingly renders unjust interlocutory order
no application to the members of a collegiate court such as this or decree; or
Court or its Divisions who reach their conclusions in b. Renders a manifestly unjust interlocutory
consultation and accordingly render their collective judgment order or decree through inexcusable
after due deliberation (In Re: Laureta, GR 68694, 1987). negligence or ignorance.
ARTICLE 205. Judgment rendered through negligence. – ARTICLE 207. Malicious delay in the administration of
Any judge who, by reason of inexcusable negligence or justice. – The penalty of prision correccional in its minimum
ignorance, shall render a manifestly unjust judgment in any period shall be imposed upon any judge guilty of malicious
case submitted to him for decision shall be punished by delay in the administration of justice.
arresto mayor and temporary special disqualification.
ELEMENTS
ELEMENTS 1. That the offender is a judge.
1. That the offender is a judge. 2. That there is a proceeding in court;
2. That he renders a judgment in a case submitted to him 3. That he delays the administration of justice;
for decision. 4. That the delay is malicious, that is, the delay is caused
3. That the judgment is manifestly unjust. by the judge with deliberate intent to inflict damage
4. That it is due to his inexcusable negligence or on either party in the case.
ignorance.
Mere Delay Without Malice is Not a Felony
Manifestly Unjust Judgment (CULPA) Mere delay without malice in holding trials or rendering
It is so manifestly contrary to law, that even a person having judgments does not necessarily bring the judge within the
meager knowledge of the law cannot doubt the injustice. operation of this law. There must be intent to delay to injure.
Abuse of Discretion or Mere Error of Judgment;

ARTICLE 208. Prosecution of offenses; negligence and
Not Punishable tolerance. – The penalty of prision correccional in its
Although there may be abuse of discretion in issuing an order, minimum period and suspension shall be imposed upon any
it does not necessarily follow that there is bad faith or that said public officer or officer of the law, who, in dereliction of the
abuse of discretion signifies ignorance of the law on the part of duties of his office, shall maliciously refrain from instituting
a judge. Abuse of discretion by a trial court does not necessarily prosecution for the punishment of violators of the law, or
mean ulterior motive, arbitrary conduct or willful disregard of a shall tolerate the commission of offenses.
litigant's rights. (Evangelista vs. Hon. Baes, 61 SCRA 475)
ACTS PUNISHABLE (Prevaricacion)
Mere error of judgment cannot serve as basis for a charge of 1. By maliciously refraining from instituting prosecution
knowingly rendering an unjust judgment, where there is no against violators of the law.
proof or even allegation of bad faith, or ill motive, or improper 2. By maliciously tolerating the commission of offense.
consideration. (Yaranon v. Judge Rubio, 66 SCRA 67)
The term negligence is means to be the neglect of the duties of
ARTICLE 206. Unjust interlocutory order. – Any judge who his office by maliciously failing to move prosecution of offense.
shall knowingly render an unjust interlocutory order or
decree shall suffer the penalty of arresto mayor in its Elements of Dereliction of Duty in Prosecution of Offenses
minimum period and suspension; but if he shall have acted by 1. That the offender is a public officer or officer of the
reason of inexcusable negligence or ignorance and the law who has a duty to cause the prosecution of, or to
interlocutory order be manifestly unjust, the penalty shall be prosecute offenses.
suspension.
2. That there is dereliction of the duties of his office; that
is knowing the commission of the crime, he does not
Interlocutory Order, Defined cause the prosecution of the criminal or knowing that
An interlocutory order is an order which is issued by the court a crime is about to be committed, he tolerates its
between the commencement and the end of a suit or action commission.
and which decides some point or matter, but which, however, 3. That the offender acts with malice and deliberate
is not a final decision of the matter in issue. intent to favor the violator of the law.
Who Can Be the Offender of Article 208? “Maliciously” Signifies Deliberate Evil Intent
The offender under Article 208 is either: The offender must act with malice. Thus, the municipal
(a) A public officer; or president who held cockfights on the days not authorized by
(b) An officer of the law law, to raise funds for the construction of a ward in the
provincial hospital, was not liable under Art. 208 for the word
The phrase "officer of the law" includes all those who, by reason "maliciously" means that the action complained of must be the
of the position held by them, are duty-bound to cause the result of a deliberate evil intent and does not cover a mere
prosecution and punishment of the offenders. voluntary act.
The term "public officer" extends to officers of the prosecution The accused was convicted only of illegal cockfighting. (People
department, whose duty is to institute criminal proceedings for vs. Malabanan, 62 Phil. 786) A dereliction of duty caused by
felonies upon being informed of their perpetration. poor judgment or honest mistake is not punishable.
There Must be a Duty on the Part of the Public Officer to Crime Must be Proved Before Conviction for Dereliction
Prosecute or to Move the Prosecution of the Offender The crime committed by the law-violator must be proved first.
Note that Art. 208 uses the phrase "who, in dereliction of the If the guilt of the law-violator is not proved, the person charged
duties of his office." Hence, the public officer liable under Art. with dereliction of duty under this article is not liable. (U.S. vs.
208 must have a duty to prosecute or to move the prosecution Mendoza, supra).
of the violation of the law. Thus, the following have such duty:
1. Chief of police. (People vs. Rosales, G.R. No. 42648) How Do You Prove?
2. Barrio lieutenant. (U.S. vs. Mendoza, 23 Phil. 194) You must show a judgment of conviction on the part of the
person. In other words, if the offender refuses to prosecution,
A chief of police who, in breach of official duty, failed to the person sought to be prosecuted by other person and must
prosecute a jueteng collector, in that he failed to file the be convicted in order. The crime must be proved in order to be
corresponding criminal action against the latter who was convicted under Article 208.
caught possessing jueteng lists, was held liable under Art. 208.
(People vs. Mina, 65 Phil. 621) NBI, OMB, PDEA Agent ARTICLE 209. Betrayal of trust by an attorney or solicitor
– Revelation of secrets. – In addition to the proper
A barrio lieutenant (now barrio captain) who, in neglect of his administrative action, the penalty of prision correccional in its
duty, fails to move the prosecution of, and punishment for, a minimum period, or a fine ranging from Forty thousand pesos
crime of arson, of which he is informed, would, in case the (P40,000) to Two hundred thousand pesos (P200,000) or
alleged crime was afterwards duly proven, be guilty of both, shall be imposed upon any attorney-at-law or any
person duly authorized to represent and/or assist a party to
prevarication. (U.S. vs. Mendoza, 23 Phil. 194)
case who, by any malicious breach of professional duty or of
inexcusable negligence or ignorance, shall prejudice his
“Shall Maliciously Refrain from Instituting Prosecution” client, or reveal any of the secrets of the latter learned by him
Thus, a fiscal who, knowing that the evidence against the in his professional capacity.
accused is more than sufficient to secure his conviction in court,
drops the case, is liable and may be punishable under Art. 208. The same penalty shall be imposed upon an attorney-at-law
or any person duly authorized to represent and/or assist a
party to a case who, having undertaken the defense of a client
But the fiscal or the city attorney, as prosecuting officer, is under
or having received confidential information from said client
no compulsion to file the corresponding information based
in a case, shall undertake the defense of the opposing party in
upon a complaint, where he is not convinced that the evidence the same case, without the consent of his first client.
gathered or presented would warrant the filing of an action in
court. Of course, the power of the City Attorney or prosecuting
Acts Punishable as Betrayal of Trust by Attorney-At-Law
fiscal in connection with the filing and prosecution of criminal
1. By causing damage to his client, either (1) by any
charges in court is not altogether absolute; but the remedy is
malicious breach of professional duty, (2) by
the filing with the proper authorities or court of criminal or
inexcusable negligence or ignorance. (PROOF OF DAMAGES)
administrative charges if the alleged offended parties believe
that the former maliciously refrained from instituting actions for
2. By revealing the secrets of his client learned by him in
the punishment of violators of the law. (Vda. de Bagatua, et al.
his professional capacity. (DAMAGE IS NOT NECESSARY)
vs. Revilla and Lomhos, 104 Phil. 392)
3. Undertaking defense of opposing party in same case,

“Shall Tolerate the Commission of Offenses”
without consent of first client, after having undertaken
It shown that A approached the Chief of Police of a town and
the defense of first client or received confidential
asked him not to raid his (A's) gambling house for two days.
information from said client. (DIRECT CONFLICT OF INTEREST)
Because A was his friend, the Chief of Police even instructed his
policemen not to raid that house for two days. Gambling games
NOTE: If the client consent to the attorney’s taking the defense
were played in A's house. In this case, the Chief of Police is liable
of the other party, there is no crime committed.
under Art. 208.
Section Two. – Bribery First Element. – The Offender is a Public Officer

The definition of "public officers" in Art. 203 is quite
ARTICLE 210. Direct bribery. – Any public officer who shall comprehensive, embracing as it does, every public servant from
agree to perform an act constituting a crime, in connection the highest to the lowest. For the purpose of the Penal Code, it
with the performance of his official duties, in consideration of obliterates the standard distinction in the law of public officers
any offer, promise, gift or present received by such officer, between "officer" and "employee." For the purpose of
personally or through the mediation of another, shall suffer punishing bribery, the temporary performance of public
the penalty prision mayor in its medium and maximum functions is sufficient to constitute a person a public officer.
periods and a fine of not less than three time the value of the
gift, in addition to the penalty corresponding to the crime
agreed upon, if the same shall have been committed. NOTE: It is made applicable to assessors, arbitrators, appraisal
and claim commissioners, experts or any other persons
If the gift was accepted by the officer in consideration of the performing public duties.
execution of an act which does not constitute a crime and the
officer executed said act, he shall suffer the same penalty Second Element. – Gift Received Personally or Intermediary
provided in the preceding paragraph; and if said act shall not The gift or present may be received by the public officer himself
have been accomplished, the officer shall suffer the penalties
or through a third person. Bribery exists, not only:
of prision correccional in its medium period and a fine of not
(1) when the gift is offered voluntarily by a private person,
less than twice the value of such gift.
(2) when the gift is solicited by a public officer and the
If the object for which the gift was received or promised was private person voluntarily delivers it to the public
to make the public officer refrain from doing something officer, but also;
which it was his official duty to do, he shall suffer the (3) when the gift is solicited by a public officer, as the
penalties of prision correccional in its maximum period to consideration for his refraining from the performance
prision mayor in its minimum period and a fine of not less of an official duty and the private person gives the gift
than three times the value of such gift.
for fear of the consequences which would result if the
In addition to the penalties provided in the preceding officer performs his functions.
paragraphs, the culprit shall suffer the penalty of special
temporary disqualification. Accepted Offer or Promise is Already Sufficient
In the 1st paragraph of Art. 210, the law uses the phrase "in
The provisions contained in the preceding paragraphs shall consideration of any offer, promise," etc.
be made applicable to assessors, arbitrators, appraisal and
claim commissioners, experts, or any other persons
Hence, a promise of gift to a public officer who accepts such
performing public duties.
promise is sufficient. But in the 2nd paragraph of Art. 210, the
law uses the phrase "the gift was accepted by the officer. "The
Acts Punishable in Direct Bribery words "offer" and "promise" are not used in the 2nd paragraph.
1. By agreeing to perform or by performing, in
consideration of any offer, promise, gift, or present – The Offer Must be Accept by the Public Officer
an act constituting a crime, in connection with the In case there is only an offer of gift or a promise to give
performance of his official duties. something, the offer or the promise must be accepted by the
2. By accepting a gift in consideration of the execution public officer.
of an act which does not constitute a crime, in
connection with the performance of his official duty. If the offer is not accepted by the public officer, only the person
3. By agreeing to refrain, or by refraining, from doing offering the gift or present is criminally liable for attempted
something which it is his official duty to do, in corruption of public officer under Art. 212 in relation to Art. 6.
consideration of gift or promise. The public officer is not liable.
Elements of Direct Bribery The Gift Must have Value or Capable of Pecuniary Value
a. Offender be a public officer within the scope of 203. The thing offered or accepted may be money, property, services
b. Offender accepts an offer or a promise of receives a or anything else of value. It must be of some value, but any
gift or present by himself or through another. value is sufficient.
c. That such offer or promise be accepted, or gift or
present received by their public offer – An agreement to reinstate a friend of a mayor who was
1. With a view to committing some crime; or dismissed, provided the mayor would execute a certain act in
2. In consideration of the execution of an act which connection with his official duty, was held to be a bribe.
does not constitute a crime, but the act is unjust;
3. To refrain from doing something which it is his But under the Revised Penal Code, the fine which is one of the
official duty to do penalties imposed for the commission of direct bribery is based
d. That the act which offender agrees to perform or on the value of the gift. The reinstatement of the friend of the
which he executed be connected with the mayor seems to be not capable of pecuniary estimation.
performance of his official duties.
Third Element. – Three Ways of Committing Bribery SECOND FORM OF DIRECT BRIBERY
There are three ways of committing direct bribery under Article In the crime of direct bribery denned in the second paragraph,
210 of the Revised Penal Code: there appear the same elements as those of the offense defined
1. An action to commit some crime in the first paragraph, with the sole exception that the act
2. Execution of an act which does not constitute a crime, intended by the officer, although unjust, does not amount to
but the act is unjust crime.
3. To refrain from doing something which it is his official
duty to do. Examples of Second Form of Bribery
1. If you have grudge against the accused you pay police officer
FIRST FORM OF DIRECT BRIBERY serve the warrant which should be daytime, to cause
The act to be performed by the public officer must constitute a inconvenience, you pay police to effectuate search warrant at
nighttime or you pay sheriff to serve summons late.
crime in the first form of direct bribery. Viada says that to
2. In the case of U.S. vs. Gacutan, 28 Phil. 100, the bribery
constitute the crime of robbery four things are necessary. committed by the justice of the peace falls under this form of
1. That the defendant be a public officer; bribery, because when he decided the case in favor of the
2. That he has received either personally or through party who gave him a female carabao worth P80, without
another gifts or presents or accepted offers or regard to the evidence, he executed an act which is not
promises; criminal, for there was no evidence that the decision was
3. That such reception of gifts or presents or acceptance unjust and that he knew it to be unjust. The act he executed
of offers or promises has been for the purpose of was unjust, for it certainly was an act of injustice to convict a
person charged with a crime without regard to what the
executing a crime; and
evidence in the case may be.
4. That the act constituting the crime relates to the
exercise of the office which the public officer Act Does Not Amount to a crime and is Connected with the
discharges. Performance of his Official Duty
Thus, direct bribery is committed when a police officer directly
NOTE: A promise to give gift to a promise to commit an received the bribe money in exchange for the recovery of stolen
unlawful act by, a public officer will be sufficient in direct bribery cylinder tanks, which was an act not constituting a crime, and
under the first paragraph Article 210. MERE AGREEMENT ENOUGH his act of receiving money was connected with his duty as a
police officer.
Instance. The stenographer of the court accepted a promise of PI 00
from an individual and promised to alter the notes taken by him during
Is Mere Promise to Give a Gift and Mere Promise to Execute
the trial of a case. The act which the stenographer promised to do
would constitute the crime of falsification under Art. 171 of the Code. It
an Act Not Constituting a Crime Sufficient?
is not necessary that the evidence shows an express promise. It is Under the 2nd paragraph of Sec. 210, if the gift was accepted
sufficient if from all the circumstances in the case, such promise can be by the public officer in consideration of the execution of an act
implied. which does not constitute a crime, there are two penalties
provided: MUST BE ACTUAL ACCEPTANCE BY OFFICER
Thus, if the stenographer of the court who had accepted a promise of (a) prision correccional in its minimum and medium
P100 from an individual altered the notes in accordance with the periods and a fine of not/ less than the value of the
agreement, he shall suffer, in addition to the penalty corresponding to
gift and not more than three times such value — if the
the crime of bribery, the penalty for the crime of falsification by a public
officer or employee under Art. 171 of the Code.
offender executed said act;
(b) arresto mayor in its maximum period and a fine of not
The Act Which the Public Officer Agrees to Perform Must less than the value of the gift and not more than twice
be Connected with the Performance of Official Duties such value — if said act shall not have been
The act which the public officer agreed to perform must be an accomplished.
act in discharge of his legal duty. PROMISE + PROMISE + 1
Likewise, a mere promise to give a gift is not sufficient. The 2nd
For example, a municipal president who ordered the release of a paragraph of Art. 210 was taken from Art. 382 of the old Penal
prisoner upon receiving from the latter the sum of P20, instead of Code, which punished any public officer "who shall agree to
obeying the orders of the provincial governor requiring him to send the commit any act of injustice not constituting a crime in
prisoner to the provincial capital, is guilty of direct bribery, because, connection with the exercise of the powers of his office in
"having the prisoner under his charge, it was part of his official duty to consideration of an offer or promise or of any gift or present."
obey the orders of the provincial governor in this respect."
It must not only be mere acceptance, there must be actual
acceptance on your part with an intention to appropriate
The act need not, be statutory duty; it is sufficient if the action
thing as one’s own.
to be affected by the bribe be part of the established procedure
of a governmental agency. It is not bribery if the act is in
If the information does not allege whether the public officer
discharge of a mere moral duty. PROMISE + PROMISE =/= 2
executed the act or not, the case would fall under paragraph 2
of Art. 210 which distinguishes between the act which was
But if act agreed to be performed is so foreign to the duties of
executed and that which was not accomplished.
the office as to lack even color of authority, there is no bribery.
THIRD FORM OF DIRECT BRIBERY Also, the fact that the offender takes advantage of his office and
In this kind of direct bribery, the object for which the gifts are position is a betrayal of the trust reposed on him by the public.
received or promised is to make the public officer refrain from It is a conduct clearly contrary to the accepted rules of right and
doing something which it is his official duty to do. duty, justice, honesty and good morals. In all respects, direct
bribery is a crime involving moral turpitude.
Discussion. The first two paragraphs refer to malfeasance and
misfeasance. But the act of refraining from doing something must not
ARTICLE 211. Indirect bribery. – The penalties of prision
be in commission of crime it would fall under Article 210(1) like
correccional, suspension in its minimum and medium
prevaricacion like refraining from prosecuting someone and that is
periods, and public censure shall be imposed upon any public
considered a crime under Article 208.
officer who shall accept gifts offered to him by reason of his
office.
First Form of Direct Bribery is Committed if by Refraining
from Doing an Act the Public Officer Commits a Crime
It must be noted that if the act of refraining from doing ELEMENTS
something, which is the official duty of the officer, constitutes a 1. that the offender is a public officer.
crime in itself, the bribery should not be punished under this 2. That he accepts gifts.
paragraph but under paragraph 1 of Art. 210. 3. The said gifts are offered to him by reason of office.
Such would happen if a public officer, in violation of the duties Gift is Usually Given to the Public Officer in Anticipation of
of his office, would, for a gift or promise, abstain from Future Favor from the Public Officer
instituting an action for the punishment of an offense. Note that A public officer should not accept any gift offered to him,
the refraining constitutes the crime of prevarication (Art. 208) because such gift is offered in anticipation of future favor
and should, therefore, be punished not under the third from him. Such gift received now will in the future corrupt him
paragraph but under the first paragraph of Art. 210. or make him omit the performance of his official duty.
Prevaricacion distinguished from Direct Bribery Example. A veterinarian of the Board of Health, entrusted with the
The third form of direct bribery (Art. 210) is committed by duty of examining mules which were offered for sale to the
Government, received a certain amount of money from the vendor of
refraining from doing something which pertains to the official
mules after the latter had received from the Government the purchase
duty of the officer. Prevaricacion (Art. 208) is committed in the
price of the mules sold. There was no evidence to the effect that the
same way. In this regard, the two felonies are similar. money was given for the purpose of preventing the veterinarian from
doing or inducing him to do something pertaining to his officer. He
But they differ in that in bribery, the offender refrained from accepted the gift offered to him by reason of his public office.
doing his official duty in consideration of a gift received or
promised. This element is not necessary in the crime of “Who Shall Accept Gifts Offered to Him”
prevaricacion. Will there be indirect bribery, if a public officer accepts a
promise of gifts made to him by reason of his office?
In Bribery, the Gift must be given to
Public Officer to Corrupt Him Art. 211 does not use the word "promise," but the phrase "shall
A, a cabeza de barangay and barrio lieutenant, accepted cocks, hens, accept gifts." The essential ingredient of direct bribery as
bamboo, and other articles under promise to relieve the persons from defined on Article 211 of the Revised Penal Code is that the
whom he had obtained them of the obligation to perform certain
public officer concerned must have accepted the gift or
duties.
material consideration.
Held: This is not bribery, but estafa (by means of deceit), because the
things were given to him by the taxpayers not to corrupt him and to There must be a clear intention on the part of the public officer
induce him to omit the performance of his duty but were demanded by to take the gift so offered and consider the same as his own
him. (U.S. vs. Jader, 1 Phil. 297) property from then on, such as putting away the gift for
safekeeping or pocketing the same.
Note: It is estafa, because by promising the people that they would be
relieved of the obligation to perform certain duties, the accused
Mere physical receipt unaccompanied by any other sign,
pretended to possess authority to do so.
circumstance or act to show such acceptance is not sufficient to
lead the court to conclude that the crime of indirect bribery has
Direct Bribery is a Crime Involving Moral Turpitude
been committed. To hold otherwise will encourage
Moral turpitude can be inferred from the third element. The fact
unscrupulous individuals to frame up public officers by simply
that the offender agrees to accept a promise or gift and
putting within their physical custody some gift, money or other
deliberately commits an unjust act or refrains from performing
property. (Formilleza vs. Sandiganbayan, 159 SCRA 1)
an official duty in exchange for some favors, denotes a
malicious intent on the part of the offender to renege on the
NOTE: Indirect bribery has no attempted or frustrated stage of
duties which he owes his fellowmen and society in general.
execution, because it is committed by accepting gifts offered to
the public officer by reason of his office. If he does not accept
the gifts, no crime.
Direct Bribery Indirect Bribery For violation of this Decree, the penalty of imprisonment for not less
In both crimes, public officer receives gift. than one (1) year nor more than five (5) years and perpetual
There is an agreement Usually, no such agreement disqualification from public office shall be imposed. The official or
employee concerned shall likewise be subject to administrative
between the public officer exists. Without condition to
disciplinary action and, if found guilty, shall be meted out the
and the giver of the gift or perform or not to perform.
penalty of suspension or removal, depending on the seriousness of
present. the offense.
The offender agrees to It is not necessary that the
perform or performs an act officer should do any Any provision of law, executive order, rule or regulation or circular
or refrains from doing particular act or even inconsistent with this Decree is hereby repealed or modified
something, because of the promise to do an act, as it is accordingly.
gift or promise. enough that he accepts gifts
offered to him by reason of ARTICLE 211-A. Qualified bribery. – If any public officer is
his office. entrusted with law enforcement and he refrains from
arresting or prosecuting an offender who has committed a
Indirect Bribery from Article 210(2) on Direct Bribery crime punishable by reclusion perpetua and/or death in
The case of People vs. Pamplona, C.A., 51 O.G. 4116, might be consideration of any offer, promise, gift or present, he shall
mistaken for a case of direct bribery under the 2nd paragraph suffer the penalty for the offense which was not prosecuted.
of Art. 210, because there was an agreement between the
If it is the public officer who asks or demands such gift or
public officer and the giver of the gift and that the act which
present, he shall suffer the penalty of death. (RA 7659).
the public officer executed did not constitute a crime.
But in direct bribery under the 2nd paragraph of Art. 210, the ELEMENTS
act executed must be unjust. In the Pamplona case, the act 1. If any public officer is entrusted with law enforcement;
executed by the accused (preparing the voucher) not unjust. 2. That the offender refrains from arresting or
prosecuting an offender who has committed a crime
PRESIDENTIAL DECREE NO. 46 punishable by reclusion perpetua and/or death;
Making it Punishable for Public Officials and Employees to 3. That the offender refrains from arresting or
Receive, and For Private Persons to Give, prosecuting the offender in consideration of promise,
Gifts on Any Occasion, Including Christmas gift or present. (DIFFERENCE FROM PREVARICACION)
WHEREAS, under existing laws and the civil service rules, it is ARTICLE 212. Corruption of Public Officials. – The same
prohibited to receive, directly or indirectly, any gift, present or any penalties imposed upon the officer corrupted, except those of
other form of benefit in the course of official duties; disqualification and suspensions, shall be imposed upon any
person who shall have made the offers or promises or given
WHEREAS, it is believed necessary to put more teeth to existing laws the gifts or presents as described in the preceding articles.
and regulations to wipe out all conceivable forms of graft and
corruption in the public service, the members of which should not
ELEMENTS
only be honest but above suspicion and reproach; and
1. That the offender makes offers or promises or gives
WHEREAS, the stoppage of the practice of gift-giving to gifts to a public officer.
government men is a concrete step in the administration's program 2. That the offers or promises are made or the gifts or
of reforms for the development of new moral values in the social presents given to a public officer, under circumstances
structure of the country, one of the main objectives of the New that will make the public officer liable for direct bribery
Society; or indirect bribery.
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the

Offender is the Giver of Gift or Offeror of Promise
Philippines, by virtue of the powers vested in me by the Constitution
as Commander-in-Chief of all the Armed Forces of the Philippines, The offender is the giver of gifts or offeror of promise. The
and pursuant to Proclamation No. 1081 dated September 21, 1972, public officer sought to be bribed is not criminally liable, unless
and General Order No. 1 dated September 22, 1972, do hereby he accepts the gift or consents to the offer of the offender. Art.
make it punishable for any public official or employee, whether of 212 punishes the person who made the offer or promise or
the national or local governments, to receive, directly or indirectly, gave the gift, even if the gift was demanded by the public
and for private persons to give, or offer to give, any gift, present or officer and the offer was not made voluntarily prior to the said
other valuable thing to any occasion, including Christmas, when
demand by the public officer.
such gift, present or other valuable thing is given by reason of his
official position, regardless of whether or not the same is for past
favor or favors or the giver hopes or expects to receive a favor or Bribery Usually Proved by Evidence in Entrapment
better treatment in the future from the public official or employee In view of the fact that it is hard to prove bribery, for the briber
concerned in the discharge of his official functions. Included within himself is punished by law and he is usually the only one who
the prohibition is the throwing of parties or entertainments in honor could give direct evidence, ways and means are resorted to, to
of the official or employees or his immediate relatives. catch the public officer while he is in the act of obtaining bribes.
This is known as entrapment.
PRESIDENTIAL DECREE NO. 749 ➢ Case in point:

Granting Immunity from Prosecution from Givers of Dacumos v. Sandiganbayan, 195 SCRA 833
Bribes and Other Gifts and to their Accomplices
in Other Graft Cases Against Public Officers DACUMOS v. SANDIGANBAYAN 195 SCRA 833
SUMMARY: Dacumos offered Samia (manager of Revilla Interiors)
Section 1. Any person who voluntarily gives information about any a tax clearance in exchange of monetary consideration of P30,000
violation of Articles 210, 211, and 212 of the Revised Penal Code; to settle the tax liablity. The latter pretended to go along with it
Republic Act Numbered Three Thousand Nineteen, as amended; leading to the arrest of Dacumos during an entrapment operation
Section 345 of the Internal Revenue Code and Section 3604 of the by the NBI. The SC affirmed the decision of conviction of the
Tariff and Customs Code and other provisions of the said Codes Sandiganbayan stating that the petitioner failed to support his
penalizing abuse or dishonesty on the part of the public officials claims with substantial evidence.
concerned; and other laws, rules and regulations punishing acts of
graft, corruption and other forms of official abuse; and who willingly DOCTRINE: Elements of direct bribery: (1) that the accused is a
testifies against any public official or employee for such violation public officer; (2) that he received directly or through another some
shall be exempt from prosecution or punishment for the offense gift or present, offer or promise; (3) that such gift, present or
with reference to which his information and testimony were given, promise has been given in consideration of his commission of some
and may plead or prove the giving of such information and crime, or any act not constituting a crime, or to refrain from doing
testimony in bar of such prosecution: Provided; that this immunity something which it is his official duty to do, and (4) that the crime
may be enjoyed even in cases where the information and testimony or act relates to the exercise of his functions as a public officer. The
are given against a person who is not a public official but who is a promise of a public officer to perform an act or to refrain from doing
principal, or accomplice, or accessory in the commission of any of it may be express or implied.
the above-mentioned violations: Provided, further, that this
immunity may be enjoyed by such informant or witness DISCCUSSION: Should the consideration be monetary in nature or
notwithstanding that he offered or gave the bribe or gift to the in the form of service or accommodations? Yes. They are still
public official or his accomplice for such gift or bribe-giving; and considered, then it constitutes a violation under Article 210. The
Provided, finally, that the following conditions concur: person punished under Article 210 is the recipient. The punishable
crime under the giver is under Article 212.
1. The information must refer to consummated violations of any of The act must be connected with his official duties, then it cannot be
the above-mentioned provisions of law, rules and regulations; considered as bribery. For example you falsely occupy such an
office, then there is no act can be considered as bribery but an
2. The information and testimony are necessary for the conviction estafa through false pretenses.
of the accused public officer;
➢ Special Law in Point
3. Such information and testimony are not yet in the possession of Republic Act No. 1379
the State; Forfeiture of Ill-Gotten Wealth of Public Officer
4. Such information and testimony can be corroborated on its

material points; and
5. The informant or witness has not been previously convicted of a

crime involving moral turpitude.
Section 2. The immunity granted hereunder shall not attach should

it turn out subsequently that the information and/or testimony is
false and malicious or made only for the purpose of harassing,
molesting or in any way prejudicing the public officer denounced.
In such a case, the public officer so denounced shall be entitled to
any action, civil or criminal, against said informant or witness.
Section 3. All preliminary investigations conducted by a

prosecuting fiscal, judge or committee, and all proceedings
undertaken in connection therewith, shall be strictly confidential or
private in order to protect the reputation of the official under
investigation in the event that the report proves to be unfounded
or no prima facie case is established.
Section 4. All acts, decrees and rules and regulations inconsistent

with the provisions of this decree are hereby repealed or modified
accordingly.
Section 5. This Decree shall take effect immediately.
SPECIAL LAW DISCUSSION Is it Necessary that the Accused Acted for a Consideration
Republic Act No. 3019, as amended and Had Intended to Obtain Personal Gain or Advantage?
The Anti-Graft and Corrupt Practices Act The Court of Appeals held that in the absence of any
allegation or proof that the accused so acted for a
SECTION 1. Statement of Policy. – It is the policy of the consideration, payment or remuneration and that he intended
Philippine Government, in line with the principle that a public to obtain personal gain, enrichment or advantage, the accused
office is a public trust, to repress certain acts of public officers and may not be convicted of Section 3(a) of RA 3019. The law clearly
private persons alike which constitute graft and corrupt practices
provides such requirement under such circumstances.
or which may lead thereto.
(b) Directly or indirectly requesting or receiving any
Purpose and Policy behind the Anti-Graft Law gift, present, share, percentage, or benefit, for
The Anti-Graft Law was enacted under the police power of the himself or for any other person, in connection with
State to promote morality in the public service. This Act (Rep. any contract or transaction between the
Act No. 3019) was enacted to deter public officials and Government and any other part, wherein the public
employees from committing acts of dishonesty and improve officer in his official capacity has to intervene under
the tone of morality in public service. It was declared to be a the law.
state policy "in line with the principle that a public office is a
public trust, to repress certain acts of public officers and private Section 3(b). The person liable under this provision is the
persons alike which constitute graft or corrupt practices, or public officer who, in his official capacity, has to intervene under
which may lead thereto." the law in any contract or transaction between the Government
and any other party. (Limited in scope to contract and other party
SECTION 2. Definition of terms. – As used in this Act the term – such that conduct of proceedings are not contract – it can be
(a) "Government" includes the national government, the under Article 210). The act constituting the crime is directly or
local governments, the government-owned and indirectly, requesting or receiving any gift, present, share,
government-controlled corporations, and all other percentage, or benefit, for himself or for any other person, in
instrumentalities or agencies of the Republic of the connection with that contract or transaction.
Philippines and their branches.
(b) "Public officer" includes elective and appointive officials
and employees, permanent or temporary, whether in Preliminary Investigation by a Fiscal is Not Transaction
the classified or unclassified or exempt service A preliminary investigation of a criminal complaint conducted
receiving compensation, even nominal, from the by a fiscal is not a "contract or transaction" so as to bring it
government as defined in the preceding subparagraph. within the ambit of Section 3(b) of R.A. No. 3019. A transaction,
(c) "Receiving any gift" includes the act of accepting like a contract, is one which involves some consideration as in
directly or indirectly a gift from a person other than a credit transactions and the element of consideration is absent
member of the public officer's immediate family, in
in a preliminary investigation of a case. (Soriano vs.
behalf of himself or of any member of his family or
relative within the fourth civil degree, either by Sandiganbayan, 131 SCRA 184) Only intervention in contract or
consanguinity or affinity, even on the occasion of a transaction is applicable under Section 3(b).
family celebration or national festivity like Christmas, if
the value of the gift is under the circumstances (c) Directly or indirectly requesting or receiving any
manifestly excessive. gift, present or other pecuniary or material benefit,
(d) "Person" includes natural and juridical persons, unless for himself or for another, from any person for
the context indicates otherwise. whom the public officer, in any manner or capacity,
has secured or obtained, or will secure or obtain,
SECTION 3. Corrupt practices of public officers. – In addition to any Government permit or license, in consideration
acts or omissions of public officers already penalized by existing for the help given or to be given, without prejudice
law, the following shall constitute corrupt practices of any public to Section thirteen of this Act.
officer and are hereby declared to be unlawful:
(a) Persuading, inducing or influencing another public Section 3(c). The person liable under this provision is the public
officer to perform an act constituting a violation of rules officer who, in any manner or capacity, has secured or obtained,
and regulations duly promulgated by competent or will secure or obtain, any Government permit or license for
authority or an offense in connection with the official another person.
duties of the latter, or allowing himself to be persuaded,
induced, or influenced to commit such violation or
The act constituting the crime is directly or indirectly requesting
offense.
or receiving any gift, present or other pecuniary or material
The persons liable under this provision are (1) the public officer benefit, for himself or for another in consideration for the help
who persuades, induces or influences another public officer to given or to be given.
perform an act constituting a violation of rules and regulations
(d) Accepting or having any member of his family
or an offense in connection with the official duties of the latter,
accept employment in a private enterprise which
and (2) the public officer who allows himself to be so has pending official business with him during the
persuaded, induced or influenced. Requesting or receiving any pendency thereof or within one year after its
gift, present, or benefit is not required in this provision. termination.
Section 3(d) Interpretation of Section 3(e)

The person liable under this provision is a public officer who Section 3 enumerates in eleven subsections the corrupt
had or has pending official business with a private enterprise. practices of any public officers declared unlawful. Its reference
to "any public officer" is without distinction or qualification and
The act constituting the crime is accepting or having any it specifies the acts declared unlawful. The Court agrees with
member of his (public officer's) family accept employment in that the view adopted by the Solicitor General that the last sentence
private enterprise (1) during the pendency of the official of paragraph (e) is intended to make clear the inclusion of
business with him or (2) within one year after its termination. officers and employees of officers or government corporations
which, under the ordinary concept of "public officers" may not
It will be noted that the prohibition refers to employment in a come within the term. It is a strained construction of the
private enterprise. Hence, if the public officer or a member of provision to read it as applying exclusively to public officers
his family accepted employment in a Government department charged with the duty of granting licenses or permits or other
or agency, like a public corporation, the prohibition does not concessions (Mejorada v. Sandiganbayan).
apply, even if such department or agency had or has pending
official business with him. It is enough that there be business. (f) Neglecting or refusing, after due demand or request,
without sufficient justification, to act within a
(e) Causing any undue injury to any party, including the reasonable time on any matter pending before him
Government, or giving any private party any for the purpose of obtaining, directly or indirectly,
unwarranted benefits, advantage or preference in from any person interested in the matter some
the discharge of his official administrative or pecuniary or material benefit or advantage, or for
judicial functions through manifest partiality, the purpose of favoring his own interest or giving
evident bad faith or gross inexcusable negligence. undue advantage in favor of or discriminating
This provision shall apply to officers and employees against any other interested party.
of offices or government corporations charged with
the grant of licenses or permits or other (g) Entering, on behalf of the Government, into any
concessions. contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the
Section 3(e) public officer profited or will profit thereby.
To be liable under this provision, the public officer must act thru
Section 3(g) [Grossly Disadvantageous Transactions]
manifest partiality, evident bad faith or gross inexcusable
The person liable under this provision is any public officer who
negligence.
has the duty under the law to enter, on behalf of the
Government, into any contract or transaction with any person.
The act constituting the crime is causing any undue injury to
any party, including the Government, or giving any private party
The act constituting the crime is entering into such contract or
any unwarranted benefits, advantage or preference in the
transaction manifestly and grossly disadvantageous to the
discharge of the official administrative or judicial functions of
Government. It is not necessary that the public officer profited
the offending public officer.
or will profit thereby.
Ong v. People | GR 176546 September 25, 2009
Under Section 3(g) of R.A. No. 3019, it is enough to prove that
We find that all the elements of the offense charged have been duly
established beyond reasonable doubt. Petitioner, being then the Mayor the accused is a public officer; that he entered into a contract
of Angadanan, Isabela is a public officer discharging administrative and or transaction on behalf of the government; and that such
official functions. contract or transaction is grossly and manifestly
disadvantageous to that government. In other words, the act
The act of purchasing the subject truck without the requisite public treated thereunder partakes of the nature of a malum
bidding and authority from the Sangguniang Bayan displays gross and prohibitum, it is the commission of that act as defined by law,
inexcusable negligence. Undue injury was caused to the Government
not the character or effect thereof, that determines whether or
because said truck could have been purchased at a much lower price.
not the provision has been violated. (Luciano vs. Estrella, 34
A local chief executive could only resort to a negotiated purchase under SCRA 769)
Section 366 of RA No. 7160 and COA Resolution Nos. 95-244 and 95-
244-A, if the following two requisites are present: (1) public biddings (h) Directly or indirectly having financing or pecuniary
have failed for at least two consecutive times and; (2) no suppliers have interest in any business, contract or transaction in
qualified to participate or win in the biddings. connection with which he intervenes or takes part
in his official capacity, or in which he is prohibited
The Sandiganbayan correctly ruled that by procuring the subject truck by the Constitution or by any law from having any
through a negotiated purchase without public bidding, petitioner failed interest.
to comply with the above stated procedure. Indeed, as the local chief
executive, petitioner is not only expected to know the proper procedure Section 3(h)
in the procurement of supplies, she is also duty bound to follow the Person liable in this provision is public officer who intervenes or
same and her failure to discharge this duty constitutes gross and takes part in his official capacity in any business, contract or
inexcusable negligence. transaction, or any public officer who is prohibited by the
Constitution or by any law from having any interest.
The act constituting the crime is directly or indirectly having or privilege or advantage, or of a mere representative or
financial or pecuniary interest in that business, contract or dummy of one who is not so qualified or entitled.
transaction.
Requesting or receiving any gift, present or benefit is not
Actual Intervention Required required in this provision.
What is contemplated in Section 3(h) of the anti-graft law is the
actual intervention in the transaction in which one has financial (k) Divulging valuable information of a confidential
or pecuniary interest in order that liability may attach. The character, acquired by his office or by him on
account of his official position to unauthorized
official need not dispose his shares in the corporation as long
persons, or releasing such information in advance
as he does not do anything for the firm in its contract with the of its authorized release date.
office. For the law aims to prevent the dominant use of
influence, authority and power (Trieste, Sr. v. Sandiganbayan). Section 3(k)
The person liable under this provision is any public officer who,
(i) Directly or indirectly becoming interested, for
on account of his official position, or whose office, acquired
personal gain, or having a material interest in any
valuable information of a confidential character.
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 The acts constituting the crime are (1) divulging such valuable
votes against the same or does not participate in the information to unauthorized persons, or (2) releasing such
action of the board, committee, panel or group. information in advance of its authorized release date.
Interest for personal gain shall be presumed against The person giving the gift, present, share, percentage or
those public officers responsible for the approval of benefit referred to in subparagraphs (b) and (c); or offering
manifestly unlawful, inequitable, or irregular or giving to the public officer the employment mentioned in
transaction or acts by the board, panel or group to subparagraph (d); or urging the divulging or untimely
which they belong. release of the confidential information referred to in
subparagraph (k) of this section shall, together with the
Section 3(i) offending public officer, be punished under Section nine of
The person liable under this provision is any public officer who this Act and shall be permanently or temporarily
is a member of a board, panel or group which exercises disqualified in the discretion of the Court, from transacting
discretion in the approval of any transaction or act. business in any form with the Government.
SECTION 4. Prohibition on private individuals –

The act constituting the crime is directly or indirectly becoming (a) It shall be unlawful for any person having family or
interested, for personal gain, or having material interest in any close personal relation with any public official to
transaction or act requiring the approval of such board, panel capitalize or exploit or take advantage of such
or group. family or close personal relation by directly or
indirectly requesting or receiving any present, gift
The public officer is liable under this provision even if he votes or material or pecuniary advantage from any other
person having some business, transaction,
against the same or does not participate in the action of the
application, request or contract with the
board, committee, panel or group. government, in which such public official has to
intervene. Family relation shall include the spouse
The public officers responsible for the approval of manifestly or relatives by consanguinity or affinity in the third
unlawful, inequitable or irregular transactions or acts by the civil degree. The word "close personal relation"
board, panel or group to which they belong are presumed to shall include close personal friendship, social and
have acquired interest for personal gain. fraternal connections, and professional
employment all giving rise to intimacy which
(j) Knowingly approving or granting any license, assures free access to such public officer.
permit, privilege or benefit in favor of any person
not qualified for or not legally entitled to such Taking Advantage of Family or Close Personal Relation with
license, permit, privilege or advantage, or of a mere Public Official Is Punished
representative or dummy of one who is not so The offender under this provision is any person who has family
qualified or entitled. or close personal relation with any public official who has to
intervene in some business, transaction, application, request or
Section 3(j) contract of the government with any other person.
The person liable under this provision is the public officer who
has the duty of approving or granting any license, permit, The act constituting the crime is capitalizing or exploiting or
privilege or benefit. taking advantage of such family or close personal relation by
directly or indirectly requesting or receiving any present, gift, or
The act constituting the crime is knowingly approving or material or pecuniary advantage from the person having the
granting the license, permit or benefit in favor of any person business, transaction, application, request or contract with the
not qualified for or not legally entitled to such license, permit government.
SECTION 7. Statement of assets and liabilities. — Every public

(b) It shall be unlawful for any person knowingly to officer, within thirty days after approval of this Act or after
induce or cause any public official to commit any of assuming office, and within the month of January of every
the offenses defined in Section 3 hereof. other year thereafter, as well as upon the expiration of his
term of office, or upon his resignation separation from office,
SECTION 5. Prohibition on certain relatives. - It shall be shall prepare and file with the office of the corresponding
unlawful for the spouse or for any relative, by consanguinity Department Head, or in the case of a Head of Department or
or affinity, within the third civil degree, of the President of chief of an independent office, with the Office of the
the Philippines, the Vice-President of the Philippines, the President, or in the case of members of the Congress and the
President of the Senate, or the Speaker of the House of officials and employees thereof, with the Office of the
Representatives, to intervene, directly or indirectly, in any Secretary of the corresponding House, a true detailed and
business, transaction, contract or application with the sworn statement of assets and liabilities, including a
Government: Provided, That this section shall not apply to statement of the amounts and sources of his income, the
any person who, prior to the assumption of office of any of amounts of his personal and family expenses, and the
the above officials to whom he is related, has been already amount of income taxes paid for the next preceding calendar
dealing with the Government along the same line of business, year: Provided, That public officer assuming office less than
nor to any transaction, contract or application already two months before the end of the calendar year, may file
existing or pending at the time of such assumption of public their first statements in the following months of January:
office, nor to any application filed by him the approval of Provided, further, That the requirements of this section shall
which is not discretionary on the part of the official or not apply to classroom teachers, laborers, casual and
officials concerned but depends upon compliance with temporary employees, and barrio officials." (RA 3047)
requisites provided by law, or rules or regulations issued
pursuant to law, nor to any act lawfully performed in an The accuracy of entries in statements of assets and liabilities
official capacity or in the exercise of a profession. becomes material in criminal or administrative proceedings.
Section 5 Prohibits Certain Relatives to the President, Vice- SECTION 8. Prima facie evidence of and dismissal due to
President, Senate President and Speaker to Intervene in unexplained wealth. — If in accordance with the provisions
Any Business, etc. with the Government; Exceptions of Republic Act Numbered One thousand three hundred and
1. Any person who, prior to the assumption of office of seventy-nine, a public official has been found to have
any of those officials to whom he is related, has been acquired during his incumbency, whether in his name or in
the name of other persons, an amount of property and/ or
already dealing with the Government along the same
money manifestly out of proportion to his salary and to his
line of business, nor to any transaction, contract or other lawful income, that fact shall be a ground for dismissal
application already existing or pending at the time of or removal. Properties in the name of the spouse and other
such assumption of public office; dependents of such public official may be taken into
consideration, when their acquisition through legitimate
2. Any application filed by him, the approval of which is means cannot be satisfactorily shown. Bank deposits in the
not discretionary on the part of the official or officials name of or manifestly excessive expenditures incurred by
the public official, his spouse or any of their dependents
concerned but depends upon compliance with the
including but not limited to activity in any club or association
requisites provided by law, or rules or regulations or any ostentations display of wealth including frequent
issued pursuant to law; travel abroad of a non-official character by any public official
when such activities entail expenses evidently out of
3. Any at lawfully performed in an official capacity or in proportion to legitimate income shall likewise be taken into
the exercise of a profession. consideration in the enforcement of this section,
notwithstanding any provision of law to the contrary. The
SECTION 6. Prohibition on Members of Congress. It shall be circumstances hereinabove mentioned shall constitute valid
unlawful hereafter for any Member of the Congress during ground for the administrative suspension of the public
the term for which he has been elected, to acquire or receive official concerned for an indefinite period until the
any personal pecuniary interest in any specific business investigation of the unexplained wealth is completed.
enterprise which will be directly and particularly favored or
benefited by any law or resolution authored by him SECTION 9. Penalties for violations. – (a) Any public officer or
previously approved or adopted by the Congress during the private person committing any of the unlawful acts or
same term. omission enumerated in Sections 3, 4, 5 and 6 of this Act shall
be punished with imprisonment for not less than six years
The provision of this section shall apply to any other public and one month not more than fifteen years, perpetual
officer who recommended the initiation in Congress of the disqualification from public office, and confiscation or
enactment or adoption of any law or resolution, and acquires forfeiture in favor of the Government of any prohibited
or receives any such interest during his incumbency. interest and unexplained wealth manifestly out of
proportion to his salary and other lawful income.
It shall likewise be unlawful for such member of Congress or
other public officer, who, having such interest prior to the Any complaining party at whose complaint, the criminal
approval of such law or resolution authored or prosecution was initiated shall, in case of conviction of the
recommended by him, continues for thirty days after such accused, be entitled to recover in the criminal action with
approval to retain such interest. priority over the forfeiture in favor of the Government, the
amount of money or the thing he may have given to the
accused, or the fair value of such thing.
(b) Any public official violating any of the provisions of Public Officer to be Suspended
Section 7 of this Act shall be punished by a fine of not less The public officer against whom any criminal prosecution under
than one thousand pesos nor more than five thousand pesos, a valid information under this Act or under the Revised Penal
or by imprisonment not exceeding one year and six months,
Code on crimes committed by public officers or for any offense
or by both such fine and imprisonment, at the discretion of
the Court. involving fraud upon government or public funds or property
is pending in court shall be suspended from office.
The violation of said section proven in a proper
administrative proceeding shall be sufficient cause for Sandiganbayan Should Exercise Mandatory Section 13
removal or dismissal of a public officer, even if no criminal There is in Section 13 (Rep. Act 3019) a recognition that once a
prosecution is instituted against him. case is filed in court, all other acts connected with the discharge
of court functions — which here include suspension — should
Are all the Penalties Prescribed in Section 9 of RA 3019
be left to the Court of First Instance.
Imposable on a Private Person?
Sec. 9 mentions the penalties with which "any public officer or
It is without doubt that Congress has power to authorize courts
private person" may be punished for committing any of the
to suspend public officers pending court proceedings for
unlawful acts or omissions enumerated in Sections 3, 4, 5 and 6
removal and that the congressional grant is not violative of the
of Rep. Act No. 3019. However, "perpetual disqualification from
separation of powers. For, our Constitution being silent, we are
public office, and confiscation or forfeiture in favor of the
not to say that from Congress is withheld the power to decide
Government of any prohibited interest and unexplained
the mode or procedure of suspension and removal of public
wealth" can hardly be imposed on a private person.
officers. (Luciano vs. Provincial Governor, 28 SCRA 517)
It is believed that as regards a private person, only the penalty

The suspension spoken of (in Section 13 of Rep. Act 3019)
of imprisonment "for not less than six years and one month or
follows the pendency in court of a criminal prosecution under
fifteen years" may be imposed.
a "valid information." Adherence to this rigoristic requirement
funnels us down to no other conclusion than that there must,
NOTE: It is believed that the intent of the law-making authority
first of all, be a determination that the information filed is valid
was for the punishment to be "imprisonment for not less than
before suspension can be effected.
six years and one month nor more than fifteen years."
This circumstance militates strongly against the notion that
SECTION 10. Competent court. — Until otherwise provided by
law, all prosecution under this Act shall be within the suspension under Section 13 is automatic. Suspension is,
original jurisdiction of the Sandiganbayan. (As amended by however, mandatory. The word "shall" used in Section 13 is an
BP. Big. 195) express index of this conclusion. (Noromor vs. Mun. of Oras,
Samar, 7 SCRA 405) In other words, the suspension envisioned
SECTION 11. Prescription of offenses. — All offenses in Section 13 of Republic Act 3019 is mandatory but is not self-
punishable under this Act shall prescribe in fifteen years. (As operative. That is to say, that there must be someone who shall
amended by BP. Big. 195) exercise the act of suspension. (Luciano vs. Provincial Governor,
supra)
SECTION. 12. Termination of office. — No public officer shall
be allowed to resign or retire pending an investigation,
criminal or administrative, or pending a prosecution against Suspension Cannot be Automatic
him, or for any offense under this Act or under the provisions The Court has previously ruled that, under Sec. 14, Rep. Act
of the Revised Penal Code on bribery. 3019, suspension of a public officer is mandatory. However,
suspension cannot be automatic, the reason being that
SECTION. 13. Suspension and loss of benefits. — Any "hearing on the validity of the information appears
incumbent public officer against whom any criminal
conformable to the spirit of the law, taking into account the
prosecution under a valid information under this Act or
under Title 7, Book II of the Revised Penal Code or for any serious and far reaching consequences of a suspension of an
offense involving fraud upon government or public funds or elective public official even before his conviction and that
property whether as a simple or as a complex offense and in public interest demands a speedy determination of the issues
whatever stage of execution and mode of participation, is involved in the cases."
pending in court, shall be suspended from office. Should he
be convicted by final judgment, he shall lose all retirement Thus, before a suspension order can be issued, a hearing on the
or gratuity benefits under any law, but if he is acquitted, he issue of the validity of the information must first be had. This
shall be entitled to reinstatement and to the salaries and
pre-suspension hearing is conducted to determine basically the
benefits which he failed to receive during suspension, unless
in the meantime administrative proceedings have been filed validity of the information, from which the court can have a
against him. basis to either suspend the accused, and proceed with the trial
on the merits of the case, or withhold the suspension of the
In the event that such convicted officer, who may have latter and dismiss the case, or correct any part of the
already been separated from the service, has already proceeding which impairs its validity. (People vs. Albano, 163
received such benefits he shall be liable to restitute the same SCRA 511)
to the Government. (As amended by B.P. Big. 195).
Maximum Duration of Preventive Suspension is 90 Days MEJORADA v. SANDIGANBAYAN

The preventive suspension of an elective public official under SUMMARY: This is a surplusage in a law, a strained construction if
Sec. 13 of R.A. No. 3019 should be limited to ninety days under you are to interpret Section 3(e) to limit to those of officers who
grant licenses and permits. The intention is inclusive not exclusive.
Sec. 42 of P.D. No. 807, the Civil Service Decree. (Deloso vs.
Supreme Court said, by applying statutory construction, that is not
Sandiganbayan, 173 SCRA 409)
the intention of the Congress by looking at the introductory
provisions of Section 3, regardless of function.
The injunction against preventive suspension for an
unreasonable period of time applies to elective officials facing SISON v. PEOPLE
criminal charges under the Anti-Graft Law. (Deloso vs. SUMMARY: There was no public bidding made to certain objects of
Sandiganbayan, supra) the properties in the case.
“Acquitted” Under Section 13 Elements of Section 3(e) of RA 3019

It is obvious that when the statute speaks of the suspended 1. The offender is a public officer;
official being "acquitted," it means that after due hearing and 2. The act was done in the discharge of the public officer’s
official, administrative or judicial functions;
consideration of the evidence against him, the court is of the
3. The act was done through manifest partiality, evident bad
opinion that his guilt has not been proven beyond reasonable faith, or gross inexcusable negligence; and
doubt. Dismissal of the case against the suspended officer will 4. The public officer caused any undue injury to any party,
not suffice because dismissal does not amount to acquittal. including the Government, or gave any unwarranted
(Malanyaon vs. Lising, 106 SCRA 237) benefits, advantage or preference.
SECTION 14. Exception. - Unsolicited gifts or presents of small The third element is in the alternative. This may be committed in
or insignificant value offered or given as a mere ordinary three ways through (1) manifest partiality; (2) evident bad faith, or
token of gratitude of friendship according to local customs or (3) gross inexcusable negligence. Proof of any of these three in
usage, shall be excepted from the provisions of this Act. connection with the prohibited acts mentioned in Section 3(e) of RA
3019 is enough to convict.
Nothing in this Act shall be interpreted to prejudice or
prohibit the practice of any profession, lawful trade or “Partiality” is synonymous with “bias” which “excites a disposition
occupation by any private persons or by any public officer to see and report matters as they are wished for rather than as they
who under the law may legitimately practice his profession, are.” “Bad faith does not simply connote bad judgment or
trade or occupation, during his incumbency, except where negligence; it imputes a dishonest purpose or some moral obliquity
the practice of such profession, trade or occupation involves and conscious doing of a wrong; a breach of sworn duty through
conspiracy with any other person or public official to commit some motive or intent or ill will; it partakes of the nature of fraud.”
any of the violations penalized in this Act. “Gross negligence has been so defined as negligence characterized
by the want of even slight care, acting or omitting to act in a
SECTION. 15. Separability clause. — If any of this Act or the situation where there is a duty to act, not inadvertently but wilfully
application of such provision to any person or circumstances and intentionally with a conscious indifference to consequences in
is declared invalid, the remainder of the Act or the so far as other persons may be affected. It is the omission of that
application of such provision to other persons or care which even inattentive and thoughtless men never fail to take
circumstances shall not be affected by such declaration. on their own property.
SECTION. 16. Effectivity. — This Act shall take effect on its Petitioner was grossly negligent, as Mayor he was fully aware of
approval, but for the purpose of determining unexplained the procedure under public bidding. This was an admission of a
wealth all property acquired by a public officer since he mindless disregard for the law in a tradition of illegality. This is
assumed office shall be taken into consideration. totally unacceptable, considering that as municipal mayor,
petitioner ought to implement the law to the letter. As local chief
CASES IN POINT executive, he should have been the first to follow the law and see to
The following cases help illustrate the applicability of RA 3019: it that it was followed by his constituency. Sadly, however, he was
the first to break it. One of the manifestation was the pre-signed
Section 3(e) forms in favor of De Jesus. It shows gross disregard of the
consequences of his actions.
1. Mejorada v. Sandiganbayan 151 SCRA 399
2. Santiago v. Garchitorena 228 SCRA 214
Fourth Element. Divided into two (1) undue by causing undue injury
3. Sison v. People 614 SCRA 670 to any party, including the government, or (2) , by giving any private
4. Jose Reyes v. People 626 SCRA 782 party any unwarranted benefit, advantage or preference.
5. Apelado v. People 653 SCRA 576
6. Carpio-Morales v. Court of Appeals 774 SCRA 431 Under the fourth element, the Supreme Court need only prove
either of two whether undue injury or unwarranted benefit or
Section 3(h) preference to a private party. The act of failure of the accused to
conduct in bidding and personally selecting the suppliers, he gave
1. Trieste, Sr. v. Sandiganbayan 145 SCRA 508
the suppliers unwarranted benefit and was based on personal choice
and there was no consideration of what there would should be
reasonable consideration.
SANTIAGO v. GARCHITORENA Section 3(h) – Intervention with Pecuniary Interest

SUMMARY: Alleged to have violated Section 3(e) by giving TRIESTE, SR. v. SANDIGANBAYAN
advantage to aliens, she argued that the government was not SUMMARY: What is contemplated is the actual intervention in the
injured. The court stated that the fourth element can be committed transaction with financial or pecuniary interest. Even though he was
in two ways. It is sufficient that the accused gave unwarranted, the President and Manager of Trigen Development Corporation
benefit, advantage of preference. which provided construction materials. It was not considered
incriminating, when he assumed office, the stocks were transferred
MEJORADA v. SANDIGANBAYAN to his sister so as to divest interest.
SUMMARY: He was a right of way agent, he required the claimants’
blank copies of sworn statements to fair market value of the The testimony by the secretary that the payment was already done
properties and this was related to his duties as assigned to work out by the treasurer before the municipality voucher was signed by the
their claims, negotiate with property owners affected with Mayor and was only for the purpose records. There was evidence
improvements and damages to the disturbance caused by the public before signature there has already been previous payments made
project. The first and second elements are present. Mejorada took to Trigen. There can be no intervention, because the contract has
advantage of his position as a right-of-way agent by making the already been perfected even before the mayor affixed his signature.
claimants sign the agreements to demolish and sworn statements The SC adopted the recommendation of the Solicitor General.
which contained falsified declarations of the value of the
improvements and lots. EXAM FOCUS: Section 3, 7 and 9 (Penalties for 3 and 7).
In the sworn statements, he made it appear the value is higher than

actual value claimed by them, the declarations of property are not
intended for the claimants and that they were all falsified.
Evident bad faith. There was evident bad faith on the part of the
petitioner when he inflated the values of the true claims and when
he divested the claimants of a large share of the amounts due them.
Fourth Element. There was undue injury to the government

suffered undue injury as a result of the petitioner having inflated the
true claims of complainants which became the basis of the report
submitted by the Highway District Engineer to the Regional Director
of Department of Highways and which eventually became the basis
of payment by the government. It was brought about the inflated
claims; the government was made to pay what they not have. All
elements of Section 3(e) of RA 3019 were present.
What is meant by private party under Section 3(e)?

APELADO v. SANDIGANBAYAN
SUMMARY: Ambil, Jr and Apelado allowed the transfer of Mayor
Adalim because there were imminent threats to the person of the
mayor, claiming that there was threat. His inmates are of political
opponents, and those who were imprisoned by virtue of his sister
for she was the District Attorney. The condition of the security of the
detention was considered to transfer, the physical condition was
that there were only two cells, nipa huts for conjugal visits.
Mayor Adalim was a public officer, but the charge was giving
unwarranted benefits to a private party. Is Adalim a private party?
The lawmakers opted to use “private party” rather than “private
person” to describe the recipient of the unwarranted benefits,
advantage or preference for a reason. The term “party” is a technical
word having a precise meaning in legal parlance as distinguished
from “person” a human being. Thus, a private person simply pertains
to one who is not a public officer. While a private party is more
comprehensive in scope to mean either a private person or a public
officer acting in a private capacity to protect his personal interest.
So, when petitioners transferred Mayor Adalim from the provincial

jail and detained him at petitioner Ambil, Jr.’s residence, they
accorded such privilege to Adalim, not in his official capacity as a
mayor, but as a detainee charged with murder. Thus, for purposes
of applying the provisions of Section 3(e), R.A. No. 3019, Adalim was
a private party. It was merely incidental as public officer.
CHAPTER THREE (c) That he entered into an agreement with any interested
FRAUDS AND ILLEGAL EXACTIONS AND TRANSACTIOS party or speculator or made use of any other scheme
with regard to
ARTICLE 213. Frauds against the public treasury and 1. Furnishing supplies
similar offenses. – The penalty of prision correccional in its 2. The making of contracts, or
medium period to prision mayor in its minimum period, or a 3. The adjustment or settlement of accounts relating
fine ranging from Forty Thousand Pesos (P40,000) to Two to public property or funds.
Hundred Thousand Pesos (P200,000), or both, shall be
imposed upon any public officer who: (d) That accused had intent to defraud the Government.
1. In his official capacity, in dealing with any person
with regard to furnishing supplies, the making of
contract, or the adjustment or settlement of The Public Officer Must Act in his Official Capacity
accounts relating to public property or funds, shall The offender must have the duty as public officer to deal with
enter into an agreement with any interested party any person with regard to furnishing supplies, the making of
or speculator or make use of any other scheme, to contracts, or the adjustment or settlement of accounts relating
defraud the government; to public property or funds.
2. Being entrusted with the collection of taxes,
licenses, fees, and other imposts, shall be guilty of
NOTE: The crime of frauds against public treasury is
any of the following acts or omissions:
consummated by merely entering into an agreement with
(a) Demanding, directly or indirectly, the payment
of sums different from or larger than those any interested party or speculator or by merely making use of
authorized by law; any other scheme to defraud the government.
(b) Failing voluntarily to issue a receipt, as
provided by law, for any sum of money Elements of Illegal Exactions
collected by him officially; (a) The offender is a public officer entrusted with the
(c) Collecting or receiving, directly or indirectly, collection of taxes, licenses, fees and other imposts.
by way of payment or otherwise, things or
(b) He is guilty of any of the following acts or omissions:
objects of a nature different from that provided
by law. (1) Demanding directly or indirectly, the payment of
sums different from or larger than those
When the culprit is an officer or employee of the Bureau of authorized by law.
Internal Revenue or Bureau of Customs, the provisions of the (2) Failing voluntarily to issue a receipt, as provided
Administrative Code shall be applied. by law, for any sum of money collected by him
officially; or
ACTS PUNISHABLE (3) Collecting or receiving, directly or indirectly by
1. By entering into an agreement with any interested way of payment or otherwise, things or objects of
party or speculator or making use of any other a nature different from the provided by law.
scheme, to defraud the Government, in dealing with
any person with regard to furnishing supplies, the NOTE: Mere demand for larger or different amount is sufficient
making of contracts, or the adjustment or settlement to consummate the crime. Mere demand is enough you need
of accounts relating to public property or funds. not actually receive the amounts demanded. The mere making
of demand is sufficient.
2. By demanding, directly or indirectly, the payment of
sums different from or larger than those authorized by NOTE: When there is deceit in demanding greater fees than
law, in the collection of taxes, licenses, fees, and other those prescribed by law, the crime committed is estafa.
imposts.
ARTICLE 214. Other frauds. – In addition to the penalties
3. By failing voluntarily to issue a receipt, as provided by prescribed in the provisions of Chapter Six, Title Ten, Book
law, for any sum of money collected by him officially, Two of this Code, the penalty of temporary special
in the collection of taxes, licenses, fees, and other disqualification in its maximum period to perpetual special
disqualification shall be imposed upon any public officer who,
imposts.
taking advantage of his official position, shall commit any of
the frauds or deceits enumerated in said provisions.
4. By collecting or receiving, directly or indirectly, by way
of payment or otherwise, things or objects of a nature
different from that provided by law, in the collection ELEMENTS
of taxes, licenses, fees, and other imposts. 1. That the offender is a public officer.
2. That he takes advantage of his official position.
Elements of Frauds Against Public Treasury 3. That he commits any of the frauds or deceits
(a) The offender be a public officer. enumerate in Article 315 to 318.
(b) That he should have taken advantage of his office, that
is, he intervened in the transaction in his official NOTE: The offender must take advantage of official position n
capacity. the commission of the fraud.
ARTICLE 215. Prohibited transactions – The penalty of CHAPTER FOUR

prision correccional in its minimum period or a fine ranging MALVERSATION OF PUBLIC FUNDS OR PROPERTY
from or a fine ranging from Forty Thousand Pesos (P40,000)
to Two Hundred Thousand Pesos (P200,000), or both, shall ARTICLE 217. Malversation of public funds or property. –
be imposed upon any appointive public officer who, during Presumption of malversation. – Any public officer who, by
his incumbency, shall directly or indirectly become interested reason of the duties of his office, is accountable for public
in any transaction of exchange or speculation within the funds or property, shall appropriate the same, or shall take or
territory subject to his jurisdiction. misappropriate or shall consent, or through abandonment or
negligence, shall permit any other person to take such public
ELEMENTS funds or property, wholly or partially, or shall otherwise be
1. That the offender is an appointive public officer; guilty of the misappropriation or malversation of such funds
or property, shall suffer:
2. That he becomes interested, directly, or indirectly, in
1. The penalty of prision correccional in its medium
any transaction of exchange or speculation. and maximum periods, if the amount involved in the
3. That the transaction takes place within the territory misappropriation does not exceed Forty thousand
subject to his jurisdiction. pesos (P40,000).
4. That he becomes interested in the transaction during 2. The penalty of prision mayor in its minimum and
his incumbency. medium periods, if the amount involved is more
than Forty thousand pesos (P40,000) but does not
exceed One million two hundred thousand pesos
The Transaction Must be One of Exchange or Speculation
(P1,200,000).
It is sufficient under this article that the appointive officer has 3. The penalty of prision mayor in its maximum period
an interest in any transaction of exchange or speculation, such to reclusion temporal in its minimum period, if the
as, buying and selling stocks, commodities, land, etc., hoping to amount involved is more than One million two
take advantage of an expected rise or fall in price. hundred thousand pesos (P1,200,000) but does not
exceed Two million four hundred thousand pesos
(P2,400,000).
ARTICLE 216. Possession of prohibited interest by a public 4. The penalty of reclusion temporal in its medium and
officer. – The penalty of arresto mayor in its minimum period maximum periods, if the amount involved is more
or a fine ranging from or a fine ranging from Forty Thousand than Two million four hundred thousand pesos
Pesos (P40,000) to Two Hundred Thousand Pesos (P2,400,000) but does not exceed (P4,400,000).
(P200,000), or both, shall be imposed upon a public officer 5. The penalty of reclusion temporal in its maximum
who, directly or indirectly, shall become interested in any period, if the amount involved is more than Four
contract or business in which it is his official duty to million four hundred thousand pesos (P4,400,000)
intervene. but does not exceed Eight million eight hundred
thousand pesos (P8,800,000). If the amount
This provision is applicable to experts, arbitrators and exceeds the latter, the penalty shall be reclusion
private accountants who, in like manner, shall take part in perpetua.
any contract or transaction connected with the estate or
property in appraisal, distribution, or adjudication of which In all cases, persons guilty of malversation shall also suffer
they shall have acted, and to the guardians and executors the penalty of perpetual special disqualification and a fine
with respect to the property belonging to their wards or equal to the amount of the amounts malversed or equal to the
estate. total value of property embezzled.
PERSONS LIABLE FOR ARTICLE 216 The failure of a public officer to have duly forthcoming any
1. Public officer who directly or indirectly, became public funds or property with which he is chargeable, upon
demand by any duly authorized officer, shall be prima facie
interested in any contract or business in which it was
evidence that he has put such missing funds or property to
his official duty to intervene. personal uses.
2. Experts, arbitrators, and private accountants who in like
manner took part in any contract or transaction
connected with the estate or property in the appraisal, What is Embezzlement?
distribution, or adjudication of which they have acted. Malversation is otherwise called embezzlement. Note the word
3. Guardians and executors with respect to the property "embezzled" in the phrase "or equal to the total value of the
belonging to their wards or the estate. property embezzled.”
Actual Fraud is Not Necessary ACTS PUNISHABLE

Actual fraud is not necessary; the act is punished because of the 1. By appropriating public funds or property.
possibility that fraud may be committed or that the officer may 2. By taking or misappropriating the same.
place his own interest above that of the government or party 3. By consenting, or through abandonment or
which he represents. The intervention must be by virtue of the negligence, permitting any other person to take such
public office held. public funds or property.
4. By being otherwise guilty of the misappropriation or
malversation of such funds of property.
ELEMENTS COMMON TO ALL ACTS from certain taxpayer, and then and there an NBI agent, who
(a) That the offender be a public officer. had been informed of the plan of A to take public funds,
(b) That he had the custody or control of funds or arrested and searched him and found the money in his pocket,
property by reason of the duties of his office. is A guilty of frustrated or consummated malversation?
(c) That those funds or property were public funds or
property for which he was accountable. It is believed that A is guilty of consummated malversation.
(d) That the appropriated, took, misappropriated, or The public funds/property taken need not be misappropriated,
consented or through abandonment or negligence, as the word "take" is separated by the word "or" from the word
permitted another person to take them. "misappropriation." Misappropriating public funds or property
was committed by the treasurer of a municipality who spent
Offender Under Article 217 Must be a Public Officer for his personal benefit certain amount of money which
The nature of the duties of the officer not name of office is formed part of the funds under his charge.
controlling thus, the phrase “who, by reason of the duties of his
office is accountable.” Funds or property must be received in 3. Consenting or Permitting, through Abandonment or
official capacity. Negligence, any Other Person to Take Public Funds or
Property
NOTE: When a public officer had no authority to receive the When a public officer, accountable for public funds or property,
money for the Government and upon receipt of the same he violates regulations of his office, that violation is evidence of
misappropriated it, crime committed estafa not malversation. negligence. Thus, a municipal treasurer who cashed with public
funds private checks drawn in favor of his wife, the drawer not
Private Individuals Can be Held Liable if in Conspiracy with having enough cash in the drawee bank, was held liable for
Public Officers guilty of Malversations malversation through negligence, the cashing of private checks
Thus, a janitor and five policemen who aided the municipal with public funds being a violation of standing regulations.
treasurer in the commission of malversation by taking the safe
containing money from the municipal treasury and carrying it Malversation through Abandonment or Negligence
to another place and then and there taking the contents The accused was negligent in the performance of his duties as an
thereof, were held guilty of malversation, although they were accountable officer. This negligence consisted in his failure to take the
not accountable public officers (People v. Ponte). necessary precaution or zeal, in returning the warrants, cash, and checks
in the combination safe in order to safeguard them. If he were not
negligent, at the time that the light of the petromax went out, he could
NOTE: Government funds include revenue and trust funds, have asked the policeman on duty to furnish him the necessary light so
proceeds of sweepstakes tickets, redemption price, red cross. that the money which he claimed to have been counting and listing,
could have been properly returned to the safe where they rightfully
Private Property May be Involved in Malversation belonged and should be kept. Even on this score alone, the accused is
The provisions of Art. 217 apply to administrator or depository already liable for the offense charged (People v. Pili).
of funds or property attached, seized, or deposited by public
authority, "even if such property belongs to a private Test to Determine Negligence
individual." (Art. 222) Negligence is the omission to do something which a reasonable
man, guided by those considerations which ordinarily regulate
Such phrase denotes the express intention of the Penal Code to the conduct of human affairs, would do, or the doing of
make accountable public officers guilty of malversation not something which a prudent and reasonable man would do.
only of national, provincial or municipal funds, revenues or
property, but also of other funds or property, even if they The test by which to determine the existence of negligence in a
belong to private individuals, as long as such funds or property particular case may be stated as follows: Did the defendant in
are placed in their custody. doing the alleged negligent act use that reasonable care and
caution which an ordinary prudent person would have used in
Different Acts of Malversation Under Article 217 the same situation? If not, he is guilty of negligence.
1. Appropriating public funds or property NOTE: In malversation not committed through negligence, lack
To appropriate public funds or property includes every attempt of criminal intent or good faith is a defense. Thus, when an
to dispose of the same without right. It must be considered that accountable public officer makes a wrong payment through
he made personal use of the fund of the Government. honest mistake as to the law or the facts concerning his duties,
he is not liable for malversation. He is only civilly liable.
2. Taking or Misappropriating Funds or Property
What is the meaning of "taking" as an act of malversation? Is it Thus, a municipal officer who in good faith paid out of public
the same as the meaning of the word "taking" in theft or funds, persons who in accordance with the resolution of the
robbery with violence against or intimidation of persons? municipal council, but the payments were made in violation of
the law, because of insufficient vouchers or improper evidence,
Suppose A, a teller in the office of the city treasurer, was leaving is only civilly liable, there being no criminal intent.
the office of the treasurer with public funds which he collected
PRESUMPTION: The failure of a public officer to have duly LABATAGOS v. SANDIGANBAYAN

forthcoming any public funds or property with which he is FACTS: From 1978 to 1980, Carmen Labatagos was the cashier and
chargeable, upon demand by any duly authorized officer, shall collection officer of MSU. She filed a LOA and did not discharge
duties for April and May 1978. In 1980, the COA had a team to
be prima facie evidence that he has put such missing funds or
conduct examination of the accounts of Labatagos, upon
property to personal uses (Article 217, paragraph 4).
examination Labatagos did not have any cash in her possession, so
she was asked to produce all her records, and copies of receipts.
Thus, the failure or inability of the accused who was in custody
of public funds to refund the shortage upon demand by the It was discovered that, for 1978, she collected the amount of P113K
duly authorized offices constitutes prima facie evidence of and made a total remittance to DBP in the amount of P78K with
malversation, notwithstanding the fact that such demand had unremitted amount of P34K. And for 1980, she made a total
been merely made verbally. The disappearance of public funds collection of P327K and remitted P256K with a shortage of P71K.
She signed the examinations. Despite demand letters she did not
in the hands of an accountable public officer is prime facie
submit any explanation for her shortage.
evidence of their conversion.
In trial, she claimed that she signed report understanding that her
An accountable public officer may be convicted of shortage was only in the amount of P2K, that she cannot be held
malversation even if there’s no evidence of misappropriation liable for she was on maternity leave. She claimed further that she
and the only evidence is that there is a shortage in his accounts should not be held accountable for the alleged misappropriations
which he has not been able to explain satisfactorily. between the months because those who appropriated such were her
superiors and the receipts were lost. SB found her guilty of Article
217 for her testimony was not given credence.
Presumption May be Rebutted
If the accused has adduced evidence showing that he did not
The court found her to be guilty beyond reasonable doubt for the
put the missing funds or property to personal uses, then that crime of malversation of public funds. The audit report was signed
presumption is at an end and the prime facie case is destroyed. by herself and that there was no competent evidence to prove the
disbursements and the defenses were unsupported by a duly
The Return of the Funds Malversed is Only Mitigating Not accomplished and approved voucher.
an Exempting Circumstance
When his books were examined by the auditor, the assistant ILOGON v. SANDIGANBAYAN
cashier in the provincial treasury could not produce the FACTS: Ilogon was acting Postmaster of Bureau of Posts in CDO. He
amount. Later, the assistant cashier offered to and did actually likewise performed the task of accepting payments, making
return the money. Held: The return of the money was merely a collection and effecting disbursements as there was no cashier
during his period of incumbency. COA conducted examination of
mitigating circumstance. It cannot exempt him from criminal
the cash and accounts of Ilogon and found out that there was
liability (People v. Velasquez). shortage in his accounts amounting to P118,871. Thus, he was
charged under Article 217. As a defense he stated that he never
When the Shortage is Paid by the Public Officer from his misappropriated the amount of P118,003 for his own personal use
Pocket he is Not Liable for Malversation as the bulk of it was given as cash to his co-employees.
But if at the very moment when the shortage is discovered, the
accountable officer is notified thereof and he at once presents The argument failed to persuade the Court. In the crime of
the money, no prima facie evidence of the crime of malversation, all that is necessary for conviction is the proof that the
accountable officer had received public funds and that he did not
malversation can be established.
have them in his possession when demand therefor was made.
There is even no need of direct evidence of personal
Demand is Not Necessary misappropriation as long as there is a shortage in his account and
Demand merely raises a prima facie presumption that missing petitioner cannot satisfactorily explain the same.
funds have been put to personal use. The demand itself,
however, is not an element of, and not indispensable to In this case, Ilogon was the official custodian of the missing funds.
constitute malversation. He himself admitted to the shortage in his cash but he could not
give any satisfactory explanation for the same. He would invoke
what he calls humanitarian reasons for justification but his granting
NOTE: Person whose negligence made possible by the
of chits and vales which constituted the bulk of shortage was a
commission of malversation by another may be held liable as violation of postal rules and regulations.
principal by indispensable cooperation in the complex crime of
malversation through falsification of a public document by The fact that petitioner did not personally use the missing funds is
reckless negligence. not a valid defense and will not exculpate him from his criminal
liability. The fact also that petitioner fully settled the amount of
Damage to the Government, Not Necessary P118,003.10 later is of no moment. The return of funds malversed is
Art. 217 states only, "the amount involved in the not a defense. It is neither an exempting circumstance nor a ground
for extinguishing the accused's criminal liability. At best, it is a
misappropriation or malversation."
mitigating circumstance.
The penalty for malversation in that article is based on the HELD: In the light of the above finding and under the law, his
amount involved, not on the amount of the damage caused to conviction is hereby affirmed ad petition is dismissed.
the Government.
PANGANIBAN v. PEOPLE (2015) Petitioner was not shown to have been such public officer, even
FACTS: Mayor Panganiban previously served as mayor for Sta. Cruz, temporarily, in addition to his main duties as mayor. Needless to say,
Laguna from 2004 to 2007, he was once again elected for the May he was not accountable for any public funds or property simply
2013 elections. Sometime in May 2006 he obtained a cash advance because it never became his duty to collect money or property from
in the sum of P500K from the municipality for the purpose of the public. Therefore, petitioner could not have appropriated, taken,
defraying expenses of a planned official travel to Australia. The misappropriated or consented, or, through abandonment or
avail of the cash advance is evidenced by a disbursement vouchers, negligence, permitted another person to take them.
an obligation slips and a copy of the check and a promissory note.
The travel did not push through for undisclosed reasons. Full Liquidation as Legal Avoidance and Good Faith
Even before he was required by the COA to account for the
His attention was called to the unliquidated cash. The COA and LGU unliquidated cash advance, petitioner had already instructed
Audit Team conducted examination the financial records and Lorenzo to withhold his Php18,000.00 monthly salary. In all,
discovered that the aforesaid cash advance had not yet been Petitioner’s full liquidation of his cash advance by means of an
liquidated. There were salary deductions wherein the unliquidated arrangement allowed by the COA ultimately translated into a legal
amount became P256K and later on he made a certification avoidance of violation of Art. 218.
showing that the cash advance will be deducted from his terminal
leave pay for such. Nonetheless, an information was field against Even granting that it was malversation which petitioner was alleged
him for the full amount of P500K before he was able to pay the to have committed, it has been ruled that good faith is a valid
whole balance. Regardless, there was the issuance of the warrant for defense in a prosecution for malversation of public funds as it would
his arrest. negate criminal intent on the part of the accused. Petitioner’s full
liquidation of his cash advance by means of an arrangement allowed
The information reads that: by the COA ultimately translated into the good faith he interposed
That on May 17, 2006, or sometime prior or subsequent as a defense. Panganiban is acquitted.
thereto, in Santa Cruz, Laguna, Philippines and within the
jurisdiction of this Honorable Court, the above named Panganiban Case from Ilogon Case, Distinguished
accused Domingo G. Panganiban, a public officer, being then The fact that the accused fully settled the amount is of no
the Municipal Mayor of Sta. Cruz, Laguna and as such
moment, the return is of no moment, at best it is a mitigating
accountable for public funds received and/or entrusted to him
by reason of his office, acting in relation to his office and
circumstance, when you compare that in the case of
taking advantage of the same, obtained cash advances in the Panganiban, the Court ruled that the full liquidation of the cash
total amount of Php500,000.00 from the Municipal Treasury advance in agreement with COA is considered as a badge of
of Sta. Cruz, Laguna to finance his projected travel to Adelaide, good faith. How do you determine which case to apply in the
South Australia but said accused once in possession of said set case of acts?
amount of money did not undertake his official travel and was
only able to return the amount of Php36,068.22 upon Even if Article 217 applies even if it applies to the custody or
demand by a duly authorized officer and therefore has
control, even if we assume applies, Supreme Court payment is
willfully, unlawfully and feloniously taken, misappropriated
and converted to his own personal use and benefit the
treated as a good defense in malversation. It may be a
amount of Php463,931.78, to the damage and prejudice of the distinction, but it is not a significant distinction, between the
government in the aforestated amount. Contrary to law. application of the cases.
Sandiganbayan found him guilty and stated that the defense of The distinction is nature as to how the nature of how the
good faith is unavailing for he had legal obligation to return the funds how it was disposed. In Panganiban, it was a valid
amount and that cash advance in his favor and being able to disbursement, in Ilogon, the disbursement was at the outset
reimburse wad done a year after demand and that payment does
invalid and illegal.
not exintguished criminal liability and that is was only mitigating.
Elements for Article 217 on Malversation Second, the return in the fund is legal, in Panganiban the COA
1. The offender is a public officer. recognized the return. In Ilogon, there was no valid process. The
2. He has custody and control of the funds or property by return of the amount should be treated on the case to case
reason of the duties of his office; basis, that payment in good faith should be made in a case to
3. The funds or property are public funds or property for case basis. In Panganiban, it was not just payment, in giving rise
which he is accountable, and most importantly, to the conclusion that Panganiban acted in good faith.
4. He had appropriated, taken, misappropriated or consent
or through abandonment or negligence, permitted
another person to take them.
He was indeed a public officer, but it was not correct to rule that
he had custody over the funds by reason of his office. TO HAVE
CUSTODY OF FUNDS OR PROPERTY BY REASON OF HIS PUBLIC
OFFICE, a public officer must be a cashier, treasurer, collector,
property officer tasked with the taking of money or property from
the public which they are duty-bound to keep temporarily until such
deposited in official depository banks or similar entities; or until they
shall have endorsed such money or property to other accountable
officers or concerned offices.
SPECIAL LAW DISCUSSION (f) by taking advantage of official position, authority,

PLUNDER - RA 7080 relationship, connection or influence to unjustly
enrich himself or themselves at the expense and
What is Meant by Plunder? to the damage and prejudice of the Filipino
Any public officer who, by himself or in connivance with people and the Republic of the Philippines; and,
members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons, amasses, 3. That the aggregate amount or total value of the ill-
accumulates or acquires ill-gotten wealth through a gotten wealth amassed, accumulated or acquired is at
combination or series of overt or criminal acts as described in least P50,000,00.00
Section 1(d) hereof, in the aggregate amount or total value of
at least Seventy-five million pesos (P50,000,000.00), shall be Rule of Evidence
guilty of the crime of plunder and shall be punished by life For purposes of establishing the crime of plunder, it shall not
imprisonment with perpetual absolute disqualification from be necessary to prove each, and every criminal act done by the
holding any public office. Any person who participated with accused in furtherance of the scheme or conspiracy to amass,
said public officer in the commission of plunder shall likewise accumulate or acquire ill-gotten wealth, it being sufficient to
be punished. In the imposition of penalties, the degree of establish beyond reasonable doubt a pattern of overt or
participation and the attendance of mitigating and extenuating criminal acts indicative of the overall unlawful scheme or
circumstances shall be considered by the court. The court shall conspiracy. This is upheld by the Supreme Court in the case of
declare any and all ill-gotten wealth and their interests and Estrada v. Sandiganbayan.
other incomes and assets including the properties and shares
of stock derived from the deposit or investment thereof ESTRADA v. SANDIGANBAYAN (2001)
forfeited in favor of the State.
This is a case involving the plunder accusation against Former
What are the Elements of Plunder? President Joseph Ejercito Estrada and the constitutionality of
As discussed in Estrada vs. Sandiganbayan (2001), the elements Republic Act 7080 of the Anti-Plunder Act.
of the crime of plunder are:
1. That the offender is a public officer who acts by What Happened?
himself or in connivance with members of his family, Basically there was an information alleging that he, as the
relatives by affinity or consanguinity, business President of the Republic of the Philippines together with
associates, subordinates or other persons. certain individuals of consanguinity, subordinates, by taking
undue advantage of his position, authority, relations,
2. That he amassed, accumulated or acquired ill-gotten connection or influence, did then and there unlawfully amassed,
wealth through a combination or series of the accumulate and acquire by himself the amount of P4M unjustly
following overt or criminal acts: enriching himself or themselves at the expenses and to the
(a) through misappropriation, conversion, misuse, or damage of the Filipino people and the Republic of the
malversation of public funds or raids on the Philippines, for his personal gain and benefit through a
public treasury; combination or series of unlawful acts.
(b) by receiving, directly or indirectly, any
commission, gift, share, percentage, kickback or Is the RA 7080 Unconstitutional for Vagueness? NO
any other form of pecuniary benefits from any The court held in the negative. Republic Acts which are the
person and/or entity in connection with any product of the legislative body of the country enjoy a
government contract or project or by reason of presumption of constitutionality and the petitioner failed to
the office or position of the public officer; overthrow such presumption.
(c) by the illegal or fraudulent conveyance or
disposition of assets belonging to the National As long as the law affords some comprehensible guide or rule
Government or any of its subdivisions, agencies that would inform those who are subject to it what conduct
or instrumentalities of Government owned or would render them liable to its penalties, its validity will be
controlled corporations or their subsidiaries; sustained. It must sufficiently guide the judge in its application;
(d) by obtaining, receiving or accepting directly or the counsel, in defending one charged with its violation; and
indirectly any shares of stock, equity or any other more importantly, the accused, in identifying the realm of the
form of interest or participation including the proscribed conduct.
promise of future employment in any business
enterprise or undertaking; Indeed, it can be understood with little difficulty that what the
(e) by establishing agricultural, industrial or assailed statute punishes is the act of a public officer in
commercial monopolies or other combinations amassing or accumulating ill-gotten wealth of at least
and/or implementation of decrees and orders P50,000,000.00 through a series or combination of acts
intended to benefit particular persons or special enumerated in Sec. 1, par. (d), of the Plunder Law.
interests; or
In fact, the amended Information itself closely tracks the does away with proof of each and every component of the
language of the law, indicating with reasonable certainty the crime thus a violation of due process.
various elements of the offense which petitioner is alleged to COURT REPLY: No. There seems to be a dismal misconception.
have committed. What the prosecution needs to prove beyond reasonable
doubt is only a number of acts sufficient to form a combination
The Court discerns nothing in the foregoing that is vague or or series which would constitute a pattern and involving an
ambiguous as there is obviously none that will confuse amount of at least P50M.
petitioner in his defense, although subject to proof, these
factual assertions clearly show that the elements of the crime are There is no need to prove each and every other act alleged in
easily understood and provide adequate contrast between the the Information to have been committed by the accused in
innocent and the prohibited acts. Upon such unequivocal furtherance of the overall unlawful scheme or conspiracy to
assertions, petitioner is completely informed of the accusations amass, accumulate or acquire ill-gotten wealth.
against him as to enable him to prepare for an intelligent
defense. To illustrate, suppose that accused is charged with an
Information for plunder with having committed 50 raids on
“Combination or series of the Following Acts” public treasury, the prosecution need not prove all these 50
According to the case of Estrada v. Sandiganbayan (2001), when raids, it being sufficient to by patter at least two raids beyond
the Plunder Law speaks of "combination," it is referring to at reasonable doubt to at least P50M.
least two (2) acts falling under different categories of
enumeration provided in Sec. 1, par. (d), e.g., raids on the public Being a purely procedural measure, Section 4 does not define
treasury in Sec. 1, par. (d), subpar. (1), and fraudulent or establish any substantive right in favor of the accused but
conveyance of assets belonging to the National Government only operates in furtherance of a remedy.
under Sec. 1, par. (d), subpar. (3).
Plunder is a Crime Mala In Se
On the other hand, to constitute a “series" there must be two The application of mitigating and extenuating circumstances in
(2) or more overt or criminal acts falling under the same the Revised Penal Code to prosecutions under the Anti-Plunder
category of enumeration found in Sec. 1, par. (d), say, Law indicates quite clearly that mens rea is an element of
misappropriation, malversation and raids on the public plunder since the degree of responsibility of the offender is
treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, determined by his criminal intent. It is true that 2 refers to "any
had the legislature intended a technical or distinctive meaning person who participates with the said public officer in the
for "combination" and "series," it would have taken greater commission of an offense contributing to the crime of plunder."
pains in specifically providing for it in the law. There is no reason to believe, however, that it does not apply
as well to the public officer as principal in the crime.
Without demand you can still prove with other means, it is only
to give rise to the presumption of the crime. Good faith is a
defense that crime in the Malversation in the case.
NOTE: The facial challenges of void-for-vagueness and

overbreadth are only applicable to free speech cases, it is
understood that penal statutes already have an in terrorem
effect in them, thus these facial challenges do not apply.
Does Section 4 of RA 7080 Violate the Constitutional

Quantum of Evidence for Guilt beyond Reasonable Doubt?
SECTION 4. Rule of Evidence. - For purposes of establishing

the crime of plunder, it shall not be necessary to prove each
and every criminal act done by the accused in furtherance of
the scheme or conspiracy to amass, accumulate or acquire ill-
gotten wealth, it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy.
CONTENTION: Estrada here attacks such provision because the

Plunder Law seems to circumvent the immutable obligation of
the prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it only
requires a proof of a pattern of overt or criminal acts showing
unlawful scheme or conspiracy. Petitioner posits that Section 4
MACAPAGAL-ARROYO v. PEOPLE (2016) What Happened in this Case?

This case emerged because the Ombudsman filed a case
This case involves the Former President GMA on a charge against the hereby petitioners for the crime of plunder under
involving the charge under RA 7080 on Plunder which revolves RA 7080. Central to the case are the participation of:
around the Confidential Intelligence Fund that was taken from • Arroyo, as the president who approves the addition
the PCSO that was maliciously seen to have been Confidential Intelligence Fund for PCSO.
misappropriated as discovered by the COA. However due to • Aguas, PSCO Budget and Accounts Officer who
failure to establish the three essential elements for the crime of certifies the availability of the funds for release to the
plunder, the Demurrer of Evidence of Gloria Macapagal-Arroyo officers for the Confidential Intelligence Fund (CIF)
and Aguas was granted by the Supreme Court. towards the Special Disbursing Officers (SDO)
• Uriarte, General Manager and Vice Chairman of PCSO
The Information who designated as an SDO.
The undersigned Assistant Ombudsman and Gratl Investigation and • Valencia, PCSO Chairman of the Board of Directors
Prosecution Officer III, Office of the Ombudsman, hereby accuse who was also designated as an SDO.
GLORIA MACAPAGAL-ARROYO, ROSARIO C. URIARTE, SERGIO O.
VALENCIA, MANUEL L. MORA TO, JOSE R. TARUC V, RAYMUNDO T. Basically what happened was revolves around the testimony by
ROQUERO, MA. FATIMA A.S. V ALOES, BENIGNO B. AGUAS, REYNALDO
Atty. Aleta Tolentino, a lawyer and a certified public
A. VILLAR and NILDA B. PLARAS, of the crime of PLUNDER, as defined
accountant, who was a present member of the PCSO Board of
by, and penalized under Section 2 of Republic Act (R.A.) No. 7080, as
amended by R.A. No. 7659, committed, as follows: Directors and the Chairman of an Audit Committed.
That during the period from January 2008 to June 2010 or sometime This revolved around the comingling (unauthorized merging)
prior or subsequent thereto, in Quezon City, Philippines, and within the of the charity fund, prize fund and operating fund of the PCSO
jurisdiction of this Honorable Court, accused GLORIA MACAPAGAL- and found out that there was excessive disbursement of
ARROYO, then the President of the Philippines, ROSARIO C. URIARTE, Confidential Intelligence Fund (CIF) which was sourced from
then General Manager and Vice Chairman, SERGIO O. VALENCIA, then
the PCSO funds. Due to these, she was instructed to do an in-
Chairman of the Board of Directors, MANUEL L. MORA TO, JOSE R.
depth investigation of the disbursement in excess of the
TARUC V, RAYMUNDO T. ROQUERO, MA. FATIMA A.S. V ALOES, then
members of the Board of Directors, BENIGNO B. AGUAS, then Budget allotments for the CIF.
and Accounts Manager, all of the Philippine Charity Sweepstakes Office
(PCSO), REYNALDO A. VILLAR, then Chairman, and NILDA B. PLARAS, From the records, it appeared that URIARTE would ask for
then Head of Intelligence/Confidential Fund Fraud Audit Unit, both of Additional CIF by letter of President ARROYO which she
the Commission on Audit, all public officers committing the offense in approves by affixing her signature on the letter-request. The
relation to their respective offices and taking undue advantage of their summary of these disbursements from CIF amount to P365M.
respective official positions, authority, relationships, connections or
During the Senate Blue Ribbon Committee, it was shown that
influence, conniving, conspiring and confederating with one another,
Uriarte, testified that all the confidential intelligence projects
did then and there willfully, unlawfully and criminally amass, accumulate
and/or acquire. Directly or indirectly, ill-gotten wealth in the aggregate she proposed were indeed proved by PGMA and signed in her
amount or total value of THREE HUNDRED SIXTY FIVE MILLION NINE presence.
HUNDRED NINETY SEVEN THOUSAND NINE HUNDRED FIFTEEN PESOS
(PHP 365,997,915.00), more or less, through any or a combination or Checking the Legality of Disbursements
a series of overt or criminal acts, or similar schemes or means, described Atty. Aleta Tolentino presented a seven-step discussion on how
as follows: the CIF fund should have been correctly disbursed in
accordance with existing circulars and regulations and what was
(a) diverting in several instances, funds from the operating budget of
considered anomalous thus giving rise to this case.
PCSO to its Confidential/Intelligence Fund that could be accessed
and withdrawn at any time with minimal restrictions, and
converting, misusing, and/or illegally conveying or transferring the Correct Procedure Anomalous Transaction
proceeds drawn from said fund in the aforementioned sum, also in STEP 1 This was not followed in the PSCO
several instances, to themselves, in the guise of fictitious expenditures, There must an CIF disbursement in the following
for their personal gain and benefit;
allotment of a • In 2008: allotted P28M;
budget because no disbursed P86M.
(b) raiding the public treasury by withdrawing and receiving, in
several instances, the above-mentioned amount from the CIF fund can be • In 2009: allotted P60M;
Confidential/Intelligence Fund from PCSO's accounts, and or disbursed without disbursed P139M.
unlawfully transferring or conveying the same into their possession and the allocation. • In 2010: allotted P60M;
control through irregularly issued disbursement vouchers and fictitious disbursed P141M.
expenditures; and STEP 2 There were no detailed specific
If the budget is project proposals and that there
(c) taking advantage of their respective official positions, authority,
correct, the were no reasons for each additional
relationships, connections or influence, in several instances, to unjustly
President will intelligence fund that was approved
enrich themselves in the aforementioned sum, at the expense of, and
the damage and prejudice of the Filipino people and the Republic of approve the by PGMA.
the Philippines. disbursement.
STEP 3 The BOD designate Uriarte and Issue:

Designation of the Valencia as SDOs and this was Whether or not the Ombudsman sufficiently established all the
Special Disbursing wrongly done because it was shown elements for the crime of plunder.
Officer. that Uriarte was both the disbursing
officer as well as the officer who COURT RULING: No. The elements of plunder was not
shall sign the vouchers and checks sufficiently established, thus the Demurrers to Evidence hereby
and the payee of the checks. are granted acquitting both Arroyo and Aguas.
SDO must have a There was no fidelity bond. FIRST ELEMENT

fidelity bond to That the offender is a public officer who acts by himself or in connivance
protect government Aguas, as the PCSO Budget Office with members of his family, relatives by affinity or consanguinity,
same as the amount would certify that there are business associates, subordinates or other persons.
disbursed by him. adequate funds stating that they are
good for release of cash advances. The first element here was not sufficiently established due to
STEP 4 In this case, the vouchers the failure to allege the main plunderer despite the wheel
Specifications for themselves are couched in general conspiracy that should be alleged referencing the case of
Projects the Cash terms and that such were “in Estrada v. Sandiganbayan (2001).
Advances were accordance with duties” and that
Disbursed for there is no particular project SANDIGANBAYAN: GMA’s act of approving not only the additional
indicated for the cash advance. CIF funds but also their releases, aided and abetted accused
STEP 5 No supporting documents were Uriarte’s successful raids on the public treasury thus she must
Liquidation of use of established in this case and that be rightly charged as a conspirator of Uriarte who accumulated
the CIF there was justifiable reason why the CIF Funds.
they were not able to show the
In a liquidation supporting documents. Still, the COURT REPLY: In this regard Sandiganbayan grave abused its
report, there must liquidation reports are couched in discretion amounting to lack or excess of its jurisdiction. To
be vouchers or general terms and it was for donated start with, its conclusion that GMA had been the mastermind of
receipts to support medicines and for other non-PCSO plunder was plainly conjectural and unfounded consideration
the liquidation. functions for that matter. that the information did not aver at all that she had been
STEP 6 This was not validly issued, instead the mastermind. The treatment of her unqualified “OK” as an
Usually, when the of following such, the COA issued a overt act of plunder was unwarranted considering that such act
liquidation was in credit notice but did not specify that was a common legal and valid practice of signifying approval of
order the COA will the transaction was indeed audited. a fund release of a president.
issue a Credit There were no supporting vouchers
Notice that would and the certificated was not clearly Wheel Conspiracy and Chain Conspiracy
show that the established for what purpose. To be considered a part of the conspiracy, each of the accused
liquidation was must be shown to have performed at least an overt act in
correct. pursuance of furtherance of the conspiracy. An act or conduct
then becomes an overt act of a crime only when it evinces a
STEP 7 This was allowed due to the
The issuance of the issuance of the credit notice thus causal relation to the intended crime because the act or
credit notice by COA settled the accounts of the officers conduct will not be an overt act of the crime if it does not have
an immediate and necessary relation to the offense. In
will make the agency responsible for such.
Estrada, the court recognized two nuances of appreciating
look up to the books
and credit the cash conspiracy as a means to commit crime:
advance indicating
that the account was 1. Wheel Conspiracy
This occurs when there is a single person or group (the hub)
settled.
dealing individually with two or more other persons or groups
(the spokes). The spoke typically interacts with the hub rather
Sandiganbayan Proceedings
than with another spoke. In the event that the spoke shares a
The Sandiganbayan granted the Demurrers for the other
common purpose to succeed, there is a single conspiracy,
respondents, found Uriarte responsible for raiding public
however, in the instance when each spoke is unconcerned with
treasury for looting government funds and appears to not have
the success of the other shown spokes, there are multiple
been able to account for it and that the finding points out the
conspiracies.
commission by Uriarte of the crime of Plunder.
This was applied in the case of Estrada, wherein there is only
As to Arroyo her “OK” notation and signature to Uriarte’s
one conspiracy involved and it was the conspiracy alleged in
requests which was unqualified allowed the plunder to happen
the information for plunder.
thus Arroyo’s and Aguas’ demurrers were denied.
The information was filed against Former President Estrada and aggregate ill-gotten wealth, which is far below the threshold
his co-conspirators. It was pointed out that the Former value of ill-gotten wealth required for plunder.
President Estrada was the hub while the spokes were all the In addition, even the Sandiganbayan was at loss in this respect.
other accused individuals. The rim that enclosed all the spokes Despite the silence of the information on who the main
was the common goal in the overall conspiracy, the amassing, plunderer or the mastermind was, the Sandiganbayan
accumulation and acquisition of ill-gotten wealth. readily condemned GMA in its resolution dated September
10, 2015 as the mastermind despite the absence of the specific
2. Chain Conspiracy allegation in the information to that effect. Even worse, there
This occurs when there is successive communication and was no evidence substantiated such sweeping generalization.
cooperation in much the same way as with legitimate business
operations between manufacturer and wholesaler, then RULE: The Prosecution’s failure to properly allege the main
wholesaler and retailer, and then retailer and consumer. This plunderer is fatal to the cause of the State against them for
involves individuals linked together in a vertical chain to violating the rights of each accused to be informed of the
achieve a criminal objective. charges against each of them.
Illustration is that case of US v. Bruno, wherein there was a SECOND ELEMENT

conspiracy of dangerous drugs from the smugglers, to the That he amassed, accumulated or acquired ill-gotten wealth through a
middlemen, to retailers for distribution for addicts and that the combination or series of the following overt or criminal acts (a) – (f).
retailers knew that the middle men purchased drugs from
smugglers. Each conspirator knew that the success of that party The second element involves the overt acts, but here, the Court
with which he was immediately concerned was dependent applies the maxim noscitur a sociis in statutory construction
upon the success of the whole. stating that the overt acts required the element of personal
benefit and for such the failed to prove the predicate act of
IN THE CASE: It is notable that the Prosecution did not allege raiding the public treasury.
that the conspiracy was express, wheel or chain. This was a
fatal flaw by the prosecution. SANDIGANBAYAN: There is no more need for Prosecution to
establish that the public officer had benefited from raiding the
Identification of the Main Plunderer Required public treasury for what was necessary was proving that the
The law on plunder requires that a particular public officer must public officer had raided the public coffers. For the terms
be identified as the one who amassed, acquired or accumulated “unjust enrichment”, “personal benefit” are only covered in other
ill-gotten wealth because it plainly states that plunder is paragraphs of Section 1(d).
committed by any public officer who, by himself or in
connivance with members of his family, relatives by affinity or COURT REPLY: We do not share Sandiganbayan’s contention. To
consanguinity, business associates, subordinates or other discern the proper import of the phrase raids on the public
persons, amasses, accumulates or acquires ill-gotten wealth in treasury, the key is to look at the accompanying words:
the aggregate amount or total value of at least P50,000,000.00 misappropriation, conversion, misuse or malversation of public
through a combination or series of overt criminal acts as funds.
described in Section l(d) hereof.
This process is conformable with the maxim of statutory
Surely, the law requires in the criminal charge for plunder construction noscitur a sociis, by which the correct
against several individuals that there must be a main construction of a particular word or phrase that is ambiguous
plunderer and her co-conspirators, who may be members of in itself or is equally susceptible of various meanings may be
her family, relatives by affinity or consanguinity, business made by considering the company of the words in which the
associates, subordinates or other persons. In other words, the word or phrase is found or with which it is associated.
allegation of the wheel conspiracy or express conspiracy in the
information was appropriate because the main plunderer What was removed from the coverage of the bill and the final
would then be identified in either manner. Of course, implied version that eventually became the law was a person who was
conspiracy could also identify the main plunderer, but that fact not the main plunderer or a co-conspirator, but one who
must be properly alleged and duly proven by the Prosecution. personally benefited from the plunderers' action. The
requirement of personal benefit on the part of the main
IN THE CASE: Here, considering that 10 persons have been plunderer or his co-conspirators by virtue of their plunder was
accused of amassing, accumulating and acquiring ill-gotten not removed.
wealth aggregating P365M it would be improbable that the
crime charged was plunder if none of them was alleged to be RULE: Not only did the Prosecution fail to show where the
the main plunderer. money went but, more importantly, that GMA and Aguas had
personally benefited from the same. Hence, the Prosecution
As such, each of the 10 accused would account for the aliquot did not prove the predicate act of raids on the public treasury
amount of only P36,599,791.50, or exactly 1/10 of the alleged beyond reasonable doubt.
THIRD ELEMENT incumbent upon every public employee who handles

That the aggregate amount or total value of the ill-gotten wealth government funds to render an account of all he receives or has
amassed, accumulated or acquired is at least P50,000,00.00 in his charge by reason of his employment. NOTE:
Misappropriation is not necessary. Those who do not have
Technically, due to the failure of the Prosecution to show that custody over them, the proper chargeable offense is Article 218
there was indeed personal benefit, the accused could not be (under the case of Panganiban).
comprehended to amass, accumulate and acquire a total
value of ill-gotten wealth of at least P50M. ARTICLE 219. Failure of a responsible public officer to
render account before leaving the country. – Any public
The Corpus Delicti of Plunder officer who unlawfully leaves or attempts to leave the
The corpus delicti (body of the crime) of plunder is the Philippines without securing a certificate from Commission
amassment, accumulation, or acquisition of ill-gotten wealth on Audit showing that his accounts have been finally settled,
shall be punished by arresto mayor, or fine ranging from
valued at not less than P50,000,000. It was shown that the
Forty thousand pesos (P40,000) to Two Hundred thousand
Prosecution failed to establish such. pesos (P200,000), or both.
As regards the element that the public officer must have

amassed, accumulated or acquired ill-gotten wealth worth at ELEMENTS
least P50,000,000.00, the Prosecution adduced no evidence 1. That the offender is a public officer.
showing that either GMA or Aguas or even Uriarte, for that 2. That he must be an accountable officer for public
matter, had amassed, accumulated or acquired ill-gotten funds or property.
wealth of any amount. There was also no evidence, testimonial 3. That he must have unlawfully left (or be on the point
or otherwise, presented by the Prosecution showing even the of leaving) the Philippines without securing from the
remotest possibility that the CIFs of the PCSO had been diverted Commission on Audit a certificate showing that his
to either GMA or Aguas, or Uriarte. The absolute lack of evidence accounts have been finally settled.
on this material but defining and decisive aspect of the criminal
prosecution. NOTE: The act of leaving the country must be unauthorized or
not permitted by law. You must obtain clearance from COA.
ARTICLE 218. Failure of accountable officer to render

accounts. – Any public officer, whether in the service or ARTICLE 220. Illegal use of public funds or property. – Any
separated therefrom by resignation or any other cause, who public officer who shall apply any public funds or property
is required by law or regulation to render account to the under his administration to any public use other than for
Commission on Audit, or to a provincial auditor and who fails which such fund or property were appropriated by law or
to do so for a period of two (2) months after such accounts ordinance shall suffer the penalty of prision correccional in its
should be rendered, shall be punished by prision correccional minimum period or a fine ranging from one-half of the total
in its minimum period, or by a fine ranging from Forty value of the sum misapplied, if by reason of such
thousand pesos (P40,000) to One million two hundred misapplication, any damages or embarrassment shall have
thousand pesos (P1,200,000) or both. resulted to the public service. In either case, the offender shall
also suffer the penalty of temporary special disqualification.
ELEMENTS If no damage or embarrassment to the public service has

1. That the public officer, whether in the service or resulted, the penalty shall be a fine from 5 to 50 percent of the
separated therefrom. sum misapplied.
2. That he must be an accountable officer for public
funds or property. ELEMENTS OF TECHNICAL MALVERSATION
3. That he is required by law or regulation to render 1. That the offender is a public officer.
accounts to the Commission on Audit, or to a 2. That there is public fund or property under his
provincial auditor. administration.
4. That he fails to do so for a period of two months after 3. That such public fund or property has been
such accounts should be rendered. appropriated by law or ordinance.
4. That the applies the same to a public use other than
Demand for Accounting Not Necessary that for which such fund or property has been
Art. 218 does not require that there be a demand by the appropriated by law or ordinance.
Commission on Audit or provincial auditor that the public
officer should render an account. It is sufficient that there is a NOTE: There is no technical malversation if there is no law or
law or regulation requiring him to render an account. ordinance appropriating public funds or property for a
particular purpose for such. Because the public funds or
Reason for the Article property must be appropriated by law or ordinance for
The reason for this is that the law does not so much particular purposes.
contemplate the possibility of malversation as the need of
enforcing by a penal provision the performance of the duty
NOTE: The accused can still be held liable for Malversation Refusal to Make Delivery Must be Malicious
under Article 217 even if the funds applied to public use are Under No. 2 (refusal to make delivery of property), the refusal
not appropriated by law or ordinance because this is must be malicious also. Thus, a stenographer of the provincial
appropriation of public funds without right to do so. board who retains in his possession the stenographic notes
taken by him for the purpose of transcribing the same does not
Illegal Use Malversation commit a violation of this article. Moreover, the prosecution did
Both offenders are accountable public officers not prove damage to public interest.
Offender does not derive Offender in certain cases
any personal gain or profit profits from the proceeds ARTICLE 222. Officers included in the preceding
Public fund or property is Public fund or property is provisions – The provisions of this chapter shall apply to
applied to another public applied to personal use and private individuals who in any capacity whatever, have
charge of any national, provincial, or municipal funds,
use benefit of the offender or of
revenues, or property, or to any administrator or depository
(MALUM PROHIBITUM) another person of funds or property attached, seized, or deposited by public
authority, even if such property belong to a private
Technical Malversation is Not Included in Nor Does It individual.
Necessarily Include the Crime of Malversation
A comparison of Art. 217 and Art. 220 reveals that their Private Individuals Who may be Liable Under 217-221.
elements are entirely distinct and different from the other. In 1. Private individuals, who, in any capacity whatever,
malversation of public funds, the offender misappropriates have charge of any national, provincial, or municipal
public funds for his own personal use or allows any other funds, revenue or property.
person to tale such public funds for the latter's personal use. In 2. Administrator or depository of funds or property,
technical malversation, the public officer applies public funds attached, seized or deposited by public authority,
under his administration not for his or another's personal use, even if such property belongs to a private individual.
but to a public use other than that for which the fund was Rationale: The purpose of Article 222 of the Revised Penal
appropriated by law or ordinance. Technical malversation is, Code is to extend the provisions of the Code on malversation
therefore, not included in nor does it necessarily include the to private individuals.
crime of malversation of public funds charged in information.
CHAPTER FIVE
ARTICLE 221. Failure to make delivery of public funds or INFIDELITY OF PUBLIC OFFICERS
property – Any public officer under obligation to make Prisoners, Documents and Secrets
payment from Government funds in his possession, who shall
fail to make such payment, shall be punished by arresto
Section One. – Infidelity in the Custody of Prisoners
mayor and a fine from five (5) to twenty-five (25) percent of
the sum which he failed to pay.
ARTICLE 223. Conniving with or consenting to evasion. –
This provision shall apply to any public officer who, being Any public officer who shall consent to the escape of a
ordered in his custody or under his administration, shall prisoner in his custody or charge, shall be punished:
refuse to make such delivery. 1. By prision correccional in its medium and maximum
periods and temporary special disqualification in its
The fine shall be graduated in such case by the value of the maximum period to perpetual special
thing: Provided, That it shall not be less than Ten thousand disqualification, if the fugitive shall have been
pesos (P10,000). sentenced by final judgment to any penalty.
2. By prision correccional in its minimum period and
temporary special disqualification in case the
ACTS PUNISHABLE UNDER ARTICLE 221 fugitive shall not have been finally convicted but
1. By failing to make payment by a public officer who is only held as a detention prisoner for any crime in
under obligation to make such payment from violation of law or municipal ordinance.
Government funds in his possession;
2. By refusing to make delivery by a public officer who
ELEMENTS
has been ordered by competent authority to deliver
1. That the offender is a public officer.
any property in his custody or under his
2. That he had in his custody or charge, a prisoner, either
administration.
detention prisoner or prisoner by final judgment.
3. That such prisoner escaped from his custody.
Elements of Failure to Make Payment
4. That he was in connivance with the prisoner in the
(a) That the public officer has Government funds in his
latter’s escape.
possession;
(b) That he is under obligation to make payment from
NOTE: Article 223 punishes any public officer who shall consent
such funds;
to the escape of a prisoner in his custody or charge,
(c) That he fails to make the payment maliciously.
connivance is an indispensable element under Article 223. It is
whether convict or detainee determines penalty.
Constructive Evasion. Leniency or laxity is not infidelity. The request for lunch and the consequent delay was an opportunity
However, relaxation of imprisonment is considered as for the prisoner to learn of a plan or to carry out an earlier plan by
infidelity. There is real and actual evasion of service of a which she could escape. The plan was in fact carried out with the
help of the lady who accompanied his prisoner inside the
sentence when the custodian permits the prisoner to obtain a
comfort room. The use of a toilet is one of the most familiar and
relaxation of his imprisonment and to escape the punishment
common place methods of escape. It is inconceivable that a
of being deprived of his liberty, making the penalty ineffectual, police officer should fall for this trick.
although the convict may not have fled. HE MUST CONNIVE.
The arrangement with a lady friend should have aroused the
ARTICLE 224. Evasion through negligence. – If the evasion petitioner's suspicion because the only pretext given by the
of the prisoner shall have taken place through the negligence petitioner was that she was going to answer the call of nature. It was,
of the officer charged with the conveyance or custody of the therefore, unnecessary for her to be accompanied by anyone
escaping prisoner, said officer shall suffer the penalties of especially by someone who was not urgently in need of a toilet if
arresto mayor in its maximum period to prision correccional the purpose was merely to relieve herself.
in its minimum period and temporary special
disqualification. Despite this, the petitioner allowed the two to enter the comfort
room without first establishing for himself that there was no window
or door allowing the possibility of escape. He even allowed the
ELEMENTS (BOTH CONVICT AND DETAINEE) prisoner's companion to leave the premises with the excuse that the
1. That the offender is a public officer. prisoner was having her monthly period and that there was a need
2. That he is charged with the conveyance or custody of to buy sanitary napkins. And he patiently waited for more than ten
a prisoner, either detention prisoner or prisoner by minutes for the companion to return. This was patent negligence
and incredible naiveté on the part of the police officer. Thus, he
final judgment.
is liable for infidelity in the custody of prisoners under Article 224
3. That such prisoner escapes through his negligence. not Article 223 for he was not in connivance with them.
NOTE: What is punished in evasion through negligence is such

What if the Public Office Recaptured the Escapee?
a definite laxity as all but amounts deliberate non-performance
This does not afford him complete exculpation. The
of duty on the part of guard.
circumstance that the appellant by himself and without help
from other peace officers immediately went in pursuit of the
Not every negligence or distraction of guard is penalized; it is
escapee and did not rest until he recaptured him three days
only that positive carelessness that is short of deliberate non-
later is not such a circumstance as to afford complete
performance of his duties as guard that is the gravamen of the
exculpation. The crime has been consummated.
crime of infidelity. To be a detainee there must be formal
charges filed for applying Article 223 and 224 of the RPC.
What is the Liability of the Escaping Prisoner?
1. If serving sentence by reason of final judgment, he is
RODILLAS v. SANDIGANBAYAN
liable for evasion of service of sentence under 157.
FACTS: Accused was a policeman who was assigned to escort
2. If only a detention prisoner, he does not incur any
Zenaida Andres, a detention prisoner, from the city jail to the CFI of
Caloocan. After the hearing of the case, accused consented to the criminal liability.
request of Zenaida’s husband to allow them to have lunch. After
eating, accused accompanied Zenaida and a lady companion to the ARTICLE 225. Escape of prisoner under the custody of a
ladies’ room as Zenaida needed to relieve herself. person not a public officer. – Any private person to whom
the conveyance or custody of a prisoner or person under
Not long after, the lady companion came out of the comfort room arrest shall have been confided, who shall commit any of the
and told him that she was going to buy sanitary napkins for Zenaida offenses mentioned in the two preceding articles, shall suffer
as the latter was then bleeding and had a menstruation and could the penalty next lower in degree than that prescribed for the
not go out of the comfort room. public officer.
After ten minutes elapsed without the lady companion coming

back, the accused became suspicious and entered the comfort ELEMENTS
room. He noticed that the window of said comfort room was not 1. That the offender is a private person.
provided with window grills. He tried to peep out of the window by 2. That the conveyance or custody of a prisoner or
stepping on the flush tank and notice that outside of the window person under arrest is confided to him.
there was a concrete eave extending down to the ground floor of 3. That the prisoner or person under arrest escapes.
the building which he presumed that Zenaida might have used as a
4. That the offender either (a) consents to the escape of
passage.
the prisoner or person under arrest or (b) that the
HELD: It is the duty of any police officer having custody of a prisoner escape takes place through his negligence.
to take necessary precautions to assure the absence of any means
of escape. A failure to undertake these precautions will make his act NOTE: While in infidelity in the custody of prisoners committed
one of definite laxity or negligence amounting to deliberate non- by public officers (Arts. 223 and 224) the Code speaks of
performance of duty. His tolerance of arrangements whereby the "prisoner," in the escape of prisoner under the custody of a
prisoner and her companions could plan and make good her escape person not a public officer (Art. 225), the Code mentions also
should have aroused the suspicion of a person of ordinary prudence.
"person under arrest" whose conveyance or custody must be

confided to the offender. It is not necessary that the act of removal must be coupled with
proof of intention to conceal. The word "or" is a disassociation
Art. 225 is not applicable if a private person was the one who and independence of one thing from each of the other things
made the arrest and he consented to the escape of the person mentioned. While in the interpretation of statutes, "or" may be
he arrested. read "and" and vice versa, it is so only when the context so
requires. Accordingly, removal, destruction, and concealment
Section Two. – Infidelity in the Custody of Documents must be viewed as distinct modes of committing the offense.
ARTICLE 226. Removal, concealment or destruction of Removal must be for Illicit Purpose
documents. – Any public officer who shall remove, destroy or To warrant a finding of guilt for the crime of infidelity in the
conceal documents or papers officially entrusted to him, shall custody of documents, the act of removal, as a mode of
suffer: committing the offense, should be coupled with criminal
1. The penalty or prision mayor and a fine not intent or illicit purpose. (Manzanaris vs. People, 127 SCRA 201)
exceeding Two hundred thousand pesos
(P200,000), whenever serious damage shall have
Thus, where the act of removal is actuated with lawful or
been caused thereby to a third party or to the public
interest. commendable motives, as when documents are removed
2. The penalty of prision correccional in its minimum from their usual place to secure them from imminent danger of
and medium periods and a fine Two hundred loss or destruction, there would be no crime committed. The
thousand pesos (P200,000), whenever the damage removal is for an illicit purpose when the intention of the
caused to a third party or to the public interest shall offender is to –
not have been serious. 1. Tamper with it, or
2. Profit by it, or
In either case, the additional penalty of temporary special
3. To commit an act constituting a breach of trust in the
disqualification in its maximum period to perpetual special
disqualification shall be imposed. official care thereof.
When is it Deemed Consummated?

ELEMENTS
The crime of removal of public document in breach of official
trust is consummated upon its removal or secreting away
2. That he abstracts, destroys, or conceals documents or
from its usual place in the office and after the offender had
papers.
gone out and locked the door, it being immaterial whether he
3. That the said document or papers should have been
has or has not actually accomplished the illicit purpose for
entrusted to such officer by reason of his office.
which he removed said document.
4. That damage, whether serious or not, to a third party
or to the public interest should have been caused.
Compare: Destroying or Concealing such Documents or
Papers Does Not Require Proof of Illicit Purpose
The Public Officer Must be Officially Entrusted with Such
The reason for this is that while in the removal of documents,
Documents or Papers
the accused may have a lawful or commendable motive, in
Only public officers who have been officially entrusted with the
destroying or concealing them, the offender could not have
documents or papers can be held liable under Art. 226, it must
good motive. Need not accompanied with illicit purpose.
be entrusted to him by virtue of his official position. Thus,
the stenographer who removes or destroys the record of a case
NOTE: Delivering the document to the wrong party is infidelity
kept by the clerk of court is not guilty of a violation of Art. 226,
in the custody of documents.
because the stenographer is not officially entrusted with the
record. The public officer who is officially entrusted with the
Element of Damage, Great or Small
record is the clerk of court.
The fourth element exists when: (ALL ACTS WITH DAMAGE)
1. Whenever serious damage is caused thereby to a
NOTE: It must be a document that establishes a right or
third party or to the public interest.
obligation which must be extinguish, thus a payroll that was not
2. Whenever the damage caused to the third party or to
yet approved is not considered a violation of Article 226. It
the public interest is not serious.
includes papers, thus a post office official who retained mail
without forwarding letters to their destination is guilty of
Damage in this article may consist in mere alarm to the public
infidelity in the custody of papers.
or in the alienation of its confidence in any branch of the
government service. Thus, an employee of the Bureau of Posts
ACTS PUNISHABLE
who returned the money bills which he had stolen after opening
1. By removing, or
the letters, to avoid prosecution, it was held that although there
2. By destroying, or
was no damage caused to third parties (owners) there was
3. By concealing, documents or papers officially
damage to the public interest caused by the accused. He was
entrusted to the offending public officer.
convicted of infidelity in the custody of documents.
ARTICLE 227. Officer breaking seal – Any public officer Section Three. – Revelation of Secrets
charged with the custody of papers or property sealed by
proper authority, who shall break the seals or permit them to ARTICLE 229. Revelation of secrets by an officer. – Any
be broken, shall suffer the penalties of prision correccional in public officer who shall reveal any secret known to him by
its minimum and medium periods, temporary special reason of his official capacity, оr shall wrongfully deliver
disqualification and a fine not exceeding Four hundred papers or copies of papers of which he may have charge and
thousand pesos (P400,000). which should not be published, shall suffer the penalties of
prisión correccional in its medium and maximum periods,
ELEMENTS perpetual special disqualification and a fine not exceeding
Four hundred thousand pesos (₱400,000) if the revelation of
1. That the offender is a public officer
such secrets or the delivery of such papers shall have caused
2. That he is charged with the custody of papers or serious damage to the public interest; otherwise, the
property. penalties of prisión correccional in its minimum period,
3. That these papers or property are sealed by proper temporary special disqualification and a fine not exceeding
authority. One hundred thousand (₱100,000) pesos shall be imposed.
4. That he breaks the seals or permits them to be broken.
ACTS PUNISHABLE UNDER ARTICLE 229
Crime is Committed by Breaking or 1. By revealing secrets known to the offending public
Permitting Seals to be Broken (MERE BREAKING OF SEAL ENOUGH) officer by reason of his official capacity.
It is the breaking of seals, not the opening of a closed 2. By delivering wrongfully papers or copies of papers
envelope, which is punished under this article. The opening of which he may have charge, and which should not be
public papers by breaking seals should be done only by the published.
proper authority. Hence, public officer liable under this article
must be one who breaks seals without authority to do so. Elements of No. 1:
1. That the offender is public officer.
NOTE: Damager or intent to cause damage is not necessary 2. That he knows of a secret by reason of his official
because the purpose of this article is to insure preservation capacity.
thus the mere breaking of seal even if contents are not 3. That the reveals such secret without authority or
tampered is considered to be a violation of Article 227. justifiable reasons.
4. That damage, great or small, be caused to the public
ARTICLE 228. Opening of closed documents – Any public interest.
officer not included in the provisions of the next preceding
article who, without proper authority, shall open or shall NOTE: The secrets must affect public interest, if it does not
permit to be opened any closed papers, documents or objects affect public interest, the revelation would constitute no crime
entrusted to his custody, shall suffer the penalties of arresto
at all. Espionage is not included because Article 117 punishes
mayor, temporary special disqualification and a fine not
exceeding Four hundred thousand pesos (₱400,000). such revelation of information. Secrets of private persons are
not included in this article (check Article 230).
ELEMENTS Elements of No. 2:

1. That the offender is a public officer. 1. That the offender is a public officer.
2. That any closed papers, documents, or objects are 2. That he has charge of papers.
entrusted to his custody. 3. That those papers should not be published.
3. That he opens or permits to be opened said closed 4. That he delivers those papers or copies thereof to the
papers, documents or objects. third person.
4. That he does not have proper authority. 5. That the delivery is wrongful.
6. That damage be caused to public interest.
NOTE: The closed documents must be entrusted to the custody
of the accused by reason of his office. (YOU MUST OPEN) Difference from Article 226 on Infidelity in the Document
or Papers by Removing the Same
The Act Should Not Fall Under Article 227 If the papers contain secrets and therefore should not be
What would be the offense committed if, in opening closed published, and the public officer having charge thereof
papers or object, the public officer broke the seal? removes and delivers them wrongfully to a third person, the
crime is revelation of secrets by a public officer. If the papers
The offense would be breaking seal, and not the crime of do not contain secrets, their removal for an illicit purpose is
opening a closed document, because the offender must be a infidelity in the custody of documents.
public officer "not included in the provisions of the next
preceding article." NOTE: This article provides a higher penalty, if the act "shall
have caused serious damage to the public interest; otherwise,"
NOTE: Damage or intent to cause damage not necessary. a lesser penalty is imposed.
ARTICLE 230. Public officer revealing secrets of private ARTICLE 232. Disobedience to the order of superior
individual. – Any public officer to whom the secrets of any officer, when said order was suspended by inferior officer.
private individual shall become known by reason of his office – Any public officer who, having for any reason suspended the
who shall reveal such secrets, shall suffer the penalties of execution of the orders of his superiors, shall disobey such
arresto mayor and a fine not exceeding Two hundred superiors after the latter have disapproved the suspension,
thousand pesos (₱200,000). shall suffer the penalties of prision correccional in its
minimum and medium periods and perpetual special
disqualification.
ELEMENTS
2. That he knows of the secrets of a private individual ELEMENTS
by reason of his office. 1. That the offender is a public officer.
3. That he reveals such secrets without authority or 2. Than an order is issued by his superior for execution.
justifiable reason. 3. That he has for any reason suspended the execution of
such order.
NOTE: Revelation to one person is sufficient, for public 4. That his superior disapproves the suspension of the
revelation is not required. execution of the order.
5. That the offender disobeys his superior despite the
However, when the offender is an attorney-at-law or solicitor execution of the order.
this Article does not apply, what applies is Article 209 if it was
given in his professional capacity. Reason for the Provision (ONLY AFTER DISAPPROVAL)
The law has taken into account that a superior officer may
NOTE: Damage to private individuals is not necessary. The sometimes err, and that orders issued by him may proceed from
reason for this provision is to uphold faith and trust in public a mistaken judgment. For this reason, it entitles a subordinate
service as such. to suspend in such cases the order issued, to submit his reason
to his superior in order that the latter may give them proper
CHAPTER SIX weight, if they are entitled to any. So far there is no crime.
OTHER OFFENSES OR IRREGULARITIES
BY PUBLIC OFFICERS But if the superior disapproves the suspension of his order and
reiterates it to his subordinate, the latter must obey it at once
Section One. – Disobedience, refusal of assistance, and and refusal to do so constitutes contempt, for by his resistance
maltreatment of prisoners and refusal to do so, he undertakes to dictate to his superior.
NOTE: If order of superior was illegal, then the subordinate has

ARTICLE 231. Open disobedience. – Any judicial or
a legal right to refuse to execute such order, for under the law,
executive officer who shall openly refuse to execute the
judgment, decision or order of any superior authority made obedience to an order which is illegal is not justified (Article 11).
within the scope of the jurisdiction of the latter and issue with
all the legal formalities, shall suffer the penalties of arresto ARTICLE 233. Refusal of assistance. – The penalties of
mayor in its medium period to prisión correccional in its arresto mayor in tits medium period to prisión correccional in
minimum period, temporary special disqualification in its its minimum period, perpetual special disqualification and a
maximum period and a fine not exceeding Two hundred fine not exceeding Two hundred thousand pesos (₱200,000),
thousand pesos (₱200,000). shall be imposed upon a public officer who, upon demand
from competent authority, shall fail to lend his cooperation
ELEMENTS towards the administration of justice or other public service,
if such failure shall result in serious damage to the public
1. That the offender is a judicial or executive officer.
interest, or to a third party; otherwise, arresto mayor in its
2. That there is a judgment, decision or order of a medium and maximum periods and a fine not exceeding One
superior authority. (ORDER MUST BE LAWFUL) hundred thousand pesos (₱100,000) shall be imposed.
3. That such judgment, decision or order was made
within the scope of the jurisdiction of the superior
ELEMENTS
authority and issued with all the legal formalities.
4. That the offender without any legal justification
2. That a competent authority demands from the
openly refuses to execute said judgment, decision or
offender that he lend his cooperation towards the
order, which he is duty bound to obey.
administration of justice or other public service.
3. That the offender fails to do so maliciously. (NO LEGAL
Act Constituting the Crime
GROUND OR JUSTIFICATION)
Open disobedience is committed by any judicial or executive
officer who shall openly refuse to execute the judgment,
Damage to Public Interest, Essential
decision, or order of any superior authority. Thus, when a
Yes, there must be damage to public interest third party, great
mandamus is given to the lower court to receive evidence, an
or small. If the failure results in "serious damage to the public
open refusal constitutes a violation of this article.
interest or to a third party," the penalty is higher.
ARTICLE 234. Refusal to discharge elective office. – The Section Two. – Anticipation, Prolongation, and
penalty of arresto mayor or a fine not exceeding Two hundred Abandonment of the Duties and Powers of Public Office
thousand pesos (₱200,000), or both, shall be imposed upon
any person who, having been elected by popular election to a ARTICLE 236. Anticipation of duties of a public office. – Any
public office, shall refuse without legal motive to be sworn in person who shall assume the performance of the duties and
or to discharge the duties of said office. powers of any public or employment without first being
sworn in or having given the bond required by law, shall be
ELEMENTS suspended from such office or employment until he shall
1. That the offender is elected by popular election to a have complied with the respective formalities and shall be
fined from Forty thousand pesos (₱40,000) to One hundred
public office.
thousand pesos (₱100,000).
2. That he refuses to be sworn in or to discharge the
duties of said office. (UPON VALID ELECTION THERETO)
3. That there is no legal motive for such refusal to be ELEMENTS (Those who are excited)
sworn in or to discharge the duties of said office. 1. That the offender is entitled to hold a public office or
employment, either by election or appointment.
NOTE: This does not apply to appointive officers. Even if you 2. That the law requires that he should first be sworn in
think you are disqualified, it is for court to decide, you must not and/or should first give a bond.
refuse the choice of the electorate. 3. That he assumes the performance of the duties and
powers of such office.
4. That he has not taken his oath and/or given the
ARTICLE 235. Maltreatment of prisoners. – The penalty of
bond required by law.
prisión correccional in its medium period to prisión mayor in
its minimum period, in addition to his liability for the physical
injuries or damage caused, shall be imposed upon any public ARTICLE 237. Prolonging performance of duties and
officer or employee who shall overdo himself in the powers. – Any public officer who shall continue to exercise
correction or handling of a prisoner or detention prisoner the duties and powers of his office, employment or
under his charge, by the imposition of punishments not commission, beyond the period provided by law, regulation
authorized by the regulations, or by inflicting such or special provisions applicable to the case, shall suffer the
punishments in a cruel and humiliating manner. penalties prisión correccional in its minimum period, special
temporary disqualification in its minimum period and a fine
If the purpose of the maltreatment is to extort a confession, not exceeding One hundred thousand pesos (₱100,000).
or to obtain some information from the prisoner, the offender
shall be punished by prisión mayor in its minimum period,
temporary special disqualification and a fine not exceeding ELEMENTS (Those who cannot move on)
One hundred thousand pesos (₱100,000), in addition to his 1. That the offender is holding a public office.
liability for the physical injuries or damage. 2. That the period provided by law, regulations or special
provision for holding office had already expired.
ELEMENTS 3. He continues to exercise duties and powers of office.
1. That the offender is a public officer or employee.
2. That he has under his charge a prisoner or detention ARTICLE 238. Abandonment of office or position. – Any
prisoner. public officer who, before the acceptance of his resignation,
3. That he maltreats such prison in either of the following shall abandon his office to the detriment of the public service
manners: shall suffer the penalty of arresto mayor.
a) By overdoing himself in the correction or
If such office shall have been abandoned in order to evade the
handling of a prisoner or detention prisoner discharge of the duties of preventing, prosecuting or
under his charge either – punishing any of the crimes falling within Title One, and
1) By the imposition of punishments Chapter One of the Title Three of Book Two of this Code, the
not authorized by the regulations, offender shall be punished by prision correccional in its
2) By inflicting such punishment minimum and medium periods, and by arresto mayor if the
(those authorized) in a cruel and purpose of such abandonment is to evade the duty of
preventing, prosecuting or punishing any other crime.
humiliating manner.
4. By maltreating such prisoner to extort a confession or ELEMENTS

to obtain some information from the prisoner. 1. That the offender is a public officer.
2. That he formally resigns from his position.
The Public Officer Must Have Actual Charge of the Prisoner 3. That his resignation has not yet been accepted.
to Hold Him Liable for Maltreatment 4. That he abandons his office to the detriment of the
Thus, a mayor was not held liable when it was not shown that public service.
he was under the charge of the maltreated prisoners. It was not
charge of Mayor of Tiaong. Hence, one of essential elements of NOTE: There must be a written or formal resignation. The effect
the charge under Article 235 was lacking (Punzalan v. People). takes place only upon approval of resignation.
When is Offense Qualified? ARTICLE 241. Usurpation of judicial functions. – Any

Title One, and Chapter One of Title Three of Book Two of this private person to whom the conveyance or custody of a
Code" refer to the crimes of (1) treason, (2) conspiracy and prisoner or person under arrest shall have been confided,
proposal to commit treason, (3) misprision of treason, (4) who shall commit any of the offenses mentioned in the two
espionage, (5) inciting to war or giving motives for reprisal, (6) preceding articles, shall suffer the penalty next lower in
violation of neutrality, (7) correspondence with hostile country, degree than that prescribed for the public officer.
(8) flight to enemy country, (9) piracy and mutiny, (10) rebellion,
(11) coup d'etat, (12) conspiracy and proposal to commit coup ELEMENTS
d'etat or rebellion, (13) disloyalty of public officers, (14) inciting 1. That the offender is an officer of the executive branch
to rebellion, (15) sedition, (16) conspiracy to commit sedition, of the government.
and (17) inciting to sedition. PMmin-med to PMmin 2. That he (a) assumes judicial powers, or (b) obstructs
the execution of any order or decision rendered by
Abandonment of Office Negligence and Tolerance any judge within his jurisdiction.
(Article 238) (Article 208)
It is committed by any Committed only by public NOTE: Mayor can be made guilty if he investigates a case while
public officer. officers who have the duty the justice of the peace is in the municipality.
to institute prosecution for
the punishment of Article 239-241 Punish Interference by Officers of One of
violations of the law. the Three Departments of Government with Function of
The public officer abandons The public officer does not Officers of Another Department
his office to evade the abandon his office, but he Arts. 239-241 punish interference by the officers of one of the
discharge of his duty. fails to prosecute an offense three departments of the government (legislative, executive
by dereliction of duty or by and judicial) with the functions of the officers of another
malicious tolerance of the department, if it is within department it falls under Article 171.
commission of offenses.
The purpose is to maintain the separation and independence of
Section Three. – Usurpation of Powers and the three departments of the government and to keep the three
Unlawful Appointments branches within the legitimate confines of their respective
jurisdictions and the officers thereof within the scope of their
lawful authority.
ARTICLE 239. Usurpation of legislative powers. – The
penalties of prisión correccional in its minimum period,
temporary special disqualification and a fine not exceeding ARTICLE 242. Disobeying request for disqualification. –
Two hundred thousand pesos (₱200,000), shall be imposed Any public officer who, before the question of jurisdiction is
upon any public officer who shall encroach upon the powers decided, shall continue any proceeding after having been
of the legislative branch of the Government, either by making lawfully required to refrain from so doing, shall be punished
general rules or regulations beyond the scope of his by arresto mayor and a fine not exceeding One hundred
authority, or by attempting to repeal a law or suspending the thousand pesos (₱100,000).
execution thereof.
ELEMENTS
ELEMENTS 1. That the offender is a public officer.
1. That the offender is an executive or judicial officer. 2. That a proceeding is pending before such public
2. That he (a) makes general rules or regulations beyond officer.
the scope of his authority, or (b) attempts to repeal a 3. That there is a question brought before the proper
law or (c) suspends the execution thereof. authority regarding his jurisdiction, which is not yet
decided.
ARTICLE 240. Usurpation of executive functions. – Any 4. That he has been lawfully required to refrain from
judge who shall assume any power pertaining to the continuing the proceeding.
executive authorities, or shall obstruct the latter in the lawful 5. That he continues proceeding.
exercise of their powers, shall suffer the penalty of arresto
mayor in its medium period to prision correccional in its Illustration: Mayor of Manila suspended a market
minimum period. administrator for alleged irregularity. He caused administrative
investigation of the market administrator. The latter filed a
ELEMENTS petition for prohibition in the Court of First Instance which
1. That the offender is a judge. issued a preliminary writ of injunction pending the resolution
2. That he (a) assumes a power pertaining to the of the question of jurisdiction raised by the petitioner. But the
executive authorities or (b) obstructs in the lawful Mayor continued the investigation. In this case, the Mayor may
exercise of their powers. be held liable under this article. The disobedient public officer
NOTE: Legislative officers not liable under 240 but 177, because is liable, even if the jurisdictional question is resolved by the
they were the ones who framed the law. 171 applies. proper authority in his favor.
ARTICLE 243. Orders or requests by executive officers to The public officer takes advantage of a woman, the victim here
any judicial authority. – Any executive officer who shall is exclusively a woman. Mere solicitation, mere demand,
address any order or suggestion to any judicial authority with request of any sexual favor is sufficient to consummate 245 (1).
respect to any case or business coming within the exclusive
jurisdiction of the courts of justice shall suffer the penalty of WAYS COMMITTING ABUSES AGAINST CHASTITY
arresto mayor and a fine not exceeding One hundred 1) By soliciting or making immoral or indecent advances
thousand pesos (₱100,000).
to a woman interested in matters pending before the
offending officer for decision, or with respect to which
ELEMENTS he is required to submit a report to or consult with a
1. That the offender is an executive officer. superior officer.
2. That he addresses any order or suggestion to any 2) By soliciting or making immoral or indecent advances
judicial authority. to a woman under the offender's custody.
3. That the order or suggestion relates to any case or 3) By soliciting or making immoral or indecent advances
business coming within the exclusive jurisdiction of to the wife, daughter, sister or relative within the same
the courts of justice. degree by affinity of any person in the custody of the
offending warden or officer.
NOTE: Legislative or judicial officers are not liable under 243.
ELEMENTS OF THE OFFENSE
ARTICLE 244. Unlawful appointments. – Any public officer 1. The offender is a public officer.
who shall knowingly nominate or appoint to any public office 2. That he solicits or makes immoral and indecent
any person lacking the legal qualifications therefor, shall advances to a woman.
suffer the penalty of arresto mayor and a fine not exceeding 3. That such woman must be –
Two hundred thousand pesos (₱200,000). a) Interested in matters pending before the
offender for decision, or with respect to
ELEMENTS which he is required to submit a report to or
1. That the offender is a public officer. consult with a superior officer; or
2. That he nominates or appoints a person to a public b) Under the custody of the offender who is a
officer. warden or other public officer directly
3. That such person lacks the legal qualifications charged with the care and custody of
therefor. prisoners or persons under arrest; or
4. That the offender knows that his nominee or c) The wife, daughter, sister or relative within
appointee lacks the qualifications at the time he made the same degree by affinity of the person in
the nomination or appointment. the custody of the offender.
Section Four. – Abuses against Chastity NOTE: The mother of the person in the custody of the offender
is not included.
ARTICLE 245. Abuses against chastity – Penalties. – The
penalties of prision correccional in its medium and maximum The Crime of Abuses Against Chastity is
periods and temporary special disqualification shall be Consummated by Mere Proposal
imposed: This crime is consummated by mere proposal, because it is
1) Upon any public officer who shall solicit or make sufficient that there is soliciting or making immoral or indecent
immoral or indecent advances to a woman advances to the woman. It is not necessary that the woman
interested in matters pending before such officer solicited should have yielded to the solicitation of the offender.
for decision, or with respect to which he is required
to submit a report to or consult with a superior
officer; Proof of Solicitation is Not Necessary
2) Any warden or other public officer directly charged When there is Sexual Intercourse
with the care and custody of prisoners or persons The appellant was in charge of the prisoners, among them a
under arrest who shall solicit or make immoral or woman, in the Tondo police station. He entered the cell of the
indecent advances to a woman under his custody. woman and had illicit relations with her. The appellant argues
that the proof fails to show that he solicited a woman in his
If the person solicited be the wife, the daughter, sister or
custody.
relative within the same degree by affinity of any person in
the custody of such warden or officer, the penalties shall be
prision correccional in its minimum and medium periods and It was proven, however, that his illicit relations were
temporary special disqualification consummated. It would be a strange interpretation to place
upon said law, that a failure in the proof to show a "solicitation"
was sufficient to relieve the defendant from responsibility, when
NOTE: The term solicit means to propose earnestly and
the act solicited was consummated.
persistently something unchaste and immoral to a woman. It
must be immoral or indecent advances.
CASE OF REYES: No usurpation of judicial function.
CASES FOR TITLE VII not convincing. It is belied by his proven acts. The implausibility of his
promises does not mean they were not made or that they did not appear
to be credible, coming as they did from one with his long experience in
DACUMOS v. SANDIGANBAYAN (1991) 195 SCRA 833
the BIR and appeared to know his way around. The Court finds it
especially remarkable that he met Samia at a private place instead of
SUMMARY: Dacumos offered Samia (manager of Revilla Interiors) his office at the BIR, considering that they were supposed to be
a tax clearance in exchange of monetary consideration. The latter discussing official business and it was Samia who he says was
pretended to go along with it leading to the arrest of Dacumos requesting his assistance.
during an entrapment operation by the NBI. The SC affirmed the
decision of conviction of the Sandiganbayan stating that the It was within the discretion of the respondent court to weigh the
petitioner failed to support his claims with substantial evidence. evidence of the parties and to admit such of it as it regarded as credible
and reject those that it considered perjurious or fabricated. Every trial
DOCTRINE: Elements of direct bribery: (1) that the accused is a court must have that leeway. If the Sandiganbayan chose to believe
public officer; (2) that he received directly or through another some Samia and not the petitioner or Exhibit F-1, the NBI report, rather than
gift or present, offer or promise; (3) that such gift, present or Exhibit 5, the petitioner's alleged assessment report, this would not
promise has been given in consideration of his commission of some necessarily prove that its decision was biased and arbitrary.
crime, or any act not constituting a crime, or to refrain from doing
something which it is his official duty to do, and (4) that the crime The Court is not inclined to believe that Samia would be so vindictive
or act relates to the exercise of his functions as a public officer. The as to falsely incriminate the petitioner with the serious charge of bribery
promise of a public officer to perform an act or to refrain from doing simply because the petitioner refused to reduce the tax assessment of
it may be express or implied. R. Revilla Interiors.
Facts: Petitioner Alfonso Dacumos, a revenue examiner of the BIR San Samia was not even directly involved in that assessment. As for Exhibit
Pablo, offered to settle the tax liablity of R. Revilla Interiors in the 5, the respondent court cannot be faulted for not accepting it in the
amount of P73,307.31 by pulling out its assessment papers from the absence of corroboration that the petitioner actually filed it only on
office of the BIR Commissioner and procuring a tax clearance. October 17, 1986 (to show that he could not have offered to reduce the
assessment of the taxpayer company earlier in September, as alleged).
For such service, he would require a fee of P35,000 (later reduced to
P30,000). Gregorio Samia, the manager of the firm, pretended to go On the other hand, the technical report on the test conducted by the
along with him but reported the matter to the NBI which arranged an NBI for fluorescent powder on the petitioner's hands invited easy
entrapment. This was effected on October 28, 1986, near the Rizal Cafe acceptance.
in Makati. Samia, meeting with the petitioner there, told him he had
only P1,000.00 then but would deliver P9,000.00 to him that same While protesting his innocence, the petitioner has failed to rebut the
evening at his residence and pay the balance of P20,000.00 in evidence of the prosecution that has sufficiently established his guilt
November. The petitioner wrote his address on the back of a receipt, and shifted the burden of proof to him. He has not discharged that
which he gave Samia. burden by just contending that the decision is based on "speculations,
conjectures and assumptions" and that the conclusions drawn
Samia tendered the white envelope containing P1,000.00 previously therefrom are "mistaken, absurd and fallacious."
dusted with fluorescent powder, but the petitioner accepted it only
when they had left the eatery and he was nearing his car outside. He The thrust of his defense is that the respondent court should have
put the envelope in his pocket. The NBI agents closed in, identified believed him instead of the People, but he has not convinced us that
themselves, and placed him under arrest. The petitioner's reaction was the trial court has erred.
to draw out the envelope and throw it on the ground. One of the agents
retrieved it. At the NBI headquarters, the petitioner's hands were found In short, he has failed to prove, in this petition for certiorari where only
positive for fluorescent powder, as so were the envelope itself and the questions of law may be raised, that he is entitled to a reversal of his
bills inside. conviction. The petitioner seems to be suggesting in the conclusion to
his petition that judgment was rendered against him because he
The petitioner claims the charges against him were fabricated. He happens to be a tax collector, whom he says "history, even from Biblical
argues inter alia that he could not have promised to remove the times, depicts ... as the most unpopular and vilified adjunct of any
assessment papers from the Commissioner's office as he had no access society."
to that place; that at the time of his supposed offer the tax liability of the
firm had not yet been ascertained and that in any case the percentage The plea does not persuade. It suffices to observe that he was convicted
tax imposed on it was mandatory and not subject to adjustment. He not because he is a tax collector but because he accepted a bribe. We
stresses that as a tax examiner with 29 years’ service he would not have find, on the basis of the evidence of record, that the constitutional
been "so crude and so rash" as to demand money from Samia whom presumption of innocence has been overcome and that the guilt of the
he barely knew. He said he had met Samia at the Rizal Cafe only petitioner has been established beyond reasonable doubt.
because the latter was "irritatingly insistent" on securing his help ACCORDINGLY, the assailed decision is AFFIRMED, and the petition
regarding the firm's tax amnesty. It was Samia who had urged the DENIED, with costs against the petitioner.
envelope on him, but he had rejected it twice, first when they were at
the restaurant and later when they were outside. He also faults the
respondent court for misappreciation the evidence and for obvious bias
in favor of the prosecution.
The issues he raises are mainly factual. The petitioner has not shown
that the findings thereon of the respondent court are tainted with
arbitrariness or are not supported by substantial evidence. His charge
that he was "framed" because Samia resented his refusal to be bribed is
MEJORADA v. SANDIGANBAYAN (1991) 151 SCRA 399 value exactly the same as that stated in the Agreements to Demolish as
per assessor”, except the claims of De la Cruz and Aran where there is
Facts: This petition seeks to reverse the May 23, 1979 decision of only a difference of P400.00 and P200.00, respectively. It turned out,
Sandiganbayan finding Arturo Mejorada guilty beyond reasonable however, that said Declarations of Property are not really intended
doubt of violating Section 3(e) of RA 3019. Eight informations were for the claimants as they were registered in the names of other
filed against the petitioner alleging substantially the same facts: persons, thus showing that they were all falsified.
INFORMATION: That in (sic) or about and during the period A few months after processing the claims, accused accompanied the
comprised from October 1977 to February 1978, in the municipality claimants to the Office of the Highway District Engineer at the provincial
of Pasig, Metro Manila, Philippines and within the jurisdiction of this capitol of Pasig, Metro Manila, to receive payments and personally
Honorable Court, the above-named accused, being employed in the assisted the claimants in signing the vouchers and encashing the checks
Office of the Highway District Engineer, Pasig, Metro Manila, as by certifying as to their identities and guaranteeing payment.
Right-of-Way Agent conspiring and confederating together with
two (2) other John Does whose true identities and present Right after the claimants had received the proceeds of their checks,
whereabouts are still unknown, with evident bad faith, and for accused accompanied them to his car which was parked nearby where
personal gain, did then and there wilfully, unlawfully and feloniously, they were divested of the amounts paid to them leaving only the
directly intervene, work for, and facilitate the approval of one Isagani sum of P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was
de Leon’s claim for the payment in the removal and reconstruction left, explaining to them that there were many who would share in said
of his house and a part of his land expropriated by the government amounts. All the claimants were helpless to complaint because they
having been affected by the proposed Pasig-Sta Cruz-Calamba were afraid of the accused and his armed companion. The claimants,
Road. 2nd IBRD Project at Binangonan, Rizal, while the accused, through the assistance of counsel, filed their complaints with the
Arturo A. Mejorada is in the discharge of his official and/or Provincial Fiscal’s Office of Pasig, Metro Manila, narrating in their
administrative functions and after said claim was approved and the supporting sworn statements what they later testified to in court.
corresponding PNB Check No. SN 5625748 was issued and
encashed in the amount of P7,200.00 given only P1,000.00 to Issue 1:
claimant (Isagani de Leon), appropriating, applying and converting Whether or not the essential elements constituting the offense penalized
to themselves the amount of P6,200.00, thereby causing damage by Section 3(e) of RA 3019 have been clearly and convincingly proven
and prejudice to Isagani de Leon and the government in the by the prosecution.
aforementioned amount of P6,200.00. Contrary to law.
Section 3(e) of RA 3019
Arturo Mejorada was a public officer who was first employed as a Corrupt practices of public officers. —In addition to acts or omissions
temporary skilled laborer in the Bureau of Public Works on 1947, and of public officers already penalized by existing law, the following shall
then as a right-of-way agent in the Office of the Highway District constitute corrupt practices of any public officer and are hereby
Engineer, Pasig, Metro Manila, from February 1974 to December 1978. declared to be unlawful.
As a right-of-way agent, his main duty was to negotiate with property (e) Causing any undue injury to any party, including the
owners affected by highway construction or improvements for Government, or giving any private party any unwarranted
compensating them for damages incurred by said owners. benefits, advantage or preference in the discharge of his
official administrative or judicial functions through manifest
Among those whose lots and improvements were affected by the partiality, evident bad faith or gross inexcusable negligence.
widening of the proposed Pasig – Sta. Cruz Calamba Road, 2nd IBRD This provision shall apply to officers and employees of offices
Project at Binangonan Rizal were Isagani de Leon, Isaac Carlos, or government corporations charged with the grant of
Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano licenses or permits or other concessions.
Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog,
Binangonan, Rizal. Elements as enumerated by the petitioner to constitute a
violation of Section 3(e) of RA 3019
Sometime in October or November 1977, Mejorada contacted the
aforenamed persons and informed that he could work out their claims 1. That the accused must be a public officer charged with the duty
for payment of the values of their lots and/or improvements affected of granting licenses or permits or other concessions.
by the widening of said highway. In the process, Mejorada required
claiming to sign blank copies of the Sworn Statement on the Correct CONTENTION: Petitioner contends that inasmuch as he is not charged
and Fair Market Value of Real Properties and Agreement to with the duty of granting licenses, permits or other concessions, then
Demolish, Remove and Reconstruct Improvements pertinent to he is not the officer contemplated by Section 3 (e).
their claims. The claimants complied without bothering to find out what
the documents were all about as they were only interest in the payment COURT REPLY: Section 3 cited enumerates in eleven subsections the
of damages. corrupt practices of any public officers declared unlawful. Its reference
to the term public officer is without distinction or qualification and it
In said “Sworn Statements” and “Agreements to Demolish”, the value specifies the acts declared unlawful.
of the respective properties of the claimants were made to appear
very much higher than the actual value claimed by them. Likewise, The last sentence of the paragraph (e) is intended to make clear the
the said “Agreements to Demolish” reflected the value of the inclusion of officers and employees of officers or government
improvements “as per assessor” which on the average was only corporation which, under the ordinary concept of “public offices” may
P2,000.00 lower than the value declared by the owners in their sworn not come within the term. It is a strained construction of the of the
statements. provision to read it as applying only to public officers charged with the
duty of granting licenses or permits or others concession.
The value as per assessor was, in turn, supported by the Declarations of
Real Property in the names of the claimants containing an assessed RULE: The first element is present as alleged by the information.
2. That such public officer caused undue injury to any party, Issue 3:
including the Government, or gave any private party unwarranted Whether or not the penalty imposed upon the petitioner is excessive
benefits, advantage or preference in the discharge of his official and contrary to the three-fold rule as provided for by Article 70 of the
administrative or judicial functions. Revised Penal Code
CONTENTION: Petitioner denies that there was injury or damage caused CONTENTION: The third issue raised by the petitioner concerns the
the Government because the payments were allegedly made on the penalty imposed by the Sandiganbayan which totals fifty-six (56) years
basis of a document solely made by the Highway District Engineer to and eight (8) days of imprisonment. Petitioner impugns this as contrary
which petitioner had no hand in preparing. to the three-fold rule and insists that the duration of the aggregate
penalties should not exceed forty (40) years.
COURT REPLY: The fact, however, is that the government suffered undue
injury as a result of the petitioner having inflated the true claims of COURT REPLY: The petitioner is mistaken in his application of the three-
complainants which became the basis of the report submitted by the fold rule as set forth in Article 70 of the Revised Penal Code. This article
Highway District Engineer to the Regional Director of Department of is to be taken into account not in the imposition of the penalty but in
Highways and which eventually became the basis of payment. connection with the service of the sentence imposed.
Mejorada’s contention that he had no participation is belied by the fact Article 70 speaks of “service” of sentence, “duration” of penalty and
that as a right-of-way agent, his duty was precisely to negotiate with penalty “to be inflicted”. Nowhere in the article is anything mentioned
property owners who are affected by highway constructions for the about the “imposition of penalty”.
purpose of compensating them.
It merely provides that the prisoner cannot be made to serve more than
The complainants were also deprived of just compensation to which three times the most severe of these penalties the maximum of which
they were entitled because they were divested of a large proportion of is forty years. The Sandiganbayan, therefore, did not commit any error
their claims and receiving in an amount to even lower than the actual in imposing eight penalties for the eight informations filed against the
damage they incurred. accused-petitioner.
3. The injury to any party, or giving any private party any RULE: In the light of the above reasons, petitioner cannot assail the
unwarranted benefits, advantage or preference was done through penalty imposed upon him as harsh, cruel and unusual.
manifest, partiality, evident bad faith or gross inexcusable
negligence. HELD: Wherefore the petition to appeal the ruling of Sandiganbayan is
hereby denied for lack of merit.
CONTENTION: Mejorada argues that for the third element to be present,
the alleged injury or damage to the complainants and the government
must have been caused by the public officer in the discharge of his
official, administrative or judicial functions and inasmuch as when the
damage was caused to the complainants, he was no longer discharging
his official administrative functions, therefore, he is not liable for the
offense charged.
COURT REPLY: This argument is devoid of merit. The Sandiganbayan

established the fact that Mejorada took advantage of his position as
a right-of-way agent by making the claimants sign the agreements to
demolish and sworn statements which contained falsified
declarations of the value of the improvements and lots. There was
evident bad faith on the part of the petitioner when he inflated the
values of the true claims and when he divested the claimants of a large
share of the amounts due them.
Issue 2:
Whether or not Mejorada cannot be convicted of Section 3(e) of RA
3019 because the evidence adduced by the prosecution is for the crime
of robbery than Section 3(e).
COURT RULE: We find no variance between the offense charged in the

information and the offense proved. The prosecution was able to
establish through corroborating testimonies of the witnesses present
how evident bad faith, petitioner caused damage to the claimants and
the Governments.
The manner by which the petitioner divested the private parties of the
compensation they receive was part of the scheme which commenced
when the petitioner approached the claimants and informed them that
he could work out their claims for payment of the values of their lots
and/or improvements affected by the widening and such, the evidence
presented by the prosecution clearly establish a violation of Section 3(e)
of RA 3019.
SANTIAGO v. GARCHITORENA (1993) 228 SCRA 214 departure order against petitioner. Benigno wrote that said order
reflected a “perverse morality” of the Sandiganbayan and the lack of
Facts: On May 1, 1991, Miriam-Defensor Santiago was charged with “legal morality” of its Presiding Justice, thus:
violation of Section 3(e) of RA 3019 allegedly committed by her favoring
“I cannot, for example accept the legal morality of Sandiganbayan Justice
“unqualified” aliens with the benefits of Alien Legalization Program.
Francis Garchitorena who would stop Miriam Defensor Santiago from going
abroad for a Harvard scholarship because of graft charges against her. Some
Santiago filed for prohibition to enjoin the SB from proceeding with the of the most perfidious Filipinos I know have come and gone, left and
criminal case on the ground that it was to harass her as she was then returned to these shores without Mr. Garchitorena kicking any kind of
a presidential candidate. Alleging that such was a violation under rumpus. Compared to the peccadilloes of this country’s outstanding felons,
Article IX-C, Section 10 of the Constitution providing that bonafide what Miriam is accused of is kindergarten stuff. The Sandiganbayan Supremo
candidates shall be free from any form of discrimination. But this got a lot of headlines for stopping Miriam but I contend this is the kind of
petition was dismissed. On October 16 ,1992, Santiago then filed a perverse morality we can do without” (Rollo, p. 156).
motion for inhibition of Judge Garchitorena.

The portion of the letter of Presiding Judge Garchitorena, which
On October 27, 1992, the Sandiganbayan (First Division), of which Santiago finds objectionable, reads as follows:
Presiding Justice Garchitorena is a member, set the criminal case for
“(c) Mrs. Santiago has never informed any court where her cases are pending
arraignment on November 13, 1992 at 8:00 A.M. On November 6, 1992,
of her intention to travel, whether the Regional Trial Court where she is
petitioner moved to defer the arraignment on the grounds that there charged with soliciting donations from people transacting with her office at
was a pending motion for inhibition, and that petitioner intended to file Immigration or before the Sandiganbayan where she is charged with having
a motion for bill of particulars. SB denied motion to defer arraignment. favored unqualified aliens with the benefits of the Alien Legalization Program
nor even the Supreme Court where her petition is still pending” (Rollo, p.
On November 10, 1992, Santiago filed for a motion for a bill of 158).
particulars. The motion stated that while the information alleged that
petitioner had approved the application for legalization of “aliens” and In particular, Santiago considered as prejudgment the statement of
gave them indirect benefits and advantages it lacked a list of the Presiding Justice Garchitorena that petitioner had been charged before
favored aliens. According to petitioner, unless she was furnished with the Sandiganbayan “with having favored unqualified aliens with the
the names and identities of the aliens, she could not properly plead and benefits of the Alien Legalization Program.” The statement complained
prepare for trial. of was just a restatement of the Information filed against petitioner in
Criminal Case No. 16698 in connection with which the hold-departure
The SC however, directed the Sandiganbayan (First Division) to reset order was issued. Said Information specified the act constituting the
the arraignment to a later date and to dispose of the two incidents offense charged, thus:
pending before it. At the hearing on November 13, 1992 on the motion
for a bill of particulars, the prosecution stated categorically that they INFORMATION: “That on or about October 17, 1988, or for
would file only one amended information against petitioner. However, sometime prior or subsequent thereto, in Manila, Philippines, and
on December 8, 1992, the prosecution filed a motion to admit the 32 within the jurisdiction of this Honorable Court, accused Miriam
Amended Informations. Defensor-Santiago, being then the Commissioner of the
Commission on Immigration and Deportation, with evident bad faith
On March 3, 1993, Presiding Justice Garchitorena issued the questioned and manifest partiality, did then and there willfully, unlawfully and
Resolution dated March 11, 1993, denying the motion for his criminally approve the application for legalization of aliens who
disqualification. On March 14, 1993, the Sandiganbayan (First Division) arrived in the Philippines after January 1, 1984 in violation of
promulgated a resolution, admitting the 32 Amended Informations and Executive Order No. 324 dated April 13, 1988 which does not allow
ordering petitioner to post the corresponding bail bonds within ten the legalization of the same, thereby causing undue injury to the
days from notice. Petitioner’s arraignment on the 32 Amended government and giving unwarranted benefits and advantages to
Informations was set for April 12, 1993 at 8:00 A.M. said aliens in the discharge of the official and administrative
functions of said accused” (Rollo, p. 36).
Cease and Desist Order: Acting on the petition for the issuance of a
restraining order, we issued the Resolution dated March 25, 1993, It appears that petitioner tried to leave the country without first
ordering Presiding Justice Garchitorena “to CEASE and DESIST from securing the permission of the Sandiganbayan, prompting it to issue
sitting in the case until the question of his disqualification is finally re the hold-departure order which Benigno viewed as uncalled for. The
solved by this Court and from enforcing the resolution dated March 11, letter of Presiding Justice Garchitorena, written in defense of the dignity
1983, ordering petitioner to post bail bonds for the 32 Amended and integrity of the Sandiganbayan, merely stated that all persons
Informations and from proceedings with the arraignment on April 12, facing criminal charges in court, with no exception, have to secure
1993 permission to leave the country. Nowhere in the letter is the merit of
the charge against petitioner ever touched. Certainly, there would have
IN RE: DISQUALIFICATION OF JUDGE GARCHITORENA been no occasion for the letter had Benigno not written his diatribe,
The petition for the disqualification of Presiding Justice Garchitorena is unfair at that, against the Sandiganbayan. The collegiate character of
based on the publication of his letter in the July 29, 1992 issue of the the Sandiganbayan thus renders baseless petitioner’s fear of prejudice
Philippine Star, which to Santiago “pre-judged” the validity of the and bias on the part of Presiding Justice Garchitorena
information filed against her. Santiago claims that Presiding Justice
Garchitorena “cannot be expected to change the conclusion he has Issue
subconsciously drawn in his public statements x x x when he sits in Whether or not the amended informations did not charge any offense
judgment on the merits of the case. punishable under Section 3(e) of RA 3019.
The letter in question was written in response to an item in Teodoro CONTENTION: Santiago contends the amended information did not
Benigno’s column in the July 22, 1992 issue of the Philippine Star, charge her of any offense punishable under Section 3(e) of RA 3019.
criticizing the Sandiganbayan for issuing on July 11, 1992 a hold-
She claims that the official acts complained of therein were authorized
under Executive Order No. 324 and that the Board of Commissioners of
the Bureau of Investigation adopted the policy of approving applications
for legalization of spouses and unmarried, minor children of “qualified
aliens” even though they had arrived in the Philippines after December
31, 1983. She concludes that the Sandiganbayan erred in not granting
her motion to quash the informations (Rollo, pp. 25-31).
In a motion to quash, Santiago admits hypothetically the allegation of

fact in the information that:
(1) She was a public officer;
(2) She approved the application for legalization of the stay of
aliens, who arrived in the Philippines after January 1, 1984;
(3) Those aliens were disqualified;
(4) She was cognizant of such fact; and
(5) She acted in “evident bad faith and manifest partiality in the
execution of her official functions.
The foregoing allegations of fact constitute the elements of the offense

defined in Section 3 (e) of R.A. No. 3019.
The claims that the acts complained of were indeed authorized under
Executive Order No. 324, that petitioner merely followed in good faith
the policy adopted by the Board of Commissioners and that the aliens
were spouses or unmarried minor children of persons qualified for
legalization of stay, are matters of defense which she can establish at
the trial.
Anent petitioner’s claim that the Amended Informations did not allege
that she had caused “undue injury to any party, including the
Government,” there are two ways of violating Section 3(e) of R.A. No.
3019. These are:
(a) by causing any undue injury to any party, including the
Government; and
(b) by giving any private party any unwarranted benefit,
advantage or preference.
On the Issue of Continued Crime

We find that, technically, there was only one crime that was committed
in petitioner’s case, and hence, there should only be one information to
be filed against her. The 32 Amended Informations charge what is
known as delito continuado or “continued crime” and sometimes
referred to as “continuous crime.”
HELD: Wherefore, the Resolution of not disqualifying Judge

Garchitorena of the inhibition is affirmed but the office of the Special
Prosecutor of the Office of the Ombudsman is directed to consolidate
the 32 Amended Informations (Criminal Cases Nos. 18371 to 18402)
into one information charging only one offense under the original case
number. The TRO is lifted insofar as to the disqualification of Presiding
Justice Francis Garchitorena is concerned.
SISON v. PEOPLE (2010) 614 SCRA 670 Concerning the Toyota Land Cruiser, concerned, the Sandiganbayan
found that the personal canvass was effected solely by petitioner,
Facts: The requirements of the law on government procurements without the participation of the municipal accountant and petitioner’s
should never be taken for granted because grave consequences await co-accused de Jesus, the municipal treasurer. Worse, there was no
those who violate them. – Corona, J. showing that that the award was decided by the Committee on Awards.
Only an abstract of canvass supported the award, signed by petitioner
Petitioner Rolando E. Sison was the municipal mayor of Calintaan, and de Jesus, without the required signatures of the municipal
Occidental Mindoro, a fourth-class municipality, from July 1, 1992 to accountant and budget officer.
June2 30, 1995, while Rigoberto de Jesus was the municipal treasurer.
On July 18, 1994, state auditor Elsa E. Pajayon conducted a post audit RA 7160 requires that requires that where the head of the office or
investigation which revealed that during petitioner’s incumbency, no department requesting the requisition sits in a dual capacity, the
public bidding was conducted for the purchase of a Toyota Land participation of a Sanggunian member (elected from among the
Cruiser, 119 bags of Fortune cement, an electric generator set, members of the Sanggunian) is necessary.
certain construction materials, two Desert Dueler tires, and a
computer and its accessories. Pajayon also found out that there were Petitioner clearly disregarded this requirement because, in all the
irregularities in the documents supporting the acquisitions. purchases made, he signed in a dual capacity—as chairman and
member (representing the head of office for whose use the supplies
Thus, on June 4, 1998, Sison and De Jesus were indicted before the SB were being procured). That is strictly prohibited. None of the regular
in seven separate Informations for seven counts of violation of Section members of the Committee on Awards may sit in a dual capacity. Where
3(e) of RA 3019. On June 24, 1999, petitioner pleaded not guilty to all any of the regular members is the requisitioning party, a special
the Informations. Accused de Jesus has remained at large. member from the Sanggunian is required. The prohibition is meant to
check or prevent conflict of interest as well as to protect the use of the
Trial on the merits ensued. Pajayon was the lone witness for the procurement process and the public funds for irregular or unlawful
prosecution. She narrated the State’s version of the facts as above purchases. The same appeared with the 199 Bags of Fortune Cement,
stated. The prosecution thereafter rested its case and formally offered electric power generator set, two Desert Dueler tires, computer
its exhibits. and its accessories.
When it was the turn of the defense to present evidence, petitioner was Violation of Section 3(e) of RA 3019, Elements
called to the witness stand where he admitted that indeed, no public To be found guilty under said provision, the following elements must
bidding was conducted insofar as the purchases he was being accused concur to be liable:
of were concerned. When asked how the purchases were made, he 1. The offender is a public officer;
answered that they were done through personal canvass. When 2. The act was done in the discharge of the public officer’s
prodded why personal canvass was the method used, he retorted that official, administrative or judicial functions;
no public bidding could be conducted because all the dealers of the 3. The act was done through manifest partiality, evident bad
items were based in Manila. It was therefore useless to invite bidders faith, or gross inexcusable negligence; and
since nobody would bid anyway. 4. The public officer caused any undue injury to any party,
including the Government, or gave any unwarranted benefits,
The defense thereafter rested its case and formally offered its exhibits. advantage or preference.
On November 14, 2005, the Sandiganbayan found petitioner guilty as
charged. As such, he was meted in each Information an imprisonment IN THE CASE: It is undisputed that the first two elements are present in
term ranging from six years and one month as minimum to ten years the case at bar. The only question left is whether the third and fourth
as maximum and perpetual disqualification from holding public office. elements are likewise present. We hold that they are.
The Sandiganbayan also ordered that an alias warrant of arrest be
issued against accused de Jesus. Third Element. This may be committed in three ways through (1)
manifest partiality; (2) evident bad faith, or (3) gross inexcusable
Petitioner appealed to this Court, praying for an acquittal because his negligence. Proof of any of these three in connection with the
guilt was allegedly not proven beyond reasonable doubt. The court prohibited acts mentioned in Section 3(e) of RA 3019 is enough to
dismisses the appeal. convict. Explaining what these terms mean, the Court held:
“Partiality” is synonymous with “bias” which “excites a disposition to see and

Non-Compliance with the Requirements of Personal Canvass
report matters as they are wished for rather than as they are.” “Bad faith does
RA 71607 explicitly provides that, as a rule, “acquisitions of supplies by
not simply connote bad judgment or negligence; it imputes a dishonest
local government units shall be through competitive bidding. By way of purpose or some moral obliquity and conscious doing of a wrong; a breach
exception, no bidding is required in the following instances: of sworn duty through some motive or intent or ill will; it partakes of the
(1) Personal canvass of responsible merchants; nature of fraud.” “Gross negligence has been so defined as negligence
(2) Emergency purchase; characterized by the want of even slight care, acting or omitting to act in a
(3) Negotiated purchase; situation where there is a duty to act, not inadvertently but wilfully and
(4) direct purchase from manufacturers or exclusive distributors intentionally with a conscious indifference to consequences in so far as other
persons may be affected. It is the omission of that care which even
(5) purchase from other government entities
inattentive and thoughtless men never fail to take on their own property.
This Court is not a trier of facts. The resolution of factual issues is a

Petitioner was grossly negligent in all the purchases that were made
function exercised by lower courts, whose findings on these matters are
under his watch. Petitioner’s admission that the canvass sheets sent out
received with respect and are in fact binding on the Court except only
by de Jesus to the suppliers already contained his signatures because
where it is shown that the case falls under the accepted exceptions.10
he pre-signed these forms only proved his utter disregard of the
Petitioner failed to establish that his case falls under those exceptions.
consequences of his actions. He admitted that he knew the provisions
Hence, we have no other option but to uphold the Sandiganbayan’s
of RA 7160 on personal canvass but followed practice of predecessors.
factual findings.
This was an admission of a mindless disregard for the law in a tradition

of illegality. This is totally unacceptable, considering that as municipal
mayor, petitioner ought to implement the law to the letter. As local
chief executive, he should have been the first to follow the law and see
to it that it was followed by his constituency. Sadly, however, he was the
first to break it.
Petitioner should have complied with the requirements laid down by

RA 7160 on personal canvass, no matter how strict they may have been.
Dura lex sed lex. The law is difficult but it is the law. These
requirements are not empty words but were specifically crafted to
ensure transparency in the acquisition of government supplies,
especially since no public bidding is involved in personal canvass. Truly,
the requirement that the canvass and awarding of supplies be made by
a collegial body assures the general public that despotic, irregular or
unlawful transactions do not occur. It also guarantees that no personal
preference is given to any supplier and that the government is given
the best possible price for its procurements.
Fourth Element. While it is true that the prosecution was not able to
prove any undue injury to the government as a result of the purchases,
it should be noted that there are two ways by which Section 3(e) of RA
3019 may be violated—the first, by causing undue injury to any party,
including the government, or the second, by giving any private party
any unwarranted benefit, advantage or preference. Although neither
mode constitutes a distinct offense, an accused may be charged under
either mode or both. The use of the disjunctive “or” connotes that the
two modes need not be present at the same time. In other words, the
presence of one would suffice for conviction.
Aside from the allegation of undue injury to the government, petitioner

was also charged with having given unwarranted benefit, advantage or
preference to private suppliers. Under the second mode, damage is
not required. The word “unwarranted” means lacking adequate or
official support; unjustified; unauthorized or without justification or
adequate reason. “Advantage” means a more favorable or improved
position or condition; benefit, profit or gain of any kind; benefit from
some course of action. “Preference” signifies priority or higher
evaluation or desirability; choice or estimation above another.
In order to be found guilty of the second mode, it suffices that the

accused has given unjustified favor or benefit to another, in the exercise
of his official, administrative or judicial functions. Petitioner did just
that. The fact that he repeatedly failed to follow the requirements of RA
7160 on personal canvass proves that unwarranted benefit, advantage
or preference was given to the winning suppliers. These suppliers were
awarded the procurement contract without the benefit of a fair system
in determining the best possible price for the government. The private
suppliers, which were all personally chosen by respondent, were able
to profit from the transactions without showing proof that their prices
were the most beneficial to the government. For that, petitioner must
now face the consequences of his acts.
Penalty
Any person guilty of violating Section 3 (e) of RA 3019 is punishable
with imprisonment for not less than six years and one month nor more
than fifteen years and perpetual disqualification from public office.
Thus, the penalty imposed by the Sandiganbayan which an
imprisonment term is ranging from six years and one month as
minimum to ten years as maximum and perpetual disqualification from
holding public office for each count of the offense, is in accord with law.
JOSE REYES v. PEOPLE (2010) 626 SCRA 782 On October 12, 1987, the RTC held Ricardo and the tenants in contempt
of court and ordered each of them to pay a fine of P200.00. It directed
Facts: The petitioner appeals the decision of the SB finding him guilty Ricardo and the tenants to reconvey the land to Belen and to deliver to
of the violation of Section 3(e) of RA 3019 and under Article 241 of her the share in the harvest. Ricardo and the tenants appealed this RTC
Usurpation of Official Functions under Article 241 of the RPC. decision to the CA.
Belen Lopez Vda. de Guia (Belen) was the registered absolute owner of On November 8, 1988, Belen, through her daughter and attorney-in-
two parcels of agricultural land with an area of 197,594 square meters fact, Melba G. Valenzuela (Melba), filed in the Department of Agrarian
located in Santa Barbara, Baliwag, Bulacan and covered by Transfer Reform Adjudication Board (DARAB) a complaint for ejectment and
Certificate of Title (TCT) No. 209298 of the Register of Deeds of Bulacan. collection of rents against the tenants.
On March 19, 1975, Belen’s son, Carlos de Guia (Carlos), forged a deed CA affirmed the RTC. It ruled that the RTC correctly ordered Ricardo
of sale, in which he made it appear that his mother had sold the land and the tenants to reconvey the land to Belen but held that the RTC
to him. Consequently, the Register of Deeds of Bulacan cancelled TCT erred in finding Ricardo and the tenants in contempt of court. This
No. 209298 by virtue of the forged deed of sale and issued TCT No. decision became final and executory on July 31, 1989.
210108 in Carlos’ name. On March 20, 1975, Carlos sold the land to
Ricardo San Juan (Ricardo). On the same date, Ricardo registered the On March 16, 1993, the Jose Reyes, as Provincial Adjudicator,
deed of sale in the Registry of Deeds of Bulacan, which cancelled TCT rendered a decision in DARAB Case dismissing Belen’s complaint for
No. 210108 and issued TCT No. 210338 in Ricardo’s name. ejectment and collection of rents and affirming the respective TCTs of
Subsequently, Ricardo mortgaged the land to Simeon Yangco (Simeon). the tenants. Ordered to permanently cease and desist any act tending
to oust or eject defendants or their heirs or assigns from landholding.
Upon learning of the transfers of her land, Belen filed on December 20,
1975 an adverse claim in the Register of Deeds of Bulacan. Her adverse Belen filed a notice of appeal in the DARAB on March 26, 1993.
claim was annotated on TCT No. 210338. She also filed in the then Court
of First Instance (CFI) of Baliwag, Bulacan a civil action for cancellation On March 31, 1993, the Jose Reyes granted the tenants’ motion for
of sale, reconveyance, and damages against Carlos, Ricardo and execution in DARAB Case.
Simeon, docketed as Civil Case No. 655-B.
Aggrieved, Belen, through Melba, filed an urgent motion to set aside
The CFI dismissed Belen’s complaint and affirmed the validity of the the writ of execution in DARAB Case No. 034-BUL’88, but her motion
deeds of sale between Carlos and Ricardo. MR was denied. IAC was denied. On October 24, 1994, the DARAB Central Office affirmed
dismissed Belen’s appeal due to non-payment of docket fees. the petitioner’s ruling. After her motion for reconsideration was denied,
Belen lodged an appeal to the CA (CA-G.R. SP No. 39315).
Thereafter, the tenants of the land, namely, Paulino Sacdalan, Leonardo
Sacdalan, Santiago Sacdalan, Numeriano Bautista and Romeo Garcia In due course, the CA reversed and set aside the decision of the DARAB
(tenants), invoked their right to redeem pursuant to Section 12 of Central Office and ordered the tenants:
Republic Act No. 3844, as amended. Acting thereon, Ricardo executed (a) to vacate the land;
a deed of reconveyance in favor of tenants on October 24, 1983. Upon (b) to deliver its possession to Belen; and
registration of the Deed of Reconveyance a TCT was issued under their (c) to pay to Belen the rents on the land corresponding to the
name, the lot was subdivided and individual TCTs were issued. period from 1981 until they would have vacated.
In the meanwhile, Belen discovered for the first time through a letter- The tenants filed a motion for reconsideration, but the CA denied their
inquiry to the IAC Clerk of Court that her appeal in AC-G.R. CIV No. motion. The Court affirmed the CA decision.
5524-UDK had been dismissed for non-payment of docket fees. She
thus filed in the IAC a motion to reinstate her appeal. The IAC granted Criminal Case
her motion. The reinstated appeal was re-docketed as AC-G.R. CV No. On May 13, 1998, the Office of the Ombudsman filed two informations
02883. On February 20, 1986 the IAC granted her motion. in the Sandiganbayan, one charging the petitioner with a violation of
1. It declared null and void the deed of sale between Belen and Section 3 (e) of RA 3019, and the other with usurpation of judicial
Carlos De Guia functions under Article 241 of the Revised Penal Code, as follows:
2. It declared Ricardo San Juan as a purchaser in bad faith and
ordering him to reconvey to the appellant the two parcels of INFORMATION FOR VIOLATION OF RA 3019: That on or about
land described in the complaint; 16 March 1993, or sometime prior or subsequent thereto, in
3. Ordering the ROD Bulacan to cancel and annul TCT and Malolos, Bulacan, Philippines, and within the jurisdiction of this
reinstate TCT to Belen. Honorable Court, the above-named accused Jose V. Reyes, a public
officer being then employed as Provincial Adjudicator of the
The IAC decision became final on March 15, 1986, and entry of Department of Agrarian Reform Adjudication Board (DARAB) in
judgment was made on November 7, 1986.8 The records were Malolos, Bulacan, while in the performance of his official function as
remanded to the Regional Trial Court (RTC) of Baliwag, Bulacan (RTC). such and acting with evident bad faith and manifest partiality, did
then and there willfully, unlawfully and criminally render his decision
On December 18, 1986, Belen filed in the RTC a motion for execution in DARAB Case No. 034-Bul-88 favorable to the tenants who were
vis-à-vis the decision in AC-G.R. CV No. 02883. The RTC granted her respondents in said agrarian case, thereby ignoring and
motion. However, when the writ of execution was about to be executed, disregarding the final and executory decision of the Court of
Belen learned that Ricardo had sold the land to the tenants through a Appeals in AC-GR CV-02883 which declared complainant Belen de
deed of reconveyance. Thus, Belen filed in the RTC a motion to declare Guia as the true owner of the lands subject of the litigation in both
Ricardo and the tenants in contempt of court for circumventing the cases, thus causing undue injury and damage to the said Belen de
final and executory judgment in AC-G.R. CV No. 02883. Guia and to the public interest
INFORMATION FOR USURPATION OF JUDICIAL FUNCTIONS: First Element. The first element was established. The petitioner was a
That on or about 16 March 1993, or immediately prior or subsequent public officer when he rendered his decision in DARAB Case No. 034
thereto, in Malolos, Bulacan, Philippines, abovenamed accused Jose BUL’88, being then a Provincial Adjudicator of the DARAB discharging
V. Reyes, a public officer being then employed as Provincial the duty of adjudicating the conflicting claims of parties.
Adjudicator of the Department of Agrarian Reform Adjudication
Board (DARAB) in Malolos, Bulacan, while in the performance of his Second Element. The second element includes the different and
official function as such and taking advantage thereof, with full distinct modes by which the offense is committed, that is, through
knowledge of a Decision in AC-GR CV-02883 of the Court of manifest partiality, evident bad faith, or gross inexcusable negligence.
Appeals, which declared Belen de Guia as the true owner of the lands Proof of the existence of any of the modes suffices to warrant
litigated in said case, did then and there willfully, unlawfully and conviction under Section 3 (e).
feloniously disregard, obstruct and ignore the said final and
executory decision of the Court of Appeals, by rendering a decision Manifest partiality exists when the accused has a clear, notorious, or
in DARAB Case No. 034-Bul-88 thereby favoring and emboldening plain inclination or predilection to favor one side or one person rather
the tenants-respondents in said DARAB case to unlawfully continue than another. It is synonymous with bias, which excites a disposition to
occupying the lands of Belen de Guia, the complainant, to her see and report matters as they are wished for rather than as they are.
damage and prejudice, as well as to the public interest.
Evident bad faith connotes a manifest deliberate intent on the part of
Sandiganbayan Ruling: Sandiganbayan rendered its assailed the accused to do wrong or to cause damage. It contemplates a breach
decision,22 finding the petitioner guilty of both charges; and of sworn duty through some perverse motive or ill will.
sentencing him to suffer: (a) in Criminal Case No. 24655 (for violation
of Section 3 (e) of RA 3019), an indeterminate sentence of Gross inexcusable negligence refers to negligence characterized by
imprisonment from six years and one month, as minimum, to 10 years the want of even the slightest care, acting or omitting to act in a
as maximum, with perpetual disqualification from holding public office; situation where there is duty to act, not inadvertently but willfully and
and (b) in Criminal Case No. 24656 (for usurpation of judicial functions intentionally, with conscious indifference to consequences insofar as
under Article 241 of the Revised Penal Code), imprisonment of four other persons may be affected.
months of arresto mayor. The Sandiganbayan denied the petitioner’s
motion for reconsideration on March 15, 2007. Decision on February 20, 1986 in AC-G.R. CV No. 02883—nullifying the
forged deed of sale between Belen and Carlos; declaring Ricardo a
Issues: purchaser in bad faith; ordering Ricardo to reconvey the land to Belen;
Whether or not Jose Reyes was guilty of violation Section 3(e) of RA directing the Register of Deeds of Bulacan to cancel the respective TCTs
3019 in rendering his decision in the DARAB Case. of Ricardo and Carlos; and reinstating Belen’s TCT—became final on
March 15, 1986. After the entry of judgment was made on November
Whether or not Jose Reyes was guilty of usurpation of judicial functions 7, 1986, the records were remanded to the RTC in Baliwag, Bulacan,
under Article 241 of the Revised Penal Code. which eventually granted Belen’s motion for execution.
CONTENTIONS: Petitioner maintains that there was no evident bad faith, Due to its finality, the decision in AC-G.R. CV No. 02883 became
manifest partiality, and gross inexcusable negligence on his part when immutable, and could no longer be modified in any respect, whether
he decided DARAB Case No. 034-BUL’88; that his decision therein had the modification was to correct erroneous conclusions of fact or law,
been solely based on what he had perceived to be in keeping with the whether made by the court that rendered it or by the highest court of
letter and spirit of the pertinent laws; and that his decision had been the land. The petitioner was fully aware of the finality of the
rendered upon a thorough appreciation of the facts and the law. decision in AC-G.R. CV No. 02883 prior to his promulgation of the
decision in DARAB Case No. 034 BUL’88. Indeed, he actually admitted
As to the second issue, the petitioner insists that his rendition of the having read and examined the following documents (adduced by the
decision did not amount to the felony of usurpation of judicial Prosecution) prior to his rendition of the decision:
functions. 1. Belen’s position paper stating the decision becoming final
and executory.
COURT RULE: Petitioner was correctly held guilty of and liable violating 2. Entry of judgment.
Section 3 (e) of RA 3019 in rendering his decision in DARAB Case No. 3. The TCT reflecting the entry of judgment and cancellation of
034 BUL’88, but his conviction for usurpation of judicial functions under the TCTs of the tenants-lessees.
Article 241 of the Revised Penal Code is reversed and set aside. 4. Addendum to the decision.
Elements of Section 3(e) of RA 3019, Established Herein Yet, the petitioner still rendered his decision that completely
RA 3019 was enacted to repress certain acts of public officers and contradicted and disregard the decision in AC GR CV 02883 by
private persons alike that constitute graft or corrupt practices or may invalidating Belen’s title on the land and upholding the TCTs of the
lead thereto. The law enumerates the punishable acts or omissions and tenants. He thereby exhibited manifest partiality, for such decision
provides their corresponding penalties. of his was a total and willful disregard of the final decision. His granting
the tenants’ motion for execution made his partiality towards the
The Essential Elements of the Offense under Section 3(e) tenants and bias against Belen that much more apparent.
1. The accused must be a public officer discharging
administrative, judicial, or official functions; Similarly, the petitioner’s evident bad faith displayed itself by his
2. He must have acted with manifest partiality, evident bad arrogant refusal to recognize and obey the decision in AC-G.R. CV No.
faith, or gross inexcusable negligence; and 02883, despite his unqualified obligation as Provincial Adjudicator to
3. His action caused any undue injury to any party, including abide by the CA’s ruling that was binding on him as Provincial
the Government, or gave any private party unwarranted Adjudicator and on all the parties in DARAB Case No. 034-BUL’88.
benefits, advantage, or preference in the discharge of his
functions
Worthy of note is that the CA, in CA-G.R. SP No. 39315, and this Court, Under Section 9 of RA 3019, the penalty for violation of Section 3 (e) of
in G.R. No. 128967, had characterized the petitioner’s aforementioned RA 3019 is imprisonment for not less than six years and one month nor
conduct as “an utter disrespect to the judiciary,” as vested with a more than 15 years, and perpetual disqualification from public office.
“dishonest purpose,” and as constituting “a contumacious attitude Pursuant to Section 1 of the Indeterminate Sentence Law, if the offense
which should not be tolerated.” These acute characterizations fortify the is punished by a special law, the accused is punished with an
holding that he harbored a deliberate intent to do wrong to Belen. indeterminate sentence the maximum of which does not exceed the
Correctly did the Sandiganbayan find that Jose Reyes displayed maximum fixed by the law violated, and the minimum is not less than
manifest partiality and evident bad faith in rendering decision. the minimum term prescribed by the law violated.
Third Element. It is when the act of the accused caused undue injury Accordingly, in Criminal Case No. 24655, the Sandiganbayan correctly
to any party, including the Government, or, gave any private party imposed on the petitioner the indeterminate penalty of imprisonment
unwarranted benefit, advantage or preference in the discharge of the ranging from six years and one month, as minimum, to 10 years as
functions of the accused—was also established. maximum. The penalty of perpetual disqualification from public office
was also correctly imposed.
In this regard, proof of the extent or quantum of damage was not
essential, it being sufficient that the injury suffered or the benefit HELD: WHEREFORE, the Court affirms the conviction of the petitioner
received could be perceived to be substantial enough and was not in Criminal Case No. 24655 (for violation of section 3 (e) of RA 3019),
merely negligible. but reverses and sets aside his conviction in Criminal Case No. 24656
(for usurpation of judicial functions as defined and penalized under
Belen was constrained to engage the services of a lawyer and to incur Article 241 of the Revised Penal Code).
other expenses in order to protect and prosecute her interest in DARAB
Case No. 034 BUL’88. In all, her expenses were in the substantial sum
of P990,000.00.43. Moreover, the petitioner’s stubborn refusal to
recognize and obey the decision in AC-G.R. CV No. 02883 forced a
further but needless prejudicial delay in the prompt termination of the
cases. The delay proved very costly to Belen, for, in that length of time
(that is, from March 16, 1993 up to the present), Belen has been unduly
deprived of her exclusive ownership and undisturbed possession
of the land, and the fruits thereof.
The injury and prejudice surely equated to undue injury for Belen.
Likewise, the petitioner’s ruling in DARAB Case No. 034 BUL’88 gave
unwarranted benefit, advantage, or preference to the tenants by
allowing them to remain in possession of the land and to enjoy the
fruits.
RULE: Given the foregoing considerations, the Sandiganbayan correctly

convicted the petitioner in Criminal Case No. 24655 for violating
Section 3 (e) of RA 3019.
ARTICLE 241. USURPATION OF JUDICIAL FUNCTIONS

Article 241 states that the penalty of arresto mayor in its medium period
to prision correcional in its minimum period shall be imposed upon any
officer of the executive branch of the government who shall assume
judicial powers or shall obstruct the execution of any order or decision
rendered by any judge within his jurisdiction.
In usurpation of judicial function, the accused, who is not a judge,

attempts to perform an act the authority for which the law has vested
only in a judge.
IN THE CASE: However, the petitioner’s task as Provincial Adjudicator

when he rendered judgment in DARAB Case No. 034 BUL’88 was to
adjudicate the claims of the opposing parties. As such, he performed a
quasi-judicial function, closely akin to the function of a judge of a court
of law. He could not be held liable under Article 241 of the Revised
Penal Code, therefore, considering that the acts constitutive of
usurpation of judicial function were lacking herein.
PENALTIES. The Sandiganbayan appreciated the mitigating

circumstance of old age in favor of the petitioner by virtue of his being
already over 70 years old. The Sandiganbayan thereby erred. The
mitigating circumstance of old age under Article 13 (2) of the Revised
Penal Code applied only when the offender was over 70 years at the
time of the commission of the offense. The petitioner, being only 63
years old when he committed the offenses charged,
APELADO v. PEOPLE (2011) 653 SCRA 576 At the trial, petitioners presented three witnesses:
Facts: Petitioners Ruperto A. Ambil, Jr. and Alexandrino R. Apelado Ambil’s Testimony
filed two consolidated petitions for review on certiorari assailing the Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar
decision and resolution of the Sandiganbayan. from 1998 to 2001. According to him, it was upon the advice of Adalim’s
lawyers that he directed the transfer of Adalim’s detention to his home.
The present controversy arose from a letter of Atty. David B. Loste, He cites poor security in the provincial jail as the primary reason for
President of the IBP Eastern Samar Chapter, to the Office of the taking personal custody of Adalim considering that the latter would be
Ombudsman, praying for an investigation into the alleged transfer of in the company of inmates who were put away by his sister and guards
then Mayor Francisco Adalim, an accused in Criminal Case No. 10963 identified with his political opponents.
for murder, from the provincial jail of Eastern Samar to the residence
of petitioner, then Governor Ruperto A. Ambil, Jr. Atty. Juliana Adalim-White
She is the District Public Attorney of Eastern Samar and the sister of
In a report, the NBI recommended filing of criminal charges against Mayor Adalim. She recounted how Mayor Adalim was arrested while
Ambil, Jr. for violation Section 3(e) of Republic Act No. 3019. On they were attending a wedding in Sulat, Eastern Samar, on September
September 22, 1999, the new President of the IBP, Eastern Samar 6, 1998. According to Atty. White, she sought the alternative custody of
Chapter, informed the Ombudsman that the IBP is no longer interested Gov. Ambil, Jr. after Provincial Warden and herein petitioner Apelado,
in pursuing the case against petitioners. Thus, he recommended the Sr. failed to guarantee the mayor’s safety.
dismissal of the complaint against petitioners.
Francisco Adalim
Nonetheless, in an Information dated January 31, 2000, petitioners Francisco Adalim introduced himself as the Mayor of Taft, Eastern
Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation Samar. He confirmed his arrest on September 6, 1998 in connection
of Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. with a murder case filed against him in the Regional Trial Court (RTC)
Upon reinvestigation, the Office of the Ombudsman issued a of Borongan, Eastern Samar. Adalim confirmed Atty. White’s account
Memorandum10 dated August 4, 2000, recommending the dismissal of that he spotted inmates who served as bodyguards for, or who are
the complaint as regards Balano and the amendment of the associated with, his political rivals at the provincial jail. He also noticed
Information to include the charge of Delivering Prisoners from Jail a prisoner, Roman Akyatan, gesture to him with a raised clenched fist.
under Article 156 of the RPC. Sensing danger, he called on his sister for help. Adalim admitted staying
at Ambil, Jr.’s residence for almost three months before he posted bail
AMENDED INFORMATION: That on or about the 6th day of after the charge against him was downgraded to homicide.
September 1998, and for sometime prior [or] subsequent thereto,
[in] the Municipality of Borongan, Province of Eastern Samar, Apelado’s Testimony
Philippines, and within the jurisdiction of this Honorable Court, [the] He testified that he was the Provincial Jail Warden of Eastern Samar. He
above-named accused, Ruperto A. Ambil, Jr.[,] being then the recalls that on September 6, 1998, SPO3 Felipe Balano fetched him at
Provincial Governor of Eastern Samar, and Alexandrino R. Apelado, home to assist in the arrest of Mayor Adalim. Allegedly, Atty. White was
being then the Provincial Warden of Eastern Samar, both having contesting the legality of Mayor Adalim’s arrest and arguing with the
been public officers, duly elected, appointed and qualified as such, jail guards against booking him for detention. At the provincial jail,
committing the offense in relation to office, conniving and petitioner was confronted by Atty. White who informed him that he was
confederating together and mutually helping x x x each other, with under the governor, in the latter’s capacity as a provincial jailer.
deliberate intent, manifest partiality and evident bad faith, did then Petitioner claims that it is for this reason that he submitted to the
and there wilfully, unlawfully and criminally order and cause the governor’s order to relinquish custody of Adalim.
release from the Provincial Jail of detention prisoner Mayor
Francisco Adalim, accused in Criminal Case No. 10963, for Murder, He further described the condition of the jail to be dilapidated and
by virtue of a warrant of Arrest issued by Honorable Arnulfo P. undermanned. According to him, only two guards were in charge of
Bugtas, Presiding Judge, RTC-Branch 2, Borongan, Eastern Samar, looking after 50 inmates. There were two cells in the jail, each housing
and thereafter placed said detention prisoner (Mayor Francisco 25 inmates, while an isolation cell of 10 square meters was
Adalim) under accused RUPERTO A. AMBIL, JR.’s custody, by unserviceable at the time. Also, there were several nipa huts within the
allowing said Mayor Adalim to stay at accused Ambil’s residence for perimeter for use during conjugal visits.
a period of Eighty-Five (85) days, more or less which act was done
without any court order, thus accused in the performance of official Sandiganbayan First Division. It promulgated the assailed Decision
functions had given unwarranted benefits and advantage to finding petitioners guilty of violating Section 3(e) of R.A. No. 3019. The
detainee Mayor Francisco Adalim to the prejudice of the court ruled that in moving Adalim to a private residence, petitioners
government. CONTRARY TO LAW. BAIL BOND RECOMMENDED: have conspired to accord him unwarranted benefits in the form of more
P30,000.00 each.” comfortable quarters with access to television and other privileges that
Arraignment: Pleaded Not Guilty and Posted Bail other detainees do not enjoy. It stressed that under the Rules, no
person under detention by legal process shall be released or transferred
At the pre-trial, petitioners admitted the allegations in the Information. except upon order of the court or when he is admitted to bail.
They reason, however, that Adalim’s transfer was justified considering
the imminent threats upon his person and the dangers posed by his SB brushed aside the defense of safety. It observed that Ambil, Jr. did
detention at the provincial jail. According to the petitioners, Adalim’s not personally verify any actual threat on Adalim’s life but relied simply
sister, Atty. Juliana A. Adalim-White had sent numerous prisoners to the on the advice of Adalim’s lawyers. The Sandiganbayan also pointed out
same jail where Mayor Adalim was to be held. Consequently, the the availability of an isolation cell and nipa huts within the 10-meter-
prosecution no longer offered testimonial evidence and rested its case high perimeter fence of the jail which could have been used to separate
after the admission of its documentary exhibits. Petitioners filed a Adalim from other prisoners. Finally, it cited petitioner Ambil, Jr.’s failure
Motion for Leave to File Demurrer to Evidence with Reservation to to turn over Adalim despite advice from Assistant Secretary Jesus
Present Evidence in Case of Denial but the same was denied. Ingeniero of the Department of Interior and Local Government.
Issues for Petitioner Ambil, Jr. First Element. There is no question that petitioners are public officers
1. Whether or not he is guilty beyond reasonable doubt of discharging official functions and that jurisdiction over them lay with
violating Section 3(e) of RA 3019; the Sandiganbayan. Jurisdiction of the Sandiganbayan over public
2. Whether a provincial governor has authority to take personal officers charged with violation of the Anti-Graft Law.
custody of a detention prisoner;
3. Whether or not he is entitled to the justifying circumstance of Second Element. For its part, RA 3019 describes three ways of violating
fulfillment of duty under Article 11(5) of the RPC. Section 3(e) of RA 3019 may be committed, that is, through manifest
partiality, evident bad faith or gross inexcusable negligence.
Issues for Petitioner Apelado, Sr.
1. Whether or not he is guilty beyond reasonable doubt of IN THIS CASE: We find that petitioners displayed manifest partiality and
violating Section 3(e) of RA 3019; evident bad faith in transferring the detention of Mayor Adalim to
2. Whether he is entitled to the justifying circumstance of petitioner Ambil, Jr.’s house.
obedience to an order by a superior for some lawful purpose
under Article 11(6) of the RPC. There is no merit to petitioner Ambil, Jr.’s contention that he is
authorized to transfer the detention of prisoners by virtue of his power
CONTENTION OF AMBIL: Fundamentally, petitioner Ambil, Jr. argues that as the “Provincial Jailer” of Eastern Samar. Significantly, it is the
Section 3(e), R.A. No. 3019 does not apply to his case because the provincial government and not the governor alone which has authority
provision contemplates only transactions of a pecuniary nature. Since to exercise control and supervision over provincial jails
the law punishes a public officer who extends unwarranted benefits to
a private person, petitioner avers that he cannot be held liable for Administrative Code as defense: But again, nowhere did said provision
extending a favor to Mayor Adalim, a public officer. designate the provincial governor as the “provincial jailer,” or even
slightly suggest that he is empowered to take personal custody of
Further, he claims good faith in taking custody of the mayor pursuant prisoners.
to his duty as a “Provincial Jailer” under the Administrative Code of
1917. Considering this, petitioner believes himself entitled to the What is clear from the cited provision is that the provincial governor’s
justifying circumstance of fulfillment of duty or lawful exercise of duty. duty as a jail keeper is confined to the administration of the jail and
the procurement of food and clothing for the prisoners. After all,
CONTENTION OF APELADO: Petitioner Apelado, Sr., on the other hand, administrative acts pertain only to those acts which are necessary to be
denies allegations of conspiracy between him and petitioner Ambil, Jr. done to carry out legislative policies and purposes already declared by
Petitioner Apelado, Sr. defends that he was merely following the orders the legislative body or such as are devolved upon it by the Constitution.
of a superior when he transferred the detention of Adalim. As well, he Therefore, in the exercise of his administrative powers, the governor can
invokes immunity from criminal liability. only enforce the law but not supplant it.
CONTENTION OF THE PROSECUTOR: For the State, the Office of the Indubitably, the power to order the release or transfer of a person under
Special Prosecutor (OSP) points out the absence of jurisprudence that detention by legal process is vested in the court, not in the provincial
restricts the application of Section 3(e), R.A. No. 3019 to transactions of government, much less the governor. This was amply clarified by Asst.
a pecuniary nature. The OSP explains that it is enough to show that in Sec. Ingeniero in his communication dated October 6, 1998 addressed
performing their functions, petitioners have accorded undue preference to petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:
to Adalim for liability to attach under the provision.
Dear Sir: This has reference to the letter of Atty. Edwin B. Docena, and the
Further, the OSP maintains that Adalim is deemed a private party for reports earlier received by this Department, relative to your alleged action in
taking into custody Mayor Francisco “Aising” Adalim of Taft, that province,
purposes of applying Section 3(e), R.A. No. 3019 because the
who has been previously arrested by virtue by a warrant of arrest issued in
unwarranted benefit redounded, not to his person as a mayor, but to
Criminal Case No. 10963. If the report is true, it appears that your actuation
his person as a detention prisoner accused of murder. is not in accord with the provision of Section 3, Rule 113 of the Rules of
Court, which mandates that an arrested person be delivered to the nearest
It suggests further that petitioners were motivated by bad faith as police station or jail. Moreover, invoking Section 61 of RA 6975 as legal basis
evidenced by their refusal to turn over Adalim despite instruction from in taking custody of the accused municipal mayor is misplaced. Said section
Asst. Sec. Ingeniero. The OSP also reiterates petitioners’ lack of merely speaks of the power of supervision vested unto the provincial
governor over provincial jails. It does not, definitely, include the power to
authority to take custody of a detention prisoner without a court order.
take in custody any person in detention. In view of the foregoing, you are
Hence, it concludes that petitioners are not entitled to the benefit of
hereby enjoined to conduct yourself within the bounds of law and to
any justifying circumstance. immediately deliver Mayor Adalim to the provincial jail in order to avoid legal
complications. Please be guided accordingly.
COURT RULING: After a careful review of this case, the Court finds the
present petitions bereft of merit. Still, petitioner Ambil, Jr. insisted on his supposed authority as a
“provincial jailer.” Said petitioner’s usurpation of the court's authority,
Elements to be Liable Under Section 3(e) of RA 3019 not to mention his open and willful defiance to official advice in order
In order to hold a person liable under this provision, the following to accommodate a former political party mate, betray his unmistakable
elements must concur: bias and the evident bad faith that attended his actions.
(1) the accused must be a public officer discharging
administrative, judicial or official functions; Third Element. To hold a person liable for violation of Section 3(e), R.A.
(2) he must have acted with manifest partiality, evident bad faith No. 3019, it is required that act constituting the offense consist either:
or gross inexcusable negligence; and (1) causing undue injury to any party, including the government,
(3) his action caused any undue injury to any party, including the or
government, or gave any private party unwarranted benefits, (2) giving any private party any unwarranted benefits, advantage
advantage or preference in the discharge of his functions or preference in the discharge by the accused of his official,
administrative or judicial functions.
IN THE CASE: The Information specifically accused petitioners of giving Anyhow, such repair could not have exceeded the 85 days that
unwarranted benefits and advantage to Mayor Adalim, a public officer Adalim stayed in Ambil, Jr.’s house. More importantly, even if Adalim
charged with murder, by causing his release from prison and detaining could have proven the presence of an imminent peril on his person to
him instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. petitioners, a court order was still indispensable for his transfer.
negates the applicability of Section 3(e), R.A. No. 3019 in this case on
two points: The foregoing indeed negates the application of the justifying
• First, Section 3(e) is not applicable to him allegedly because circumstances claimed by the petitioners.
the last sentence thereof provides that the “provision shall
apply to officers and employees of offices or government Ambil. He invokes the justifying circumstance of fulfillment of duty or
corporations charged with the grant of licenses, permits or lawful exercise of right or office. Under paragraph 5, Article 11 of the
other concessions” and he is not such government officer or RPC, any person who acts in the fulfillment of a duty or in the lawful
employee. exercise of a right or office does not incur any criminal liability.
• Second, the purported unwarranted benefit was accorded
not to a private party but to a public officer. In order for this justifying circumstance to apply, two requisites must
be satisfied:
Regarding his first contention, it appears that petitioner Ambil, Jr. has (1) the accused acted in the performance of a duty or in the
obviously lost sight, if he is not altogether unaware, of our ruling in lawful exercise of a right or office;
Mejorada v. Sandiganbayan where we held that a prosecution for (2) and the injury caused, or the offense committed be the
violation of Section 3(e) of the Anti-Graft Law will lie regardless of necessary consequence of the due performance of duty or
whether or not the accused public officer is “charged with the grant of the lawful exercise of such right or office.
licenses or permits or other concessions.”
IN THE CASE: Both requisites are lacking in petitioner Ambil, Jr.’s case.
Regarding his second contention, Section 2(b) of R.A. No. 3019 defines As we have earlier determined, petitioner Ambil, Jr. exceeded his
a “public officer” to include elective and appointive officials and authority when he ordered the transfer and detention of Adalim at his
employees, permanent or temporary, whether in the classified or house. Needless to state, the resulting violation of the Anti-Graft Law
unclassified or exemption service receiving compensation, even did not proceed from the due performance of his duty or lawful exercise
nominal from the government. Evidently, Mayor Adalim is one. But of his office.
considering that Section 3(e) of R.A. No. 3019 punishes the giving by a
public officer of unwarranted benefits to a private party, does the fact Apelado. He invokes the justifying circumstance of obedience to an
that Mayor Adalim was the recipient of such benefits take petitioners’ order issued for some lawful purpose. Under paragraph 6, Article 11 of
case beyond the ambit of said law? the RPC, any person who acts in obedience to an order issued by a
superior for some lawful purpose does not incur any criminal liability.
We believe not. In drafting the Anti-Graft Law, the lawmakers opted to For this justifying circumstance to apply, the following requisites are:
use “private party” rather than “private person” to describe the (1) An order has been issued by the superior;
recipient of the unwarranted benefits, advantage or preference for a (2) Such order must be for some lawful purpose;
reason. The term “party” is a technical word having a precise meaning (3) The means used by the subordinate to carry out said order is
in legal parlance as distinguished from “person” which, in general lawful.
usage, refers to a human being. Thus, a private person simply pertains
to one who is not a public officer. While a private party is more IN THE CASE: Only the first requisite is present in this case. While the
comprehensive in scope to mean either a private person or a public order for Adalim’s transfer emanated from petitioner Ambil, Jr., who
officer acting in a private capacity to protect his personal interest. was then Governor, neither said order nor the means employed by
petitioner Apelado, Sr. to carry it out was lawful.
So, when petitioners transferred Mayor Adalim from the provincial jail
and detained him at petitioner Ambil, Jr.’s residence, they accorded In his capacity as the Provincial Jail Warden of Eastern Samar, petitioner
such privilege to Adalim, not in his official capacity as a mayor, but as a Apelado, Sr. fetched Mayor Adalim at the provincial jail and, unarmed
detainee charged with murder. Thus, for purposes of applying the with a court order, transported him to the house of petitioner Ambil, Jr.
provisions of Section 3(e), R.A. No. 3019, Adalim was a private party. This makes him liable as a principal by direct participation under Article
17(1) of the RPC.
Without a court order, petitioners transferred Adalim and detained him
in a place other than the provincial jail. The latter was housed in much Badge of Conspiracy. An accepted badge of conspiracy is when the
more comfortable quarters, provided better nourishment, was free to accused by their acts aimed at the same object, one performing one
move about the house and watch television. Petitioners readily part of and another performing another so as to complete it with a view
extended these benefits to Adalim on the mere representation of his to the attainment of the same object, and their acts although
lawyers that the mayor’s life would be put in danger inside the apparently independent were in fact concerted and cooperative,
provincial jail. indicating closeness of personal association, concerted action and
concurrence of sentiments.
As the Sandiganbayan ruled, however, petitioners were unable to
establish the existence of any risk on Adalim’s safety. To be sure, the IN THE CASE: Conspiracy was sufficiently demonstrated Apelado, Sr.’s
latter would not be alone in having unfriendly company in lockup. Yet, willful cooperation in executing petitioner Ambil, Jr.’s order to move
even if we treat Akyatan’s gesture of raising a closed fist at Adalim as Adalim from jail, despite the absence of a court order. Petitioner
a threat of aggression, the same would still not constitute a special and Apelado, Sr., a law graduate, cannot hide behind the cloak of ignorance
compelling reason to warrant Adalim’s detention outside the provincial of the law. The Rule requiring a court order to transfer a person under
jail. For one, there were nipa huts within the perimeter fence of the jail detention by legal process is elementary. Truth be told, even petitioner
which could have been used to separate Adalim from the rest of the governor who is unschooled in the intricacies of the law expressed
prisoners while the isolation cell was undergoing repair. reservations on his power to transfer Adalim.
All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr.
resulting in the violation charged, makes them equally responsible as
conspirators.
Penalty
As regards the penalty imposed upon petitioners, Section 9(a) of R.A.
No. 3019 punishes a public officer or a private person who violates
Section 3 of R.A. No. 3019 with imprisonment for not less than six (6)
years and one (1) month to not more than fifteen (15) years and
perpetual disqualification from public office.
Under Section 1 of the Indeterminate Sentence Law or Act No. 4103, as

amended by Act No. 4225, if the offense is punished by a special law,
the court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said
law and the minimum shall not be less than the minimum term
prescribed by the same.
Thus, the penalty imposed by the Sandiganbayan upon petitioner

Ambil, Jr. of imprisonment for nine (9) years, eight (8) months and one
(1) day to twelve (12) years and four (4) months is in accord with law.
As a co-principal without the benefit of an incomplete justifying
circumstance to his credit, petitioner Apelado, Sr. shall suffer the same
penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of

the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH
MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and
Alexandrino R. Apelado, Sr. guilty beyond reasonable doubt of violating
Section 3(e), R.A. No. 3019. Petitioner Alexandrino R. Apelado, Sr. is,
likewise, sentenced to an indeterminate penalty of imprisonment for
nine (9) years, eight (8) months and one (1) day to twelve (12) years and
four (4) months. With costs against the petitioners.
CARPIO-MORALES v. CA & BINAY (2015) 774 SCRA 431 The Ombudsman ruled that the requisites for the preventive suspension
of a public officer are present, finding that:
Facts: A complaint affidavit was filed by Atty. Renato Bondal and (a) the evidence of Binay, Jr., et al.’s guilt was strong given that
Nicolas “Ching” Enciso VI before the Ombudsman against Binay and a. The losing bidders and members of the Bids and
other public officers and employees of the City Government of Makati, Awards Committee of Makati City had attested to
accusing them of Plunder and violation of RA 3019 in connection with the irregularities attending the Makati Parking
the five phases of the procurement and construction of the Makati Building project;
City Hall Parking Building. b. The documents on record negated the publication
of bids; and
On September 9, 2014, the Ombudsman constituted a Special Panel c. The disbursement vouchers, checks, and official
of Investigators to conduct a fact-finding investigation, submit a receipts showed the release of funds; and
report and file the necessary complaint if warranted (1st Special Panel).
Pursuant to the Ombudsman’s directive, the 1st Special Panel filed a (b) (1) Binay, Jr., et al. were administratively charged with Grave
complaint (OMB Complaint) against Binay, Jr., et al., charging them with Misconduct, Serious Dishonesty, and Conduct Prejudicial to
six administrative cases and six criminal cases for violation of Section the Best Interest of the Service; (2) said charges, if proven to
3(e) of RA 3019, Malversation of Public Funds, and Falsification of be true, warrant removal from public service under the
Public Documents (OMB Cases). Revised Rules on Administrative Cases in the Civil Service
(RRACCS); and (3) Binay, Jr., et al.’s respective positions give
As to Binay, Jr., the OMB Complaint alleged that he was involved in them access to public records and allow them to influence
anomalous activities attending the following procurement and possible witnesses; hence, their continued stay in office may
construction phases of the Makati Parking Building project, committed prejudice the investigation relative to the OMB Cases filed
during his previous and present terms as City Mayor of Makati: against them.
Binay’s First Term (2010-2013) Consequently, the Ombudsman directed the Department of the Interior
(a) On September 21, 2010, Binay, Jr. issued the Notice of Award for and Local Government (DILG), through Secretary Manuel A. Roxas II
Phase III of the Makati Parking Building project to Hilmarc’s (Secretary Roxas), to immediately implement the preventive suspension
Construction Corporation (Hilmarc’s), and consequently, executed order against Binay, Jr., et al., upon receipt of the same. On March 11,
the corresponding contract on September 28, 2010, without the 2015, a copy of the preventive suspension order was sent to the Office of
required publication and the lack of architectural design, and approved the City Mayor, and received by Maricon Ausan, Binay, Jr.’s staff.
the release of funds.
PROCEEDINGS BEFORE THE COURT OF APPEALS
(b) On August 11, 2011, Binay, Jr. issued the Notice of Award for Phase Binay filed a petition for certiorari seeking the nullification of the
IV of the Makati Parking Building project to Hilmarc’s, and preventive suspension order and praying for TRO or WPI to enjoin its
consequently, executed the corresponding contract on August 18, implementation.
2011, without the required publication and the lack of architectural
design, and approved the release of funds. Primarily, Binay, Jr. argued that he could not be held administratively
liable for any anomalous activity attending any of the five (5) phases of
(c) On September 6, 2012, Binay, Jr. issued the Notice of Award for the Makati Parking Building project since:
Phase V of the Makati Parking Building project to Hilmarc’s, and (a) Phases I and II were undertaken before he was elected Mayor
consequently, executed the corresponding contract on September 13, of Makati in 2010; and
2012,42 without the required publication and the lack of architectural (b) Phases III to V transpired during his first term and that his
design, and approved the release of the funds therefor. reelection as City Mayor of Makati for a second term
effectively condoned his administrative liability therefor,
Binay’s Second Term (2013-2016) if any, thus rendering the administrative cases against him
(d) On July 3, 2013 and July 4, 2013, Binay, Jr. approved the release of moot and academic.
funds for the remaining balance of the September 13, 2012 contract
with Hilmarc’s for Phase V of the Makati Parking Building project in the In any event, Binay, Jr. claimed that the Ombudsman’s preventive
amount of P27,443,629.97;47 and suspension order failed to show that the evidence of guilt presented
against him is strong, maintaining that he did not participate in any of
(e) On July 24, 2013, Binay, Jr. approved the release of funds for the the purported irregularities.
remaining balance of the contract48 with MANA Architecture & Interior
Design Co. (MANA) for the design and architectural services covering In support of his prayer for injunctive relief, Binay, Jr. argued that he has
the Makati Parking Building project in the amount of P429,011.48. a clear and unmistakable right to hold public office, having won by
landslide vote in the 2010 and 2013 elections, and that, in view of the
2nd Special Panel of the Ombudsman and Preventive Suspension condonation doctrine, as well as the lack of evidence to sustain the
On March 6, 2015, the Ombudsman created another Special Panel of charges against him, his suspension from office would undeservedly
Investigators to conduct a PI and administrative adjudication on the deprive the electorate of the services of the person they have
OMB Cases (2nd Special Panel). Thereafter, on March 9, 2015, the 2nd conscientiously chosen and voted into office.
Special Panel issued separate orders for each of the OMB Cases,
requiring Binay, Jr., et al. to file their respective counter-affidavits. On March 16, 2015, at around 8:24 a.m., Secretary Roxas caused the
implementation of the preventive suspension order through the DILG
Before Binay, Jr., et al.’s filing of their counter-affidavits, the National Capital Region-Regional Director, Renato L. Brion, CESO III
Ombudsman, upon the recommendation of the 2nd Special Panel, (Director Brion), who posted a copy thereof on the wall of the Makati
issued on March 10, 2015, the subject preventive suspension order, City Hall after failing to personally serve the same on Binay, Jr. as the
placing Binay, Jr., et al. under preventive suspension for not more than points of entry to the Makati City Hall were closed.
six (6) months without pay, during the pendency of the OMB Cases.
At around 9:47 a.m., Assistant City Prosecutor of Makati Billy C. Meanwhile, after the oral arguments, the CA issued a resolution
Evangelista administered the oath of office on Makati City Vice Mayor granting Binay, Jr.’s prayer for a WPI, which further enjoined the
Romulo V. Peña, Jr. (Peña, Jr.) who thereupon assumed office as Acting implementation of the preventive suspension order. In so ruling, the CA
Mayor. found that Binay, Jr. has an ostensible right to the final relief prayed for,
namely, the nullification of the preventive suspension order, in view of
At noon of the same day, the CA issued a Resolution (dated March 16, the condonation doctrine, citing Aguinaldo v. Santos.
2015), granting Binay, Jr.’s prayer for a TRO, notwithstanding Peña, Jr.’s
assumption of duties as Acting Mayor earlier that day. Particularly, it found that the Ombudsman can hardly impose
preventive suspension against Binay, Jr. given that his reelection in 2013
Citing the case of Governor Garcia, Jr. v. CA, the CA found that it was as City Mayor of Makati condoned any administrative liability arising
more prudent on its part to issue a TRO in view of the extreme urgency from anomalous activities relative to the Makati Parking Building
of the matter and seriousness of the issues raised, considering that if it project from 2007 to 2013.
were established that the acts subject of the administrative cases
against Binay, Jr. were all committed during his prior term, then, In response to this Resolution, the OMB filed a supplemental motion to
applying the condonation doctrine, Binay, Jr.’s reelection meant that he the SC, arguing that the condonation doctrine is irrelevant to the
can no longer be administratively charged. The CA then directed the determination of whether the evidence of guilt is strong for purposes
Ombudsman to comment on Binay, Jr.’s petition for certiorari. of issuing preventive suspension orders. The Ombudsman also
maintained that a reliance on the condonation doctrine is a matter of
On March 17, 2015, the Ombudsman manifested that the TRO did not defense, which should have been raised by Binay, Jr. before it during
state what act was being restrained and that since the preventive the administrative proceedings, and that, at any rate, there is no
suspension order had already been served and implemented, there was condonation because Binay, Jr. committed acts subject of the OMB
no longer any act to restrain. Complaint after his reelection in 2013.
Petition for Contempt Doctrine of Condonation

Binay, Jr. accused accusing Secretary Roxas, Director Brion, the officials The Philippine Supreme Court first addressed the applicability of the
of the Philippine National Police, and Peña, Jr. of deliberately refusing doctrine of condonation in the 1959 case of Pascual. In the said case,
to obey the CA, thereby allegedly impeding, obstructing, or degrading Arturo was elected as mayor of San Jose, Nueva Ecija and subsequently
the administration of justice. The Ombudsman and Department of re-elected in 1955.
Justice Secretary Leila M. De Lima were subsequently impleaded as
additional respondents upon Binay, Jr.’s filing of the amended and The rationale, according to the Supreme Court, was that “each term is
supplemental petition for contempt (petition for contempt) on March separate from other terms, and the reelection to office operates as
19, 2015. Among others, Binay, Jr. accused the Ombudsman and other condonation of the officer’s previous misconduct to the extent of
respondents therein for willfully and maliciously ignoring the TRO cutting off the right to remove him therefor.
issued by the CA against the preventive suspension order. The CA
directed the Ombudsman to file comment on the petitions. Having seen the havoc that could be wrought by public officials with
unbridled power and keeping in mind the negative attitude of the
PROCEEDINGS BEFORE THE SUPREME COURT Filipino people towards the public service sector, the framers of the
Ombudsman filed the present petition before this Court, assailing the 1987 Constitution put special emphasis on the integrity of public
CA’s March 16, 2015 Resolution, which granted Binay, Jr.’s prayer for service, declaring it as a constitutional principle and a State policy. Thus,
TRO in C.A.-G.R. S.P. No. 139453, and the March 20, 2015 Resolution Section 27, Article II of the 1987 Constitution provides that “[t]he State
directing her to file a comment on Binay, Jr.’s petition for contempt in shall maintain honesty and integrity in the public service and take
C.A.-G.R. S.P. No. 139504. The Ombudsman claims that: positive and effective measures against graft and corruption.
(a) the CA had no jurisdiction to grant Binay, Jr.’s prayer for a
TRO, citing Section 14 of RA 6770, or “The Ombudsman Act Although the Supreme Court first applied the condonation doctrine in
of 1989,” which states that no injunctive writ could be Pascual, the case most frequently cited as the basis for the doctrine is
issued to delay the Ombudsman’s investigation unless Aguinaldo v. Santos. Decided in 1992, it centered on a complaint for
there is prima facie evidence that the subject matter disloyalty and its consequence on the re-election of Governor Rodolfo
thereof is outside the latter’s jurisdiction; and Aguinaldo. Aguinaldo was elected Governor of Cagayan in 1988. In
(b) The CA’s directive for the Ombudsman to comment on Binay, 1989, mayors of some municipalities in the said Province filed a
Jr.’s petition for contempt is illegal and improper, considering complaint for disloyalty against Aguinaldo for his alleged participation
that the Ombudsman is an impeachable officer, and in an attempted coup d’état.
therefore, cannot be subjected to contempt proceedings.
In ruling on the disloyalty case, the Supreme Court held —
Binay, Jr. argues that Section 1, Article VIII of the 1987 Constitution Petitioner’s re-election to the position of Governor of Cagayan has
specifically grants the CA judicial power to review acts of any branch or rendered the administration case pending before Us moot and
instrumentality of government, including the Office of the academic. It appears that after the canvassing of votes, petitioner
Ombudsman, in case of grave abuse of discretion amounting to lack or garnered the most number of votes among the candidates for governor
excess of jurisdiction, which he asserts was committed in this case when of Cagayan province.
said office issued the preventive suspension order against him.
Aguinaldo became the landmark case for the condonation doctrine,
Binay, Jr. posits that it was incumbent upon the Ombudsman to have which is why the doctrine had often been called the Aguinaldo
been apprised of the condonation doctrine as this would have weighed doctrine. In succeeding years, it was reiterated countless times — the
heavily in determining whether there was strong evidence to warrant panacea for a term of office plagued with the ills of misconduct. The
the issuance of the preventive suspension order. In this relation, Binay, cases of Salalima and Mayor Garcia are particularly notable because
Jr. maintains that the CA correctly enjoined the implementation of the the condonation doctrine was made to apply therein, even when the
preventive suspension order. prohibited acts were made after re-election.
They were based on the rationale that they were committed pursuant Nevertheless, the Supreme Court still proceeded to determine the
to a contract executed before the re-election legality of the condonation doctrine, ratiocinating that all the
exceptions to the mootness principle obtained in the instant case: (1)
The Instant Case there was a grave violation of the Constitution; (2) the exceptional
character of the situation and the paramount public interest was
A. Unconstitutionality of Section 14 of RA 6770 involved; (3) the constitutional issue raised required formulation of
The resolution on the first two issues depended on the Supreme Court’s controlling principles to guide the bench, the bar, and the public; and
interpretation of Section 14 of R.A. No. 6770.This Provision states — (4) the case was capable of repetition yet evaded review.
Section 14. Restrictions. — No writ of injunction shall be issued by any court to No Bases in Law: The Supreme Court was accurate in stating that
delay an investigation being conducted by the Ombudsman under this Act, unless the condonation doctrine “was adopted hook, line, and sinker in
there is a prima facie evidence that the subject matter of the investigation is
our jurisprudence. The wealth of jurisprudence applying the said
outside the jurisdiction of the Office of the Ombudsman.
doctrine echoed the declarations in Pascual without reference to the
No court shall hear any appeal or application for remedy against the decision or constitutional and statutory provisions on accountability of public
findings of the Ombudsman, except the Supreme Court, on pure question of law. officers.
Based on the afore-quoted Provision, the Ombudsman argued before It goes without saying that “[t]he foundation of our entire legal system
the Supreme Court that the CA did not have subject matter jurisdiction is the Constitution. It is the supreme law of the land; thus, the
over Binay, Jr.’s petition for certiorari and its issuance of a TRO and WPI unbending rule is that every statute should be read in light of the
against the preventive suspension order of the Ombudsman. Constitution.”
Invoking the independence of the Office of the Ombudsman under Thus, the Supreme Court clarified that when Pascual was decided under
the Constitution, the Ombudsman claimed that the First Paragraph of the 1935 Constitution, there was simply no legal obstacle for the
Section 14 of R.A. No. 6770 prohibited the CA from issuing an injunctive application of the condonation doctrine therein based on select U.S.
writ to enjoin her Office’s preventive suspension against Binay, Jr. While cases. However, with the advent of the 1973 and 1987 Constitutions,
the Supreme Court agreed that the Office of the Ombudsman is the primacy of the integrity of public service was cemented. Given this,
independent, being a constitutionally-created Office, and is protected there have been scattered provisions on accountability of public officers
from political harassment and pressure, the former declared that such in statutes.
independence did not insulate her Office from judicial power
constitutionally vested unto courts. The mandates of the Revised Administrative Code under the section of
the Civil Service Commission (CSC), as well as the Code of Conduct and
From this analysis, the Supreme Court continued that the Ethical Standards for Public Officials and Employees, clearly reflect the
Ombudsman’s stance with regard to the First Paragraph of Section 14 constitutional convention that public officers must, at all times, be
of R.A. No. 6770 was contrary to the powers of the Supreme Court accountable to the people.
under the Constitution. For it encroaches upon the courts
constitutional rule-making authority for one of the inherent powers That being said, this Court simply finds no legal authority to sustain
of a court is its power to issue provisional injunctive reliefs. the condonation doctrine in this jurisdiction. As can be seen from this
discourse, it was a doctrine adopted from one class of US rulings way
Based on the same aforementioned grounds, the Supreme Court also back in 1959 and thus, out of touch from — and now rendered obsolete
invalidated the Second Paragraph of Section 14 of R.A. No. 6770. by — the current legal regime. In consequence, it is high time for this
This Provision banned the whole range of remedies against issuances Court to abandon the condonation doctrine that originated from
of the Ombudsman, except a Rule 45 appeal to the Supreme Court on Pascual, and affirmed in the cases following the same, such as
pure question of law. SC adjudged that this Provision increased the Aguinaldo, Salalima, Mayor Garcia, and Governor Garcia, Jr. which were
Supreme Court’s appellate jurisdiction without its consent. all relied upon by the CA. It should, however, be clarified that this
Consequently, the Supreme Court ruled that the CA had subject matter Court’s abandonment of the condonation doctrine should be
jurisdiction over Binay, Jr.’s petition for certiorari and its resultant prospective in application for the reason that judicial decisions applying
injunctive reliefs against the Ombudsman’s preventive suspension or interpreting the laws or the Constitution, until reversed, shall form
order. part of the legal system of the Philippines.
B. Unconstitutionality of the Condonation Doctrine Consequence of Ruling

To reiterate, the third issue before the SC was whether the CA An act of a court or tribunal can only be considered as with grave abuse
committed grave abuse of discretion amounting to lack or excess of of discretion when such act is done in a capricious or whimsical exercise
jurisdiction in issuing the TRO and WPI based on condonation doctrine. of judgment as is equivalent to lack of jurisdiction. The abuse of
discretion must be so patent and gross as to amount to an evasion of
Notwithstanding the foregoing declarations of the Supreme Court, it a positive duty or to a virtual refusal to perform a duty enjoined by law,
found that the basis for the CA’s injunctive writs against the pertinent or to act at all in contemplation of law, as where the power is exercised
preventive suspension order was the doctrine of condonation. In its in an arbitrary and despotic manner by reason of passion and hostility.
resolutions granting the TRO and WPI, the CA cited Governor Garcia,
Jr., Aguinaldo, Salalima, and Mayor Garcia. With this, the ensuing course of action should have been for the CA to
resolve the main petition for certiorari on the merits. However,
During that time as issued by the CA, the condonation doctrine was still considering that the Ombudsman, on October 9, 2015, had already found
considered good law. This meant that the condonation doctrine was Binay, Jr. administratively liable and imposed upon him the penalty of
sufficient ground for the TRO and WPI, especially following Governor dismissal, which carries the accessory penalty of perpetual
Garcia, Jr. where the Supreme Court ruled that if it was established that disqualification from holding public office, for the present
the acts complained of were committed during a prior term, a public administrative charges against him, the said CA petition appears to
officer cannot be administratively charged. have been mooted.
With all matters pertaining to C.A.-G.R. S.P. No. 139453 passed upon,
the Court now rules on the final issue on whether or not the CA’s
Resolution316 dated March 20, 2015 directing the Ombudsman to
comment on Binay, Jr.’s petition for contempt in C.A.-G.R. S.P. No.
139504 is improper and illegal. The sole premise of the Ombudsman’s
contention is that, as an impeachable officer, she cannot be the subject
of a charge for indirect contempt because this action is criminal in
nature and the penalty therefor would result in her effective removal
from office.
However, a reading of the aforesaid March 20, 2015 Resolution does not
show that she has already been subjected to contempt proceedings. This
issuance, in fact, makes it clear that notwithstanding the directive for
the Ombudsman to comment, the CA has not necessarily given due
course to Binay, Jr.’s contempt petition.
HELD: WHEREFORE, the petition is PARTLY GRANTED. Under the

premises of this Decision, the Court resolves as follows:
(a) the second paragraph of Section 14 of Republic Act No. 6770
is declared UNCONSTITUTIONAL, while the policy against the
issuance of provisional injunctive writs by courts other than
the Supreme Court to enjoin an investigation conducted by
the Office of the Ombudsman under the first paragraph of
the said provision is declared INEFFECTIVE until the Court
adopts the same as part of the rules of procedure through an
administrative circular duly issued therefor;
(b) The condonation doctrine is ABANDONED, but the
abandonment is PROSPECTIVE in effect;
(c) The Court of Appeals (CA) is DIRECTED to act on respondent
Jejomar Erwin S. Binay, Jr.’s (Binay, Jr.) petition for certiorari
in C.A.-G.R. S.P. No. 139453 in light of the Office of the
Ombudsman’s supervening issuance of its Joint Decision
dated October 9, 2015 finding Binay, Jr. administratively
liable in the six (6) administrative complaints, docketed as
OMB-C-A-15-0058, OMB-C-A-150059’ OMB-C-A-15-0060’
OMB-C-A-15-0061, OMB-C-A-150062 and OMB-C-A-15-
0063; and
(d) After the filing of petitioner Ombudsman Conchita Carpio-
Morales’s comment, the CA is DIRECTED to resolve Binay, Jr.’s
petition for contempt in C.A.-G.R. S.P. No. 139504 with
utmost dispatch.
TRIESTE, SR. v. SANDIGANBAYAN (1986) 145 SCRA 508 Furthermore, petitioner was faulted because the transfer of his interest
in the corporate stock of Trigen Corporation should have been
Facts: This petition is an appeal of the decision of Sandiganbayan recorded in the Securities and Exchange Commission, but no evidence
convicting Generoso Trieste, Sr. of twelve separate violations of of this sort was presented. The consolidated comment also played up
Section 3(h) of RA 3019. The twelve separate informations are all the advertisement of Trigen Corporation in the program of the Rotary
similarly worded as the information presented: Club of Kalibo, Aklan, showing the printed name of petitioner as the
President-Manager of the said corporation.
INFORMATION: That on or about the month of July, 1980 and
sometime subsequent thereto, in the municipality of Numancia, “The impugned decision convicted petitioner for violation of
Aklan, Philippines, and within the jurisdiction of this Honorable Section 3 (h), paragraph (h) of the Anti-Graft and Corrupt Practices
Court, the abovenamed accused, being then the Municipal Mayor Act which reads as follows: “SEC. 3. Corrupt Practices of Public
and member of the Committee on Award of the Municipality of Officers."—ln addition to acts or omissions of public officers
Numancia, Aklan and as such, had administrative control of the already penalized by existing laws, the following shall constitute
funds of the municipality and whose approval is required in the corrupt practices of any public officer and are hereby declared to
disbursements of municipal funds, did then and there wilfully and be unlawful: xxx xxx xxx "(h) Directly or indirectly having
unlawfully have financial or pecuniary interest in a business, contract financial or pecuniary interest in any business, contract or
or transaction in connection with which said accused intervened or transaction in connection with which he intervenes or takes part in
took part in his official capacity and in which he is prohibited by law his official capacity, or in which he is prohibited by the Constitution
from having any interest, to wit the purchases of construction or by any law from having any interest.”
materials by the Municipality of Numancia, Aklan from Trigen Agro-
lndustrial Development Corporation, of which the accused is the ‘The elements essential in the commission of the crime are:
president, incorporator, director and major stockholder paid under (a) The public officer has financial or pecuniary interest in a
Municipal Voucher No. 211–90–10–174 in the amount of P558.80 by business, contract or transaction’
then and there awarding the supply and delivery of said materials to (b) In connection with which he intervenes in his official
Trigen Agro-Industrial Development Corporation and approving capacity.
payment thereof to said corporation in violation of the Anti-Graft
and Corrupt Practices Act.”
The petitioner stated that the prosecution failed to establish the
Except only as to the dates of the commission of the offense, presence of all the elements of the offense, and more particularly to
voucher numbers, and amounts involved. Criminal Cases Nos. 6856, adduce proof that petitioner has, directly or indirectly, a financial or
6857, 6858, 6859, 6860, 6861, and 6862 were allegedly committed pecuniary interest in the imputed business contracts or transactions.
in July, 1980; Criminal Cases Nos. 6863 and 6864, in August, 1980;
and Criminal Cases Nos. 6865, 6866 and 6867 in October, 1980. The However, when a New Solicitor General obviated such after filing a
separate vouchers involved in the twelve (12) cases are said to be Manifestation for Acquittal moving for the acquittal of Trieste upon
the following totaling to P7,730.50. acknowledging and concluding that:
After trial, the Sandiganbayan rendered the challenged decision on Petitioner has divested his interest with Trigen
November 6, 1984 convicting the petitioner in all twelve cases and in “Petitioner sought to establish that before he assumed office as
each case, he was sentenced to suffer the indeterminate penalty of mayor on March 3, 1980, he had already sold his shares with Trigen
imprisonment ranging from 3y1d as minimum to 6y1d as maximum and to his sister Mrs. Rosene Trieste Tuason. The sale was made by
further suffer perpetual disqualification from the public office, and to corresponding indorsements to her stock certificate which was duly
pay the cost of action. recorded in the stock and transfer book of the corporation.
On October 1, 1985, petitioner’s preventive suspension was lifted and “Respondent Sandiganbayan however doubts the sale because the
his reinstatement as Municipal Mayor of Numancia, Aklan was ordered same was not reported to the SEC. SEC records, as the prosecution
to take effect immediately. evidence show, do not reflect the sale and petitioner still appears
as the firm’s President.
In a supplemental pleading, it was vigorously stressed that the
petitioner did not, in any way, intervene in making the awards and “The prosecution’s evidence to establish non-divestment of
payment of the purchases in question as he signed the voucher only petitioner’s interest with Trigen is weak. Anyway, Trigen has not
after all the purchases had already been made, delivered and paid for updated its reports to the SEC since 1976. It has not even submitted
by the Municipal Treasurer. It was further pointed out that there was no its financial annual report ever since. Absence of the sales report in
bidding at all as erroneously adverted to in the twelve informations filed the SEC does not mean that the sale did not take place. Reporting
against herein petitioner because the transactions involved were the sale is not a mandatory requirement.”
emergency direct purchases by personal canvass.
Sales of stocks need not be reported to SEC
The Solicitor General filed a consolidated comment and argued the “In any event, the law only requires submission of annual financial
dismissal of the petition on the ground that the same raise factual reports, not sales or disposal of stocks (Section 141, Corporation
issues which are, therefore, non-reviewable. The earlier view taken by Code of the Philippines),
the Solicitor General’s Office was that petitioner’s evidence of
divestment of interest in Trigen Corporation, which is said to have been “Upholding the evidence of petitioner’s divestment of his interest
effected on February 25, 1980, before the petitioner assumed the with Trigen would necessarily allow him to act freely in his official
Mayorship, should have been presented at the earliest opportunity capacity in the municipality’s dealings or transactions with Trigen.
before the Tanodbayan and because this was not done by him the That in itself is sufficient to acquit him of the crimes charged.”
resolution of the Tanodbayan finding a prima facie case against (Rollo, pp, 299–300).
petitioner should be sustained.
In the matter of the alleged intervention of petitioner, the OSG itself vouchers were signed by Mayor Trieste, the matcriate had already been
subscribes to and on its own volition place on the record: delivered and paid by the municipality to Trigen? xxx xxx xxx
“A. Yes, sir.
“Q. Now what exhibits particularly do you know were issued by Trigen to
Prosecution failed to prove charges;
indicate that payments were made prior to the signing of the municipal
evidence discloses absence of bidding and award vouchers by Mayor Trieste?
“The prosecution’s lone witness, Treasurer Aniceto Vega, testified “A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H. xxx xxx xxx
that there never was a public bidding conducted because all the “Q. Now, Mr. Maravilla, aside from these prosecution’s exhibits which are
transactions were made by direct purchases from Trigen. Trigen receipts showing payments long before the municipal vouchers were
prepared, what can you say about the other municipal vouchers in this case
in reference to payments made by Trigen to the municipality?
“In the absence of a public bidding and as emphatically declared
“A. Official receipts issued by Trigen also indicate that when municipal
by the prosecution’s sole witness Vega that all the transactions
vouchers marked Exhibits E, B, C, D, F, G, H, I was prepared, they had already
were on direct purchases from Trigen, how can one ever imagine been delivered and the amounts indicated therein were already prepared by
that petitioner has awarded the supply and delivery of construction the municipal treasurer.
materials to Trigen as specifically charged in the twelve (12) “Q. Did you say already made by the municipal treasurer—the amounts
informations? The charges are of course baseless and even were already paid by the municipal treasurer?
contradict the evidence of the prosecution itself. “A. Already paid.
“Q. Who disbursed the funds evidenced by the Trigen official receipts?
''A. The municipal treasurer, then Mr. Vega.
“Even the respondent Court finally found that petitioner did not
“Q. Now, do you know why Mr. Vega asked that those municipal vouchers
intervene during the bidding and award, which of course is a false be nevertheless signed in spite of the fact that he knew that the amounts
assumption because of Vega’s testimony that there was no public had already been disbursed and paid by him to Trigen?
bidding at all “A. He said that the municipal vouchers for record purposes is necessary to
be signed by the mayor.”
Respondent Court said: “x x x x. In short, accused’s intervention may
not be present during the bidding and award, but his liability may “Inasmuch as Treasurer Vega signed and paid the vouchers after
also come in when he took part in said transactions such as signing the materials were delivered, petitioner’s signature on the vouchers
the vouchers under certifications 1, 2 and 3 thereof, to make it after payment is not, we submit the kind of intervention
appear that the transactions were regular and proper.” (Resolution contemplated under Section 3(h) of the Anti-Graft Law.
dated March 11, 1985 denying petitioner’s motion for
reconsideration/new trial, page 7). What is contemplated in Section 3(h) of RA 3019 is the actual
intervention in which one has financial or pecuniary interest in
No evidence to prove Trieste approved payment order that liablity may attach. The official need not dispose his
“Now, did petitioner intervene by approving payments to Trigen as shares in the corporation as long as he does not do anything for
also charged in the information? Can there be intervention after the firm in its contract with the office. For the law aims to prevent
payment. the dominant use of influence, authority and power.
“Vega testified that petitioner signed the twelve (12) municipal There is absolutely no evidence that petitioner had, in his capacity
vouchers (Exhibits A to L) for the purchase and payment of as Mayor, used his influence, power and authority in having the
construction materials. It was sometime after delivery of the transactions given to Trigen. He didn’t ask anyone—neither
construction materials that he (Vega) signed and paid the twelve Treasurer Vega nor Secretary Maravilla for that matter, to get, the
(12) municipal vouchers (pages 5 to 7), decision of respondent construction materials from Trigen.
Sandiganbayan dated November 2, 1984).
Trigen did Not Gain any Undue Advantage in the Transaction
The prosecution has not presented evidence to show as to when Petitioner should not be faulted for Trigen’s transaction with the
petitioner signed the twelve (12) municipal vouchers. But it can municipality, which by the way, has been dealing with it even
safely be assumed as a matter of procedure that petitioner had before petitioner had assumed the mayorship on March 3, 1980.
signed the voucher after Treasurer Vega signed and paid them. Personal canvasses conducted found that Trigen’s offer was the
(Rollo, pp. 301–303) lowest, most reasonable, and advantageous to the municipality.
Testimonial and Documentary Evidence Confirms that Considering the correct facts now brought to the attention of this Court
Petitioner Signed Vouchers After Payment by the Solicitor General and in view of the reassessment made by that
“Additional facts which respondent Court failed to consider and Office of the issues and the evidence and the law involved, the Court
which could have altered the outcome of the case in the following takes a similar view that the affirmance of the decision appealed
uncontroverted testimony of Josue Maravilla: from cannot be rightfully sustained.
“Q. When these municipal vouchers were prepared by the municipal The conscientious study and thorough analysis made by the Office of
treasurer, as you said, and then presented to Mayor Trieste for his signature, the Solicitor General in this case truly reflects its consciousness of its
were the purchases in question already paid? role as the People’s Advocate in the administration of justice to the end
“A. They had already been paid for, sir. that the innocent be equally defended and set free just as it has the
“Q. Previously, prior to the signature of Mayor Trieste?
task of having the guilty punished. This Court will do no less and,
“A. Yes, sir.
therefore, accepts the submitted recommendation that the decision
“A.J. ESCAREAL: “Q. Under what authority were they paid?
“A. Under official receipt issued by Trigen. and resolution in question of the respondent Sandiganbayan be
“Q. Who authorized the payment? reversed and that as a matter of justice, the herein petitioner be
“A. The municipal treasurer who paid the materials. entitled to a judgment of acquittal.
“ATTY. CONSULTA: “Q. You said they had already been paid for. Do you know HELD: The decision of the SB finding Trieste, Sr. guilty of Section 3(h)
of any receipts issued by Trigen to indicate that at the time these municipal
of RA 3019 is hereby set aside, he is acquitted.
RODILLAS v. SANDIGANBAYAN just about 3 feet from the window and noticed that outside of the
window there was a concrete eave
Facts: This petition brought by Alfredo Rodillas y Bondoc asking for
reversal of the decision of the SB for him being found guilty of the
doubt of crime of Infidelity in the Custody of Prisoner through
Negligence (Article 224).
INFORMATION: That on or about the 27th day of March, 1980, in

the City of Caloocan, Philippines, and within the jurisdiction of this
Honorable Court, said accused, being then a policeman duly
appointed and qualified as such, hence a public officer, specially
charged with the duty of keeping under his custody and vigilance
and of conducting and delivery from the City Jail, Caloocan City to
the Court of First Instance, Branch XXXIV, Caloocan City and return,
one Zenaida Sacris de Andres, a detention prisoner being tried for
violation of Section 4, R.A. No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, under Crim. Case No. C-12888, did
then and there with great carelessness and unjustifiable negligence,
allow and permit said Zenaida Sacris de Andres to have snacks and
enter the comfort room at the second floor of the Genato Building,
Rizal Avenue, Caloocan City after the hearing of said case, without
first ascertaining for himself whether said comfort room is safe and
without any egress by which the said detention prisoner could
escape, thereby enabling said Zenaida Sacris de Andres, to run away
and escape thru the window inside the comfort room, as in fact she
did run away and escape from the custody of said accused.
Rodillas here is a patrolman of the Integrated National Police Force of

Caloocan City and assigned with the jail section thereof. On March 27,
1980, when he reported for work he was made to escort Zenaida Sacris
de Andres, a detention prisoner, before the sala of Judge Pardo to face
trail for violation of Dangerous Drugs Act of 1972.
He and the detainee proceeded to the court building and arrived

thereat between 8:30 and 9:00 o’clock in the morning. While waiting for
the arrival of the judge at the courtroom, Pat. Orlando Andres, who
happened to be in the court and a relative of the husband of said
detention prisoner Zenaida, approached the accused and requested the
latter if he could permit Zenaida to talk to her husband. The accused
consented and Zenaida de Andres had a short talk with her husband.
After a short while, the presiding judge deferred the decision against
her because of a new Presidential Decree revising some provisions
regarding violations of the Dangerous Drugs Act.
After the court had already adjourned, the husband of Zenaida

requested the accused to allow them to have lunch as they were already
very hungry. He consented to the request and they proceeded to the
canteen located at the mezzanine floor of the court building (Exhibit 1).
He took a seat beside Zenaida and Pat. Andres while the relatives of
said detainee were seated at a separate table. While eating, the husband
of Zenaida asked him if he could accompany his wife to the comfort room
as she was not feeling well and felt like defecating. The accused
accompanied Zenaida and a lady companion to the ladies’ comfort room
located at the second floor of the building (Exhibit 2). Zenaida and her
lady companion entered the comfort room, while he stood guard along
the alley near the ladies’ comfort room facing the door thereof (Exhibit
5). Not long after, the lady companion of Zenaida came out of the
comfort room and told Him that she was going to buy sanitary napkins
for Zenaida as the latter was then bleeding and had a menstruation and
could not go out of the comfort room. “After ten minutes elapsed
without the lady companion of Zenaida coming back, the accused
became suspicious and entered the comfort room. To his surprise; he
found Zenaida no longer inside the comfort room. He noticed that the
window of said comfort room was not provided with window grills. He
tried to peep out of the window by stepping on the flush tank which is
CRIMINAL LAW II People v. Genosa GR 135191 2014

Absence of marriage certificate. Without the marriage certificate
REVISED PENAL CODE
it can be proved by testimony of the witnesses and the victim
herself; oral testimonies if not objected for purposes of
TITLE EIGHT
convicting accused of parricide.
CRIMES AGAINST PERSONS
Relationship is a Qualifying Circumstance: It qualifies homicide
CHAPTER ONE to parricide it must be alleged in the criminal information, you
DESTRUCTION OF LIFE can only indict of homicide according to the case of People v.
Jumawan (GR L-50925 1982). The fact of relationship was not
Crimes Against Persons alleged in the information.
1. Destruction of Life
2. Physical Injuries Q. Is a pending case for declaration of nullity of marriage
3. Rape a prejudicial question for the crime of parricide?
The intent to kill, the death of the victim is the conclusive PIMENTEL v. PIMENTEL GR 1702060, September 13, 2010
evidence which cannot be overcome if the victim dies. If the A case of annulment is not a prejudicial question in the case for
victim does not die, you must determine the intent to kill. If no parricide. The relationship between the offender and the victim
intent to kill, then go to physical injuries, then determine the is a key element in the crime of parricide, which punishes any
gravity of the injury for such on capacity to work. person who shall kill his father, mother, or child, whether
• Physical injuries are a formal crime, the existence legitimate or illegitimate, or any of his ascendants or
depends on the result. descendants, or his spouse.
Section One. – Parricide, Murder, Homicide The relationship between the offender and the victim
distinguishes the crime of parricide from murder or homicide.
However, the issue in the annulment of marriage is not similar
ARTICLE 246. Parricide. – Any person who shall kill his
or intimately related to the issue in the criminal case for
father, mother, or child, whether legitimate or illegitimate, or
any of his ascendants or descendants, or his spouse, shall be parricide.
guilty of parricide and shall be punished by the penalty of
reclusion perpetua to death. Further, the relationship between the offender and the victim is
not determinative of the guilt or innocence of the accused.
ELEMENTS OF PARRICIDE (KAFMCADS)
The issue in the civil case for annulment of marriage under
1. The person is killed.
Article 36 of the Family Code is whether petitioner is
2. That the deceased is killed by the accused.
psychologically incapacitated to comply with the essential
3. That the deceased is the father, mother, or child,
marital obligations. The issue in parricide is whether the
whether legitimate or illegitimate, or a legitimate
accused killed the victim.
other ascendant or descendant or legitimate spouse
of the accused.
In this case, since petitioner was charged with frustrated
parricide, the issue is whether he performed all the acts of
Relationship as an Essential Element
execution which would have killed respondent as a
The relationship which should by three important aspects:
consequence but which, nevertheless, did not produce it by
(1) legitimacy; parents, children must be legitimate or
reason of causes independent of petitioners will.
illegitimate; ascendants, descendants must be
legitimate;
At the time of the commission of the alleged crime, petitioner
(2) direct line not by collateral;
and respondent were married. The subsequent dissolution of
(3) by consanguinity not affinity those relatives in law are
their marriage, in case the petition in Civil Case No. 04-7392 is
not covered under Article 246.
granted, will have no effect on the alleged crime that was
committed at the time of the subsistence of the marriage.
Knowledge is Immaterial
The children must not be less than three days old or 72 hours,
In short, even if the marriage between petitioner and
otherwise it shall be infanticide. Best evidence for spouses is the
respondent is annulled, petitioner could still be held criminally
marriage certificate, without such, you can still prove
liable since at the time of the commission of the alleged crime,
relationship.
he was still married to respondent.
The fact of relationship must be alleged in the information
In short, the case of annulment is not a prejudicial question for
regardless it be considered as a qualifying circumstance of
the crime of parricide for at the commission of the crime of
merely an aggravating circumstance.
parricide they are both husband and wife.
ARTICLE 247. Death or physical injuries inflicted under M-16 rifle, it took him 1 hour to find him, and found him in a
exceptional circumstances. – Death or physical injuries mahjong place. He shouted and fired successive shots to
inflicted under exceptional circumstances. — Any legally Kingsley Go, the adjacent room, there were spouses who
married person who, having surprised his spouse in the act of sustained injuries.
committing sexual intercourse with another person, shall kill
any of them or both of them in the act or immediately Issue: What is meant by immediately thereafter? Is the lapse of
thereafter, or shall inflict upon them any serious physical
one hour took the case outside of Article 247?
injury, shall suffer the penalty of destierro.
If he shall inflict upon them physical injuries of any other The Revised Penal Code, in requiring that the accused "shall kill
kind, he shall be exempt from punishment. any of them or both of them . . . immediately" after surprising
his spouse in the act of intercourse, does not say that he should
These rules shall be applicable, under the same commit the killing instantly thereafter. It only requires that the
circumstances, to parents with respect to their daughters death caused be the proximate result of the outrage
under eighteen years of age, and their seducer, while the
overwhelming the accused after chancing upon his spouse in
daughters are living with their parents.
the basest act of infidelity. But the killing should have been
Any person who shall promote or facilitate the prostitution of actually motivated by the same blind impulse and must not
his wife or daughter, or shall otherwise have consented to the have been influenced by external factors. The killing must be
infidelity of the other spouse shall not be entitled to the the direct by-product of the accused's rage.
benefits of this article.
What is the liability of Francisco to the Aparado Spouses?
ELEMENTS (MaPaSuSeKiSeNo) Francisco convicted Abarca of reckless imprudence resulting to
1. That a legally married person or a parent surprises his physical injuries, you only convict him for a crime committed by
spouses or his daughter, the latter under 18 years of means of dolo if the act from which it originates is a felony by
age and living with him, in the act of committing itself, but the problem, that Article 247 is not a felony thus the
sexual intercourse with another person. principle of Article 4, what applies is the concept on quasi-
2. That he or she kills any or both, of them or inflicts offenses under Article 365 of the RPC, it results from a lawful
upon any or both of them any serious physical injury act committed by means of negligence. Not a felony but a
in the act or immediately thereafter. protective measure but an absolutory circumstance.
3. That he has not promoted or facilitated the
prostitution of his wife or daughter, or that he or she The act of killing Go was lawful but was negligent in killing such
has not consented to the infidelity of the other spouse. act. He did not bother to check whose still in the mahjong case,
shouting “Ang walay labot pagawas.”
Article 207 is Not a Felony
This is to protect spouses from killing the spouse and the PEOPLE v. OYANIB
paramour of the spouse in the act of doing sexual intercourse Received a letter from school that son had a failing grade, he
or immediately thereafter (People v. Abarca, 1987). wanted to ask the wife personally to attend the conference of
the son, he went to the residence of the wife, when opened he
Two Time Elements heard sounds of romance, caught with paramour doing such
1. Time of surprising paramour and the erring spouses – it with his wife.
must be in the act of doing sexual intercourse, it must
be the penetration of penis to the valine for purposes Upon seeing him, Jesus kicked Manolito in the cheek. Manolito
of Article 247. The one surprised must be paramour immediately stabbed Jesus. Though Jesus was 5'9" in height
and the erring spouse, it should not be the victim. and weighed about 70 kg., the suddenness of the assault
2. Time of the infliction of the serious physical injuries or caused him to lose his balance and fall down. Manolito took
the time of killing – in the act or immediately advantage of this opportunity and stabbed Jesus in the
thereafter, no problem if you kill them right there and stomach. Tita left the room upon seeing Manolito, only to come
then. back armed with a Tanduay bottle. She hit Manolito in the head,
while at the same time shouting "kill him Jake, kill him Jake.
People v. Abarca meaning of Immediately Thereafter Issue: Whether or not the fact the spouses are living separately,
Francisco and Jenny; latter an illicit relationship with Go. and wife is publicly advertising of being in several relationships
Francisco was about to fetch their daughter, he had to ride a with other men affect Article 247.
bus going there, he went back to the station in the afternoon,
the bus had engine trouble. He went home, Jenny who did not No. But killing the errant spouse as a purification is so severe
know, invited Kingsley Go, “can you come to the house?” as that it can only be justified when the unfaithful spouse is
caught in flagrante delicto; and it must be resorted to only with
When Francisco came home, the two were in the act of sexual great caution so much so that the law requires that it be
intercourse, peeping in the top of cabinet. When they inflicted only during the sexual intercourse or immediately
discovered, Francisco jumped and away, for he was looking a thereafter.
fire away, he went to the house of his friend and borrowed an
NOTE: No application mitigating or aggravating circumstances killing of any person which is not parricide or infanticide
with Article 247 because it is not felony. provided that any of the following circumstances present. In
murder the victim must to consummate the crime. If the victim
Q. What if there was connivance with a friend to have sexual is not killed, it is either frustrated or attempted murder.
intercourse with the spouse?
Rules for the Application of Circumstances
You cannot do that, Article 247, provides any person who shall (a) Murder will exist with only one of the circumstances
promote or facilitate the prostitution of his wife or daughter, or described in Article 248. When more than one of said
shall otherwise have consented to the infidelity of the other circumstance are present the others must be
spouse shall not be entitled to the benefits of this article. It considered as generic aggravating. Only one is
applies to daughters under 18 living with parents. required to qualify homicide to murder.
(b) When other circumstances are absorbed or included in
It is a matter of defense, the burden is shifted to the accused, one qualifying circumstance, they cannot be
it is akin to self-defense, you have already admitted to the act, considered as generic aggravating.
thus you must prove such exceptional circumstance. (c) That any of the qualifying circumstances enumerated
in Article 248 must be alleged in the information.
NOTE: The killing must be direct by-product of the accused’s
rage. The killing of his spouse by the accused must be by reason I.
of having surprised her in the act of sexual intercourse with (a) With treachery
another person. (b) Taking advantage of superior strength
(c) With the aid of armed men
Penalties: (d) Employing means to weaken the defense
1. When death is inflicted – destierro; (e) Means or persons to insure or afford impunity
2. When physical injuries – no criminal liability.
A. Treachery (from Criminal Law 1 Notes)
ARTICLE 248. Murder. – Any person who, not falling within Treachery, whenever present and alleged in the information,
the provisions of Article 246, shall kill another, shall be guilty qualifies the killing of the victim to the category of murder.
of murder and shall be punished by reclusion perpetua to
death if committed with any of the following attendant ARTICLE 14(16). TREACHERY
circumstances: That the act be committed with treachery (alevosia).
1. With treachery, taking advantage of superior
strength, with the aid of armed men, or employing There is treachery when the offender commits any of the crimes
means to weaken the defense, or of means or against the person, employing means, methods or forms in the
persons to insure or afford impunity; execution thereof which tend directly and specially to insure its
2. In consideration of a price, reward, or promise; execution, without risk to himself arising from the defense the
3. By means of inundation, fire, poison, explosion, offended party might make.
shipwreck, stranding of a vessel, derailment or
assault upon a railroad, fall of an airship, by means ELEMENTS OF TREACHERY
of motor vehicles, or with the use of any other 1. That at the time of the attack, the victim was not in a
means involving great waste and ruin; position to defend himself; and
4. On occasion of any of the calamities enumerated in 2. That the offender consciously adopted the particular
the preceding paragraph, or of an earthquake, means, method or form of attack employed by him.
eruption of a volcano, destructive cyclone,
epidemic, or other public calamity; The Victim Was Not in a Position to Defend Himself
5. With evident premeditation; The person is not in the position to defend himself, like when their
6. With cruelty, by deliberately and inhumanly hands are tied at the back before they were killed, or shot from
augmenting the suffering of the victim, or outraging behind while dancing.
or scoffing at his person or corpse.
(As amended by RA 7659)
RUSTIA v. PEOPLE GR 208351 (2016)
In a criminal prosecution for murder qualified by the attendant
ELEMENTS OF MURDER (KAQuaNo) circumstance of treachery, the means, method, or form of the
1. That a person is killed. attack must be shown to have been consciously and
2. That the accused killed him. deliberately adopted by the offender before the same can be
3. That the killing was attended by any of the qualifying considered to qualify the killing. Otherwise, the killing amounts
circumstances mentioned in Article 248. only to homicide.
4. The killing is not parricide or infanticide.
The offender attempted to grant the grapple the gun, he
Murder surrendered and then shot, there was no conscious taking such
Homicide qualified by circumstances under Article 248, but not because there was a heated argument, there must be conscious
under Article 246. These circumstances should be intelligently and deliberate adoption.
employed by the offender himself. Murder is the unlawful
Illustration of the Use of Poison This aggravates the crime done by two or more principals,
Poison precisely for the purpose of killing the person. Example which is considered in a conspiracy. If affects not only the
boyfriend and girlfriend, there was sexual enhancers (Birada person who received the price or reward but also the person
capsules), unknown to her there was ingredient such the who gave it.
boyfriend allergic to who had heart disease, who died after
drinking. There must be intent to kill to be treacherous. The motive, the reason for the crime is really this price, the
reward, or the promise. It is not always money. The wording is
There was no intent to kill only intent to arouse. Poison cannot such that it seemingly aggravates the penalty of the one who
be appreciated such as circumstance for it was not consciously committed the crime.
applied.
III.
NOTE: Killing of a child of tender years is murder. By means of fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon a railroad, fall of an
B. Taking Advantage of Superior Strength airship, by means of motor vehicles with the use of any
This is to purposely use excessive force out of the means of other means involving great waste or ruin.
defense available to the person attacked. This is incompatible
with obfuscation and passion or unexpected quarrel for they By Means of Fire: Arson or Murder?
did not take advantage of their superior strength. This is not For example, you burn the building and a person dies, you look
presumed and must be proven with evidence. at the primordial intent.
• If intent to kill, then murder.
C. With the Aid of Armed Men • If intent to burn building, arson.
This differentiates from the circumstance of a band because • If used to burn the body, murder/homicide and arson.
under this, it does not require to be four, thus if less than four
this can be considered. They have acted together in a band, Murder by Means of Poison
here it can be indirectly. Treachery and evident premeditation are inherent in murder by
poison and such, they cannot be considered as aggravating
D. Employing Means to Weaken the Defense circumstances for the crime.
This is specific aggravating circumstance because it is
applicable only to crimes against persons. Usual example is IV.
throwing sand, throwing a cloak over the head. On occasion of any of the calamities enumerated
in the preceding paragraph, or of an earthquake,
E. Employing Means/Persons to Insure or Afford Impunity eruption of a volcano, destructive cyclone,
When means or persons are employed by the accused who epidemic, or other public calamity.
killed the deceased to prevent his being recognized, or to
secure himself against detection and punishment, he may be
On Occasion
held liable for murder. You need not employ the calamity, you take advantage of the
occasion due to the confusion and use it to your benefit to
NOTE: Treachery absorbs the following circumstances:
facilitate killing the person.
1. Craft
2. Abuse of Superior Strength Killing a person on the occasion of intimidation, shipwreck,
3. Nighttime eruption of a volcano, epidemic, or any other public calamity
4. Aid of Armed Men
when taken advantage of by the offender, qualifies the crime.
5. Cuadrilla or Bank
6. Employing Means to Weaken the Defense V.
7. Disregard of Age or Sex (CANACED) With evident premeditation
II.
Evident Premeditation
In consideration of a price, reward of promise
You look at the time when offender decided to commit the
crime, the sufficient lapse of time to think sufficiently for the
NOTE: It covers the giver of the price, reward or amount.
commission of the crime and acts showing that he
Nocturnity is not mentioned, but it may be a manifestation of
determination of doing the crime.
treachery, by taking advantage the cover of the dark.
EVIDENT PREMEDITATION
The person who received the price or reward or who accepted This refers to the ways, because it implies deliberate planning of the
a promise of price or reward would not have killed the victim act before executing it. This is directly opposite from obfuscation.
were it not for the price, reward or promise. Such person is a This is considered a specific aggravating circumstance because this
principal by direct participation. The one who gave the price or is applicable to crimes against persons only.
reward or who made the promise is a principal by induction.
It is preceded by cool thought and reflection. The execution of the

ARTICLE 251. Death cause in a tumultuous affray. – When,
criminal act must be preceded by full thought and reflection upon
while several persons, not composing groups organized for
the resolution to carry out the criminal intent during the space ad
the common purpose of assaulting and attacking each other
time sufficient to arrive at a calm judgment.
reciprocally, quarrel and assault each other in a confused and
tumultuous manner, and in the course of the affray someone
ELEMENTS is killed, and it cannot be ascertained who actually killed the
1. The time when the offender determined to commit the crime; deceased, but the person or persons who inflicted serious
2. An act manifestly indicating that the culprit has clung to his physical injuries can be identified, such person or persons
determination; shall be punished by prision mayor.
3. A sufficient lapse of time between the determination and
execution, to allow him to reflect upon the consequences of If it cannot be determined who inflicted the serious physical
his act and to allow his conscience to overcome the resolution injuries on the deceased, the penalty of prision correccional
of his will. in its medium and maximum periods shall be imposed upon
all those who shall have used violence upon the person of the
victim.
VI.
With cruelty, by deliberately and inhumanly ELEMENTS OF (SNQKCI)
augmenting the suffering of the victim, 1. That there be several persons.
or outraging or scoffing at his person or corpse. 2. That they did not compose groups organized for the
common purpose of assaulting and attacking each
Cruelty; Augmenting Physical Suffering other reciprocally.
Killing a person by chopping his head, using a nail cutter, 3. That these several persons quarreled and assaulted
instead using a sword and made sure such pain, and taking one another in a confused and tumultuous manner.
pleasure in the extreme pain 4. That someone was killed in the course of the affray.
5. That it cannot be ascertained who actually killed the
Outraging or Scoffing to the Corpse deceased.
Only circumstance to be present after killing the person, like 6. That the person or persons who inflicted serious
chopping him or hanging body to the overpass. This refers to physical injuries or used violence can be identified.
the irreverence or disrespect to the body of the deceased.
Tumultuous Affray Exists With At Least Four Persons
ARTICLE 249. Homicide. – Any person who, not falling Only when the offender cannot be identified. What if the
within the provisions of article 246, shall kill another, without aggressors are organized into groups? Article 251 cannot apply,
the attendance of any of the circumstances enumerated in the you can apportion liability by conspiracy. The participants must
next preceding article, shall be deemed guilty of homicide and not be organized into groups the main assailant could not be
be punished by reclusion temporal. identified.
ELEMENTS OF HOMICIDE (KWIN) When There are Two Identified Groups of Men
1. That a person was killed; who Assaulted Each Other, No Tumultuous Affray
2. The accused killed him without any justifying If it can be shown that there were two identified groups of men,
circumstance; it is shown that there is no confusion in the aggression or the
3. That the accused had the intention to kill, which is defense. The aggressors helped on another to inflict upon the
presumed; deceased the fatal blow. The quarrel here was between two
4. That the killing was not attended by any of the well-known groups of men.
qualifying circumstances of murder, or by that of
parricide or infanticide. Who are Liable in a Death in a Tumultuous Affray?
1. The person or persons who inflicts the serious physical
Absent the qualifying circumstances it is murder. injuries are liable;
2. If it is not known who inflicted the serious physical
ARTICLE 250. Penalty for frustrated parricide, murder, or injuries on the deceased, all the persons who used
homicide. – Penalty for frustrated parricide, murder, or violence upon the persons of the victim are liable, but
homicide. — The courts, in view of the facts of the case, may with lesser liability.
impose upon the person guilty of the frustrated crime or
parricide, murder, or homicide, denned and penalized in the If the participant in the affray who inflicted the serious physical
preceding articles, a penalty lower by one degree than that injuries is known, he alone is liable for death caused in a
which should be imposed under the provisions of Article 50.
tumultuous affray. Those who used violence only, without
The courts, considering the facts of the case, may likewise inflicting serious physical injuries, may be held liable for the acts
reduce by one degree the penalty which under Article 51 or acts actually performed by them. So those who used violence
should be imposed for an attempt to commit any of such upon the person of the victim are liable for death caused in
crimes. tumultuous affray only if it cannot be determined.
ARTICLE 252. Physical injuries in a tumultuous affray. – ARTICLE 254. Discharge of firearms. – Any person who
When in a tumultuous affray as referred to in the preceding shall shoot at another with any firearm shall suffer the
article, only serious physical injuries are inflicted upon the penalty of prision correccional in its minimum and medium
participants thereof and the person responsible therefor periods, unless the facts of the case are such that the act can
cannot be identified, all those who appear to have used be held to constitute frustrated or attempted parricide,
violence upon the person of the offended party shall suffer murder, homicide, or any other crime for which a higher
the penalty next lower in degree than that provided for the penalty is prescribed by any of the articles of this code.
physical injuries so inflicted.
When the physical injuries inflicted are of a less serious ELEMENTS OF DISCHARGE OF FIREARMS (DiNo)
nature and the person responsible therefor cannot be 1. That the offender discharges a firearm against or at
identified, all those who appear to have used any violence another person.
upon the person of the offended party shall be punished by 2. That the offender has no intention to kill that person.
arresto mayor from five to fifteen days.
Discharge of Firearms
ELEMENTS (TPRV) Simply put, you aim a firearm, fired without hitting the person
1. That there is a tumultuous affray as referred to in the and fired without intent to kill, if there was it can be under
preceding article. attempted homicide or parricide. Depending of the nature of
2. That a participant or some participants thereof suffer the wounds. Usually the intention to scare or harass the victim,
serious physical injuries or physical injuries of a less not to kill the victim.
serious nature only.
3. That the person responsible thereof cannot be If you fire into the air, it is not under Article 254, it is alarms and
identified. scandal, if it has caused disturbance to the public. If you just
4. That all those who appear to have used violence upon point, it may be grave threats or coercion.
the person of the offended party are known. • Grave threats if future demand
• If instantaneous demand, grave coercion.
When a person is killed in the course of the affray and the one
who inflicted serious physical injuries is known, Article 252 is Section Two. – Infanticide and Abortion
not applicable to those who used violence, because that article
applies when in a tumultuous affray, only serious physical ARTICLE 255. Infanticide. – The penalty provided for
injuries or physical injuries of a less serious nature are inflicted. parricide in Article 246 and for murder in Article 248 shall be
imposed upon any person who shall kill any child less than
Distinction from 252 three days of age.
Aside from death and physical injuries, is the scope of the
If the crime is penalized in this article be committed by the
intended victims. In 251 it utilizes the word “someone” it need
mother of the child for the purpose of concealing her
not be a participant in the affray, he can be passerby or dishonor, she shall suffer the penalty of prision mayor in its
spectator. Article 252 used the word “participant”, only a medium and maximum periods, and if said crime be
participant it does not cover spectators. committed for the same purpose by the maternal
• Slight physical injuries not included in 252. grandparents or either of them, the penalty shall be reclusion
temporal.
ARTICLE 253. Giving assistance to suicide. – Any person
who shall assist another to commit suicide shall suffer the ELEMENTS OF INFANTICIDE (KLA)
penalty of prision mayor, if such person lends his assistance 1. That a child was killed;
to another to the extent of doing the killing himself, he shall 2. That the deceased child was less than three days or
suffer the penalty of reclusion temporal. However, if the 72 hours of age; and
suicide is not consummated, the penalty of arresto mayor in
3. The accused killed the said child.
its medium and maximum periods shall be imposed.
Infanticide
ACTS PUNISHABLE (ALe) It is the killing of any child less than three (3) days of age,
1. By assisting another to commit suicide, whether the whether the killer is the parent or grandparent, any other
suicide is consummated or not. relative of the child or stranger.
2. By lending his assistance to another to commit suicide
to the extent of doing the killing himself. The gravamen or the basis of Article 255 is not relationship, but
of age different from parricide, the child may not be related to
NOTE: Euthanasia is still considered murder in the Philippines, years, less than three days of age. The reckoning point is the
a person who attempts to commit suicide is not criminally age of the infant. The child was killed was less than three days
liable. If a pregnant woman attempts to commit suicide but of age. In any case, it would constitute murder, it is helpless, it
results to an abortion, she is not criminally liable for the act cannot mount any defense, any attack to a child is treacherous.
because the attempted act is not liable. Mitigating circumstance of the mother to conceal dishonor as
well as the maternal grandparents.
To constitute infanticide, the child must be born alive. It must Unintentional Abortion; Committed only by Violence
be expelled from the womb and must be able to sustain life. Unintentional abortion can only be committed by violence not
Correlate with Article 40 of the Civil Code, if it intra-uterine life by intimidation. There must be physical violence involved, as
of less than seven months but killed within 24 hours, it was distinguished from Article 256.
killed the crime is abortion.
Main Difference of Intentional or Unintentional
Mitigating Circumstances The primordial intent of the offender, and abortion results:
Only the mother and the maternal grandparents of the child are
entitled to the mitigating circumstances of concealing the PEOPLE v. SALUFRANIA (1988)
mother’s dishonor. The husband his eight-month pregnant wife; husband boxed
wife, wife fell down the floor, he choked the wife until she died,
NOTE: No crime of infanticide is committed if the child has been the son was the witness of such. The husband was husband with
dead or if, although born alive, it could not sustain an parricide with intentional abortion.
independent life when it was killed.
SC affirmed the conviction for parricide, the issue remains with
ARTICLE 256. Intentional Abortion. – Any person who shall respect with the correctness of the charge of intentional
intentionally cause an abortion shall suffer: abortion.
1. The penalty of reclusion temporal, if he shall use any
violence upon the person of the pregnant woman; It could have not been intentional, Mere boxing on the stomach,
2. The penalty of prision mayor, if, without using taken together with the immediate strangling of the victim in a
violence he shall act without the consent of the fight, is not sufficient proof to show an intent to cause an
woman.
abortion. In fact, appellant must have merely intended to kill
and maximum, if the woman shall have consented. the victim but not necessarily to cause an abortion. It is merely
an incident of the attack taken against the victim.
ELEMENTS (PreVAADI) Q. Suppose the husband gave to his wife a bitter substance
1. That there is a pregnant woman; because she was suffering from stomach trouble, for the purpose
2. That violence is exerted, or drugs or beverages to cure such stomach trouble, but she suffered an abortion as a
administered, or that the accused otherwise acts upon result. Is the husband liable for abortion?
such pregnant woman;
3. That as a result of the violence, drugs, or beverages No. Abortion was not intended, and it could not be
upon her, or any other act of the accused, the fetus unintentional abortion because no violence was used. Thus, if
dies, either in the womb or after having expelled there is no intention to cause abortion nor violence, Article 256
therefrom; or Article 257 does not apply, no abortion of any kind.
4. That the abortion is intended.
ARTICLE 258. Abortion practiced by the woman herself or

Intentional Abortion
by her parents. – The penalty of prision correccional in its
It is the willful killing of the fetus in the uterus or the violent medium and maximum periods shall be imposed upon a
expulsion of the fetus from the maternal womb which results in woman who shall practice an abortion upon herself or shall
the death of the fetus. consent that any other person should do so.
It may be committed whether the woman has consented to the Any woman who shall commit this offense to conceal her
abortion. (1) violence; (2) without violence; (3) administration of dishonor shall suffer the penalty of prision correcional in its
medications or beverages. If woman has consented the woman minimum and medium periods.
is punishable under Article 258 of the RPC.
If this crime be committed by the parents of the pregnant
woman or either of them, and they act with the consent with
ARTICLE 257. Unintentional abortion. – The penalty of said woman for the purpose of concealing her dishonor, the
prision correccional in its minimum and medium periods shall offenders shall suffer the penalty of prision correccional in its
be imposed upon any person who shall cause an abortion by medium and maximum periods.
violence, but unintentionally.
ELEMENTS (AIPOP)
ELEMENTS OF UNINTENTIONAL ABORTION (PreWiViDi) 1. That there is a pregnant woman who has suffered an
1. That there is a pregnant woman; Abortion;
2. That violence is used upon such pregnant woman 2. That the abortion is Intended; and
without intending an abortion; 3. That the abortion is caused by:
3. That the violence is intentionally exerted; and a. The Pregnant woman herself;
4. That as a result of the violence the fetus dies, either in b. Any Other person, with her consent; or
the womb or after having been expelled therefrom. c. Any of her Parents, with her consent, for the
purpose of concealing her dishonor.
Applicability of the Provision Section Three. – Duel

Note that only the woman or any of her parents is liable under
Article 258, if the purpose of the parents is to conceal her ARTICLE 260. Responsibility of participants in a duel. –
dishonor. To specific, Article 258 covers: The penalty of reclusion temporal shall be imposed upon any
1. Abortion committed by the woman upon herself or by person who shall kill his adversary in a duel.
any other person with her consent.
2. Abortion by the woman upon herself to conceal her If he shall inflict upon the latter physical injuries only, he shall
dishonor. suffer the penalty provided therefor, according to their
nature.
3. Abortion by any of the parents of the woman with the
latter’s consent to conceal her dishonor. In any other case, the complainants shall suffer the penalty of
arresto mayor, although no physical injuries have been
The person liable under Article 258(1) is the woman only. The inflicted.
other person who caused the abortion on her with her consent
is liable under Article 256. If the purpose of the parents was not The second shall in all events be punished as accomplices.
to conceal her dishonor, they fall under Article 258.
Duel, Definition
NOTE: Unlike in infanticide under Article 255 where maternal It is a formal or regular combat previously concerted between
grandparents (parents of the pregnant woman as to abortion), two parties in the presence of two or more seconds of lawful
even if they did the crime to conceal her dishonor there is no age on each side, who make the selection of arms and fix all the
mitigating circumstance for them. other conditions of the fight.
ARTICLE 259. Abortion practiced by a physician or Acts Punishable

midwife and dispensing of abortives. – The penalties 1. By killing one’s adversary in a duel.
provided in Article 256 shall be imposed in their maximum 2. By inflicting upon such adversary physical injuries.
period, respectively, upon any physician or midwife who, 3. By making a combat although no physical injuries
taking advantage of their scientific knowledge or skill, shall
have been inflicted.
cause an abortion or assist in causing the same.
Any pharmacist who, without proper prescription from a Persons Liable

physician, shall dispense any abortive shall suffer arresto 1. The person who killed or inflicted physical injuries upon
mayor and a fine not exceeding One hundred thousand pesos his adversary or both combatants, as principals.
(P100,000). 2. The seconds, as accomplices.
ELEMENTS FOR ARTICLE 259(1) (AIPAd) ARTICLE 261. Challenging to a duel. – The penalty of prision
1. That there is a pregnant woman who has suffered an correccional in its minimum period shall be imposed upon
Abortion; any person who shall challenge another, or incite another to
2. That the abortion is Intended; give or accept a challenge to a duel, or shall scoff at or decry
another publicly for having refused to accept a challenge to
3. That the offender, who must be a Physician or midwife,
fight a duel.
causes, or assists in causing the abortion.
4. That said physician or midwife takes Advantage of his
or her scientific knowledge or skill. Challenging to a Duel
The other challenges but the other does not accept, or incite or
ELEMENTS FOR ARTICLE 259(2) (PND) another to give another or accept, scoff or decry of refusing to
1. That the offender is a Pharmacist; accept the challenge.
2. That there is No proper prescription from a physician; • It is not mere challenge, there must be duel.
3. That the offender Dispenses any abortive. • It also punishes who instigates or incite.
• Those who scoff at or decries another publicly need
Maximum period of Article 256 for taking advantage of not be those who challenge.
technical or scientific knowledge. The overt act under second
paragraph, the mere dispensing is punishable, whether or not Persons Liable
it was used or not, it is still consummated. • Challenger;
• Instigators
This article does not require that the pharmacist knows that the
abortive be used to cause an abortion. What is punished is the NOTE: A challenge to fight without contemplating a duel, is not
mere act of dispensing and abortive without the proper a challenge to a duel. The person making the challenge must
prescription from a physician. If the pharmacist knew that the have in mind a formal combat to be concerned between him
abortive would be used to cause an abortion, he shall be and the one challenged in the presence of two or more
considered as an accomplice for the crime of abortion. It is not seconds.
necessary that the abortive will be used.
CHAPTER TWO Second paragraph includes all other organs in the body, the
PHYSICAL INJURIES second paragraph is also known as mayhem. Common element
is the specific intent to remove organ from the body of the
Nature of Physical Injuries as to Stage of Execution person, not merely injuring the person, the intention must be
It is a formal crime; always in the consummated stage, as the specific enough to deprive the person of the use of that body
penalty is based on the gravity of the injury. The gravity of the part, whether essential or not.
injury, whether serious, less serious or slight will not be known
unless the felony is consummated. Q. Is vasectomy a form of mutilation? (Case of Aguirre v. SOJ)
Physical Injuries from Homicide or Murder: Intent to Kill AGUIRRE v. SECRETARY OF JUSTICE (2008)
Intent to kill is determined by: (1) kind of weapon used; (2) The issue whether vasectomy without consent of the patients is
nature, number and location of wound; and (3) words uttered mutilation. The patient here has mental deficiency thus the
by the offender. question of the consent of the performance of vasectomy. The
doctor is questioned to have committed of mutilation.
Thus, when any deadly weapon is used even if the victim was Vasectomy is a depriving the capacity of procreating.
grazed only, the crime is at least attempted homicide, if the
wound is fatal, at least frustrated homicide because of the Though undeniably, vasectomy denies a man his power of
choice of weapon showing intent to kill. Intent to kill is a specific reproduction, such procedure does not deprive him, either
criminal intent that must be conclusively proved in case of totally or partially, of some essential organ for reproduction.
injuries.
Notably, the ordinary usage of the term mutilation is the
When death results, intent to kill is a general intent which is deprivation of a limb or essential part (of the body), with the
conclusively presumed, hence if death results, even without operative expression being deprivation. In the same manner,
intent to kill, the crime is at least homicide. the word castration is defined as the removal of the testies or
ovaries.
ARTICLE 262. Mutilation. – The penalty of reclusion
Vasectomy does not take away any organ. Mutilation
temporal to reclusion perpetua shall be imposed upon any
person who shall intentionally mutilate another by depriving requires that an organ must be taken away to be liable for
him, either totally or partially, of some essential organ for Article 262 of the Revised Penal Code. It is the deprivation of
reproduction. organ itself which is essential for reproduction. In summary,
vasectomy does not mean removal of the organ, as understood
Any other intentional mutilation shall be punished by prision by the word “mutilate” wherein vasectomy only cuts the vas
mayor in its medium and maximum periods deferens to deny a man to be able to produce sperm for
procreation.
PUNISHABLE ACTS AND ELEMENTS
1. Intentionally mutilating another by depriving him, Q. What if the wife chances upon the husband sex with another
either totally or partially of some essential organ for but cuts off the penis of the husband? This is still covered under
reproduction. Article 247, because mutilation is considered as such physical
injuries. The wife has no criminal liablity.
Elements of Castration
a. That there be a castration, that is, mutilation of organs The law looks not only to the result but also to the intention or
necessary for generation, such as the penis or purpose of the act. Mutilation is always intentional. The
ovarium. intention of the offender to deprive the victim of the body part
b. That the mutilation is caused purposely or whether by castration or mayhem is essential and must thus
deliberately, that is to deprive the offended party of exist in either case.
some essential organ for reproduction.
Cruelty is Inherent in Mutilation
2. Intentionally making other mutilation. That is by Cruelty is deemed inherent in mutilation, in fact, this is the only
lopping or clipping of any part of the body of the felony where the said circumstance is an integral party and is
offended party, other than the essential organ for absorbed therein. If the victim dies, the crime is murder
reproduction to deprive him of that part of body. qualified by cruelty, but the offender may claim and prove that
he had no intention to commit so grave a wrong.
Mutilation, Definition
Essentially deprive the person the organ used for essential Mutilation from Serious Physical Injuries
organ for reproduction, it is akin to killing the person, the Check the primordial intent. If the intention is to remove the
deprivation of the power to unique power to transmit life. By body part then 262, if the intent is to injure, but it was incidental
our reproductive organs, to create something to nothing, because it led to the removal of the body part it is considered
deprivation of capacity to procreate. The first paragraph is serious physical injury.
usually referred to as castration.
ARTICLE 263. Serious physical injuries. – Any person who 2.

shall wound, beat, or assault another; shall be guilty of the Injured person loses use of speech or power to hear or
crime of serious physical injuries and shall suffer: smell or loses an eye, hand, foot, arm or leg, or loses use of
1. The penalty of prision mayor, if in consequence of any such member of becomes incapacitated for work in
the physical injuries inflicted, the injured person which he was habitually engaged.
shall become insane, imbecile, impotent, or blind; PENALTY: Prision Correccional Medium and Maximum Periods
and maximum periods, if in consequence of the
Instances Covered under Article 263(2)
physical injuries inflicted, the person injured shall
have lost the use of speech or the power to hear or 1. Loses use of speech or smell.
smell, or shall have lost of speech or the power to 2. Loses an eye, hand, foot, arm or leg (referred to as the
hear or smell, or shall have lost an eye, a hand, a foot, principal members)
an arm, or a leg, or shall have lost the use of any such 3. Loses use of the principal members.
member, or shall have become in capacitated for the 4. Permanent incapacity for work habitually engaged in.
work in which he was therefore habitually engaged;
3. The penalty of prision correccional in its minimum
Eye, foot arm or leg, lose any of these organs, permanent
and medium periods, if in consequence of the of the
physical injuries inflicted, the person injured shall incapacity for work which you are habitually engaged in. Pianist
have become deformed, or shall have lost any other losing one or two fingers, you need not lose organ itself, the
part of his body, or shall have lost the use thereof, use must be lost. You lose the use of entire hand, foot, or leg.
or shall have been ill or incapacitated for the
performance of work in which he was habitually All those mentioned are principal members of the body. The
engaged for a period of more than ninety days. enumerated body parts, the eye, hand, foot, arm or leg, or the
4. The penalty of arresto mayor in its maximum period loss of use thereof is which is contemplated under the second
to prision correccional in its minimum period, if the
paragraph.
physical injuries inflicted shall have caused the
illness or incapacity for labor of the injured person
for more than thirty days. 3.
Injured person becomes deformed, or loses any other
If the offense shall have been committed against any of the member of the body, or the use therefor, or becomes ill or
persons enumerated in Article 246, or with the attendance of capacitated for the performance of the work in which he
any of the circumstances in Article 248, the case covered by was habitually engaged for more than 90 days.
subdivision 1 of this article shall be punished by reclusion PENALTY: Prision Correccional Minimum and Medium Periods
temporal in its medium and maximum periods, the case
covered by subdivision number 2 by prision correccional in its
maximum period to prision mayor in its minimum period the Instances Covered
case covered by subdivision number 3 by prision correccional 1. Injured person becomes deformed.
in its medium and maximum periods and the case covered by 2. Loses any other member of the body.
subdivision number 4 by prision correccional in its minimum 3. Loses the use of any other member of the body
and medium periods. 4. Becomes incapacitated for the performance of work
which he was habitually engaged for more than 90
The provisions of the preceding paragraph shall not be days.
applicable to a parent who shall inflict physical injuries upon
his child by excessive chastisement.
When is there deformity?
This requires that physical ugliness, permanent and definite
What are the Overt Acts (WBA) abnormality which is conspicuous and visible.
Wound, beat, assault the another, resulting to the injuries
enumerated under Article 263. If it cannot be repaired by natural hearing it is considered by
1. By wounding healing, by lapse of time or by nature.
2. By beating • Loss of teeth is considered deformity.
3. By assaulting or • It must be noticeable, not back teeth but two front
4. By administering injurious substance (264) teeth, like armpit and groin.
• The loss of teeth refers to injury which cannot be
1. repaired by the action of nature.
Injured person becomes insane,
imbecile, impotent or blind. “Any Other Member or Use Therefor”
PENALTY: Prision Mayor
The phrase means any other member which excludes the arm,
foot, hand or an eye which are mentioned in Article 263(2). The
Impotence means the inability to copulate similar with sterility. fingers of the hand are not principal members.
Being blind means losing capacity to see in both eyes, it must
be complete blindness to fall to this paragraph. If you only lose But if it can be shown that that the loss of the three fingers in a
one eye, then paragraph 2 is applicable. The blindness must be hand results to the loss of the use of the hand, then it can be
complete. Mere weakness of vision is not contemplated. alleged to be applicable under Article 263(2).
IV. ELEMENTS:
Injured person becomes ill or incapacitated 1. That the offended party is incapacitated for labor for
for labor for more than 30 days. 10 days or more but not more than 30 days.
PENALTY: Arresto Mayor Maximum to Prision Correccional Minimum 2. The physical injuries must not be those described in
the preceding article.
Labor, Generic Sense
The fourth paragraph of this article does not refer to labor in Qualified Less Serious Physical Injuries
which the offended party is engaged at the time the serious 1. A fine not exceeding P50,000, in addition to arresto
physical injuries are inflicted. Hence, the incapacity is for any mayor, shall be imposed for less serious physical
kind of labor. Hospitalization for more than thirty days may injuries when:
mean illness or incapacity for labor for more than thirty days. a. There is manifest intent to insult or offender
the injured person; or
Under III and IV, they speak of illness, they do not speak of b. There are circumstances adding ignominy to
medical attendance as opposed to other degree of physical the offense; and
injuries. No need for proof of medical attendance. Illness refers 2. A higher penalty of prision correccional (min-med) is
to the certain period of time when the would inflicted did not imposed when the victim is either:
heal within that period. Students are covered by the term a. The offender’s parent, ascendant, guardian,
“labor” as to include the days unable to attended classes. curator or teacher.
b. Persons of rank or persons in authority,
ARTICLE 264. Administering substances or beverages. – provided the crime is not direct assault.
The penalties established by the next preceding article shall
be applicable in the respective case to any person who, Inability to Work and Necessity for Medical Attendance
without intent to kill, shall inflict upon another any serious Although the wound requires medical attendance for two days,
physical injury, by knowingly administering to him any
yet if the injured party was prevented from attending to his
injurious substances or beverages or by taking advantage of
his weakness of mind or credulity. ordinary labor for a period of 29 days, the physical injuries
sustained are denominated as less serious. But if only medical
attendance is alleged, the proof of such is required, absent
ELEMENTS (SKAN) proof, it is only slight physical injuries.
1. That he offender inflicted upon another any Serious
physical injury;
ARTICLE 266. Slight physical injuries and maltreatment. –
2. That it was done by Knowingly administering to him
The crime of slight physical injuries shall be punished:
any injurious substances or beverages or by taking 1. By arresto menor when the offender has inflicted
Advantage of his weakness of mind or credulity. physical injuries which shall incapacitate the
3. That he had No intention to kill. offended party for labor from one to nine days, or
shall require medical attendance during the same
NOTE: When there is intent to kill, and the victim does not die, period;
there is frustrated murder, considered as poison. This article 2. By arresto menor or a fine not exceeding Forty
requires knowledge that the substance is injurious. If result is thousand pesos (P40,000) and censure when the
offender has caused physical injuries which do not
less serious or slight physical injuries this does not apply.
prevent the offended party from engaging in his
habitual work nor require medical attendance.
ARTICLE 265. Less serious physical injuries. – Any person 3. By arresto menor in its minimum period or a fine not
who shall inflict upon another physical injuries not described exceeding Five thousand pesos (P5,000) when the
in the preceding articles, but which shall incapacitate the offender shall ill-treat another by deed without
offended party for labor for ten days or more, or shall require causing injury.
medical attendance for the same period, shall be guilty of less
serious physical injuries and shall suffer the penalty of
arresto mayor. Punishable Acts (INI)
1. Physical injuries which incapacitated that offended
Whenever less serious physical injuries shall have been party from labor from 1-9 days or requires medical
inflicted with the manifest intent to insult or offend the attendance from the same period; or
injured person, or under circumstances adding ignominy to 2. Physical injuries which did not prevent the offended
the offense, in addition to the penalty of arresto mayor a fine party from engaging in his habitual work or which did
not exceeding Fifty thousand pesos (P50,000) shall be
not require medical attendance;
imposed.
3. Ill-treatment by another by deed without causing any
Any less serious physical injuries inflicted upon the injury. (Slapping without dishonor)
offender’s parents, ascendants, guardians, curators, teachers,
or persons of rank, or persons in authority, shall be punished In the absence of evidence as to the actual injury or to the
by prision correccional in its minimum and medium periods, duration of incapacity for labor or medical attendance, the
the deed does not constitute the crime of assault upon such crime is slight physical injuries. [PAGE 13 for CHART]
persons.
REPUBLIC ACT NO. 9262 women and children. Punishing only violence that is repeatedly
committed would license isolated ones. It would lead to
impurity which is an absurd.
Who are Covered?
"Violence against women and their children" refers to any act or
PUNISHABLE ACTS
a series of acts committed by any person against a woman who
1. Wife
2. Former wife, or Section 5. The crime of violence against women and their
3. Against a woman with whom the person has or had a children is committed through any of the following acts:
sexual or dating relationship, or
4. With whom he has a common child, or (a) Causing physical harm to the woman or her child;
5. Against her child whether legitimate or illegitimate,
within or without the family abode, which result in or (b) Threatening to cause the woman or her child physical harm;
is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including (c) Attempting to cause the woman or her child physical harm;
threats of such acts, battery, assault, coercion,
harassment or arbitrary deprivation of liberty.
(d) Placing the woman or her child in fear of imminent physical
harm;
RUSTAN ANG v. PEOPLE (2010)
Accused was charged under emotional abuse against the
(e) Attempting to compel or compelling the woman or her child
woman under Section 5(h), he sent an SMS to his former
to engage in conduct which the woman or her child has the
girlfriend. a pornographic picture to one Irish Sagud, who was
right to desist from or desist from conduct which the woman or
his former girlfriend, whereby the face of the latter was attached
her child has the right to engage in, or attempting to restrict or
to a completely naked body of another woman making it to
restricting the woman's or her child's freedom of movement or
appear that it was said Irish Sagud who is depicted in the said
conduct by force or threat of force, physical or other harm or
obscene and pornographic picture thereby causing substantial
threat of physical or other harm, or intimidation directed
emotional anguish, psychological distress and humiliation to
against the woman or child. This shall include, but not limited
the said Irish Sagud, used as a public blackmail.
to, the following acts committed with the purpose or effect of
controlling or restricting the woman's or her child's movement
He stated that there was never a dating relationship between
or conduct:
them that there was never a dating relationship, because they
never had sex, how could they have dated.
(1) Threatening to deprive or actually depriving the woman
Dating Relationship or her child of custody to her/his family;
Dating and sexual are interjected by the word or, dating or
sexual relationship. Dating does not necessarily mean under (2) Depriving or threatening to deprive the woman or her
Section 3(e) which means that the parties to this case agree that children of financial support legally due her or her family, or
the prosecution needed to prove that accused Rustan had a deliberately providing the woman's children insufficient
"dating relationship" with Irish. Section 3(e) provides that a financial support;
"dating relationship" includes a situation where the parties are
romantically involved over time and on a continuing basis (3) Depriving or threatening to deprive the woman or her
during the course of the relationship. child of a legal right;
Away-Bati is a Common Occurrence (4) Preventing the woman in engaging in any legitimate
An "away-bati" or a fight-and-kiss thing between two lovers is profession, occupation, business or activity or controlling
a common occurrence. Their taking place does not mean that the victim's own mon4ey or properties, or solely controlling
the romantic relation between the two should be deemed the conjugal or common money, or properties;
broken up during periods of misunderstanding. Explaining
what "away-bati" meant, Irish explained that at times, when she
(f) Inflicting or threatening to inflict physical harm on oneself
could not reply to Rustan’s messages, he would get angry at
for the purpose of controlling her actions or decisions;
her. That was all. Indeed, she characterized their three-month
romantic relation as continuous.
(g) Causing or attempting to cause the woman or her child to
engage in any sexual activity which does not constitute rape, by
CONTENTION: It only happened one time it was not habitual.
force or threat of force, physical harm, or through intimidation
Should there be habituality? Should a single act violative?
directed against the woman or her child or her/his immediate
family;
Yes. There need not be series of act, one isolated act is enough.
his means that a single act of harassment, which translates into
violence, would be enough. The object of the law is to protect (h) Engaging in purposeful, knowing, or reckless conduct,
personally or through another, that alarms or causes substantial
emotional or psychological distress to the woman or her child. CHART FOR PHYSICAL INJURIES
This shall include, but not be limited to, the following acts:
ART. INJURY CAUSED TO VICTIM PENALTY
(1) Stalking or following the woman or her child in public 263 Insane
or private places; (1) Imbecile
PM
Impotent
(2) Peering in the window or lingering outside the Blind (both eyes; complete blindness)
residence of the woman or her child; (2) Loses the use of speech, hear or smell
Loses an eye
PC
(3) Entering or remaining in the dwelling or on the Loses a hand, foot, arm or leg (HFAL)
Med-Max
property of the woman or her child against her/his will; Loses use of hand, foot, arm or leg
Permanent incapacity - habitual work
(4) Destroying the property and personal belongings or (3) Deformed
inflicting harm to animals or pets of the woman or her Loses any other member (non-HFAL) PC
child; and Lose use of other member (non-HFAL) Min-Med
Ill or incapacitated HWork >90days
(4) Ill or incapacitated for labor for
(5) Engaging in any form of harassment or violence; AM Max
>30days<90days (31-90 days)
- PC Min
Includes students inability to school
(i) Causing mental or emotional anguish, public ridicule or LESS
Injury not covered by 263 (1) to (4)
humiliation to the woman or her child, including, but not SERIOUS AM
265 Incapacitated for labor for *P50,000 or
limited to, repeated verbal and emotional abuse, and denial of
>10days<30days (10-30 days) PC Min-Med
financial support or custody of minor children of access to the
SLIGHT
woman's child/children. Incapacitated for labor
266 <10days (0-9 days) Am
(1)
NOTE: As long as the victim is woman, regardless of the (2) Physical injury without incapacity or Am
offender regardless of man or woman. It also includes the not requiring medical attendance OR A
effects of infidelity if it caused emotional distress. P40K and

Censure
GARCIA v. DRILON (3) Ill-treat another by deed without Am Min
OR
The RA 9262 is not unconstitutional, there is a substantial causing injury
P5K
difference between women and children from abusive ways of
other persons, from the context of relationship or marriage.
CHAPTER THREE ELEMENTS OF ARTICLE 266-A (2) (SPIC)

RAPE 1. That the offender commits an act of Sexual assault;
2. That the act of sexual assault is committed by any of
the following means:
ARTICLE 266-A. Rape, When and How Committed. – Rape
a. By inserting his Penis into another person’s
is committed —
1) By a man who shall have carnal knowledge of a mouth or anal orifice; or
woman under any of the following circumstances: b. By inserting any Instrument or object into the
a) Through force, threat or intimidation; genital or orifice of another person.
b) When the offended party is deprived of reason 3. That the act of sexual assault is accomplished under
or is otherwise unconscious; any of the of the Circumstances enumerated under the
c) By means of fraudulent machination or grave first act of committing rape.
abuse of authority;
d) When the offended party is under twelve (12)
years of age or is demented, even though none A. RAPE THROUGH SEXUAL INTERCOURSE
of the circumstances mentioned above be Contact of the male penis with the woman’s vagina is referred
present; to as rape by sexual intercourse. Penetration, even partial is
2) By any person who, under any of the circumstances necessary, the slightest penetration is enough, thus there is no
mentioned in paragraph 1 hereof, shall commit an frustrated rape contemplated by law.
act of sexual assault by inserting his penis into
another person's mouth or anal orifice, or any
A. Through Force, Threat or Intimidation
instrument or object, into the genital or anal orifice
of another person. It need not be resistible, it need not show that the force is
irresistible. It need not be shown that the victim is helpless. It is
enough to show that such exerted or inflicted upon the
Categorizing Rape as Crimes Against Persons offended party is sufficient to consummate the objective of rape.
It is no longer a crime that can be prosecuted de officio, this is
no longer a private crime wherein the consent of the accused is Presumption under Article 266-D
needed to be obtained to successfully sustain a prosecution. Article 266-D. Presumptions. - Any physical overt act
Technically, anybody can file. manifesting resistance against the act of rape in any degree
from the offended party, or where the offended party is so
It need not be the offended party, it can be witness or situated as to render her/him incapable of giving valid consent,
interested party. The testimony or consent of the offended may be accepted as evidence in the prosecution of the acts
party is no longer indispensable. Due to the recategorization, punished under Article 266-A.
there can be now an impossible crime of rape. Rape can now
be committed by a male or female under the second paragraph. What is pivotal is the offender was able to achieve such purpose
by employing such means. The degree of force has no standard
Difference definition, it must be analyzed relative to the strength of the
There can now be a rape by sexual assault, not only to a woman parties, seen from lens of the victim parties, within the powers
but also against a man. It may be committed by insertion of the to resist.
penis of an orifice with the attendance of the
Fear or threat may include fear of death of bodily harm.
Two Classifications of Rape Intimidation may come from threats using weapon.
1. Rape by a man who shall have carnal knowledge under Intimidation is more immediate, threat is more distant.
certain circumstances.
2. Rape by sexual assault under RA 8353 wherein the II. Deprivation of Reason or Unconscious
offender inserts his penis to another person’s mouth It can be artificial or physical, artificial like use of substances as
or anal orifice, or any instrument or object into the to impair or weaken consciousness. Or natural like,
genital or anal orifice of another person. developmental defect, like delayed mental development which
can be considered deprived for reason.
ELEMENTS OF ARTICLE 266-A (1) (MC-FDFU)
1. That the offender is a Man. This is because the victim cannot give valid consent.
2. That the offender had Carnal knowledge of a woman; Unconscious like asleep, having a sexual unconscious was
3. That such act is accomplished under any of the asleep, or too drunk, drunk sex may be considered as rape. The
following circumstances: victim is incapable of giving consent.
a. By using Force, threat or intimidation;
b. When the woman is Deprived of reason or PEOPLE v. ATENTO (1991)
otherwise unconscious; or The child here was sixteen years old when she presented what did she
c. By means of Fraudulent machination or grave feel, she said masarap, it gave her pleasurable sensation which removes
abuse of authority; or it from threat, force of intimidation. Glenda speaks of four other times
d. When the woman is Under twelve years of age or when he raped her. It was later (presumably because her hymen had
demented. healed) that she felt tickled by his manhood and described the act of
coitus as "masarap.”
therefrom is that complete or full penetration of the vagina is

It is not necessary under Article 335 for the culprit to deprive the victim not required for rape to be consummated. Any penetration, in
of reason prior to the rape, as by the administration of drugs or by some whatever degree, is enough to raise the crime to its
other illicit method. This provision also applies to cases where the
consummated stage.
woman has been earlier deprived of reason by other causes, as when
she is congenitally retarded or has previously suffered some traumatic
experience that has lowered her mental capacity. When the penis touches the labia, it is rape. When the penis
merely grazes outside there must be bombardment of the
The age of the victim can refer to her mental age. The deprivation of bridge not merely shelling of the castle.
reason need not be complete. Mental abnormality or deficiency is
enough. Cohabitation with a feeble-minded, idiotic woman is rape. The victim here is a four-year-old, the victim was in the second
Unlike insanity, it must be complete deprivation, here in rape, on the floor in the house, the mother went down to the second floor
part of the offended party, the deprive need not be complete.
to make Milo, at the ground floor was the accused, who was
filling water.
Demented or Dementia
It refers to gradual decline like Alzheimer’s Disease, there is a
The accused was a helper of the uncle of the victim, while the
gradual decline in the mental capacity of the person. This boils
mother was preparing drinks, she heard her child creaming
in the incapability of the person to give free consent.
ayoko, he saw the accused kneeling to the child where the
pajamas were down, and the accused’s pants were down to his
III. Fraudulent Machination or Grave Abuse of Authority
knees when the mother chanced upon the accused.
There must be taking advantage of moral ascendancy over the
victim, like the employer to employee; teacher-student; doctor-
The accused’s back was to the door, the mother could not see
patient; lawyer-client, this constitutes grave abuse.
what was happening.
B. RAPE THROUGH SEXUAL ASSAULT

The mother could not affirm to the penetration to such. The
The object here is interpreted to include any part of the human
court ruled here that there was no evidence that the
body like the penis, arm or the fingers for purposes for applying
accused’s penis was able to penetrate the vagina whatever
rape through sexual assault.
slight, due to the position the mother took.
For Example: A and B had a sexual intercourse, B fingered A and

Further, the medico-legal report showed no external signs of
had sexual intercourse with A. The act of fingering as sexual
physical injuries outside the victim. There was no proof of
assault is a different count from the sexual intercourse itself.
penetration however slight. It speculated that, the accused was
Rape through sexual assault and rape by sexual intercourse,
holding allegedly his penis in his right hand. Corazon even
there are not continuing events.
narrated that Primo had to hold his penis with his right hand,
thus showing that he had yet to attain an erection to be able to
When is Rape Consummated?
penetrate his victim. The testimony did not coincide with the
It is consummated upon the slightest penetration; complete
medical report. Therefore, the accused was merely accused with
penetration is not enough to consummate. Perfect penetration
attempted rape rather than consummated rape.
is not essential, slight penetration is enough.
The evidence presented was merely shows that there was only
PEOPLE v. CAMPUHAN (2000)
attempted rape. The evidence was only presented, failure to
It must not be mere shelling of the castle or grazing, it cannot
present sufficient evidence affect the decision of the facts in the
constitute as penetration to consummate rape. There is
case. This is what happened in this case.
penetration when penis touches the labia majora at the least.
PEOLE v. ORITA (1990)
All the elements of the offense were already present and
By the definition of rape, it is legally impossible to state that
nothing more was left for the offender to do, having performed
there is a frustrated rape. The moment the penis touches the
all the acts necessary to produce the crime and accomplish it.
labia, there is already slight penetration, there is rape. When
We ruled then that perfect penetration was not essential; any
there is an intent to rape, it is attempted.
penetration of the female organ by the male organ, however
slight, was sufficient.
In this case, the offended party came from a party and then she
went home early in the morning, the offender who was a
The Court further held that entry of the labia or lips of the
frequent of the room near, poked a knife near her neck and find
female organ, even without rupture of the hymen or laceration
out a vacant room. The first position, accused on top on the
of the vagina, was sufficient to warrant conviction for
victim with a knife in his hand, but as much as he tried to, he
consummated rape. We distinguished consummated rape from
could not achieve complete penetration, he was trying to insert
attempted rape where there was no penetration of the female
but he cannot due to small diameter. Wanting to have complete
organ because not all acts of execution were performed as the
penetration, he went under, even then there was still no
offender merely commenced the commission of a felony
complete penetration. There is rape, there is no frustrated rape.
directly by overt acts. The inference that may be derived
PEOPLE v. MANGALINO (1990) There is No Crime of Frustrated Rape

Should medical records stating that the hymen was intact justify From the moment the offender has carnal knowledge of his
that there was not ruptured? No. The breaking of the hymen is victim, he actually attains his purpose and from that moment
not an essential element of rape. also, the essential elements of the offense have been
accomplished. The felony is consummated.
The penis need not actually reach the hymen of the victim. The
hymen of the victim varies from person to person, it may be so Necessarily, a rape is attempted, if there is no penetration of the
flexible that it can remain undamaged during sexual intercourse female organ because not all acts of execution of the crime of
or become so rigid that surgical operation is necessary in order rape has been performed. It is hardly inconceivable how the
to allow a woman to have sexual intercourse. Therefore, frustrate stage in rape can ever be committed (People v. Orita,
considering slight penetration consummates rape, there is no 184 SCRA 114-115).
need to prove that the hymen was ruptured.
Whether or not there can be marital rape?
PEOPLE v. CASTRO (1991) GR 91490 Under Article 266-C (2), in case it is the legal husband who is
The accused was charged for having rape, the accused pulled the offender, regardless if the offender is the husband if there
the six-year-old to the bathroom, they had sexual intercourse is force or coercion. The husband does not treat a wife as a
while both of them are standing. property.
Accused used this as a defense. Sexual intercourse in a standing PEOPLE v. JUMAWAN (2014) GR 187495
position, while perhaps uncomfortable, is not improbable. This A woman is no longer the chattel-antiquated practices labeled
is more of an evidence to facilitate penetration. her to be. A husband who has sexual intercourse with his wife
is not merely using a property, he is fulfilling a marital
When do you distinguish Attempted Rape consortium with a fellow human being with dignity equal to
from Acts of Lasciviousness? that he accords himself.
CRUZ v. PEOPLE (2014) GR 166441 He cannot be permitted to violate this dignity by coercing her
The intent of the offender to lie (penetrate) with the female to engage in a sexual act without her full and free consent.
defines the distinction between attempted rape and acts of
lasciviousness. Surely, the Philippines cannot renege on its international
commitments and accommodate conservative yet irrational
The felony of attempted rape requires such intent; the felony of notions on marital activities that have lost their relevance in a
acts of lasciviousness does not. Only the direct overt acts of the progressive society.
offender establish the intent to lie with the female.
It is true that the Family Code, obligates the spouses to love
However, merely climbing on top of a naked female does not one another but this rule sanctions affection and sexual
constitute attempted rape without proof of his erectile penis intimacy, as expressions of love, that are both spontaneous and
being in a position to penetrate the female's vagina. mutual and not the kind which is unilaterally exacted by force
or coercion.
The act subject of the issue, was the climbing on top of a female
naked body and touching genitalia and mashing her breast. The “The Subsequent Forgiveness of the Wife Extinguishes the
accused was still wearing her clothes. Action for the Offense”
In case it is the legal husband who is the offender, the
Proof of intent to lie depends on the capacity of the penis to be subsequent forgiveness by the wife as the offended party shall
in the position to penetrate the female vagina. There is lack of extinguish the criminal action or the penalty: Provided, That the
evidence to show that penis was in the position. This deters any crime shall not be extinguished, or the penalty shall not be
intent to lie against the victim. abated if the marriage is void ab initio.
PEOPLE v. GITO (2016) GR 199397 It is only in crimes against chastity that pardon/forgiveness by
The sweetheart theory as a defense. There was a love letter used the offended party shall bar the prosecution of the offense
as defense therefore there can be no rape due to such defense. committed, i.e., seduction, abduction, acts of lasciviousness.
The court disagreed.
Since rape is no longer a crime against chastity, but is now a
Moreover, we emphasized the doctrine that being sweethearts crime against persons, the provision that "subsequent
does not negate the commission of rape because such fact forgiveness by the wife as the offended party shall extinguish
does not give appellant license to have sexual intercourse the criminal action or the penalty" is the exception to the rule
against her will and will not exonerate him from the criminal that forgiveness by the offended party shall not extinguish the
charge of rape. Being sweethearts does not prove consent penal action in crimes against persons.
to the sexual act.
ARTICLE 266-B. – Penalty. - Rape under paragraph 1 of the 10) When the offender knew of the mental disability,
next preceding article shall be punished by reclusion emotional disorder and/or physical handicap of the offended
perpetua. party at the time of the commission of the crime.
Whenever the rape is committed with the use of a deadly Rape under paragraph 2 of the next preceding article shall be
weapon or by two or more persons, the penalty shall be punished by prision mayor.
Whenever the rape is committed with the use of a deadly
When by reason or on the occasion of the rape, the victim has weapon or by two or more persons, the penalty shall be
become insane, the penalty shall become reclusion perpetua prision mayor to reclusion temporal.
to death.
When by reason or on the occasion of the rape, the victim has
When the rape is attempted and a homicide is committed by become insane, the penalty shall be reclusion temporal.
reason or on the occasion thereof, the penalty shall be
reclusion perpetua to death. When the rape is attempted and a homicide is committed by
reason or on the occasion thereof, the penalty shall be
When by reason or on the occasion of the rape, homicide is reclusion temporal to reclusion perpetua.
committed, the penalty shall be death.
When by reason or on the occasion of the rape, homicide is
The death penalty shall also be imposed if the crime of rape committed, the penalty shall be reclusion perpetua.
is committed with any of the following aggravating /
qualifying circumstances: Reclusion temporal shall be imposed if the rape is committed
with any of the ten aggravating/ qualifying circumstances
l) When the victim is under eighteen (18) years of age and the mentioned in this article.
offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim; NOTE: When four criminals took turns to rape the victim there
are four counts of rape for each accused and when there is
2) When the victim is under the custody of the police or connivance of such act.
military authorities or any law enforcement or penal
institution; Rape with Homicide
Rape and homicide must be connected, but the victims may not
3) When the rape is committed in full view of the spouse, be the same. A, victim, B was the witness, to prevent to call help
parent, any of the children or other relatives within the third accused kills B. For example, you choose between A and B, in
civil degree of consanguinity; order to facilitate you have to kill one so no one can help, so
you kill A. Thus, homicide is directly connected with rape.
4) When the victim is a religious engaged in legitimate
religious vocation or calling and is personally known to be The offender rapes A, he has an STD and it is transmitted to A,
such by the offender before or at the time of the commission
as a result, A dies due to the STD. The homicide is by reason of
of the crime;
the rape, then it is also considered rape with homicide. This is a
special complex crime thus rules under Article 48 of RPC does
5) When the victim is a child below seven (7) years old;
not apply. The test is the words by reason or by occasion.
6) When the offender knows that he is afflicted with the

The commission of homicide was consummated immediately
Human Immuno-Deficiency Virus (HIV)/Acquired Immune
Deficiency Syndrome (AIDS) or any other sexually prior to rape, what happened was that the victim was about to
transmissible disease and the virus or disease is transmitted die, and that was the time offender decided to rape. The
to the victim; primordial intent was to kill not to rape the victim. Its homicide
or murder, the rape may be taken as qualifying circumstance as
7) When committed by any member of the Armed Forces of scoffing, ignominy or cruelty to qualify homicide to murder.
the Philippines or para-military units thereof or the You go back to the primordial intent must be to rape. If rape
Philippine National Police or any law enforcement agency or arises as an afterthought, it cannot be rape with homicide.
penal institution, when the offender took advantage of his
position to facilitate the commission of the crime; A special complex crime of rape with homicide is found in
Article 266-B of the Revised Penal Code where the crime of rape
8) When by reason or on the occasion of the rape, the victim is qualified when “by reason or on occasion of rape, homicide
has suffered permanent physical mutilation or disability;
is committed.” There is also attempted rape with homicide.
• The rape and homicide must be connected, but it is
9) When the offender knew of the pregnancy of the offended not necessary that the victim be the same.
party at the time of the commission of the crime; and
Example: Offender rapes A, he has STD and transmits such to A Immaterial if the Person Killed is not the Rape Victim
by reason of the rape, A dies due to the STD, then homicide is The fact established showed that the constitutive elements of
by reason of the rape. This forms the composite crime of rape rape with homicide were consummated, and it is immaterial
with homicide. that the person killed in this case is someone other than the
woman victim of the rape.
People v. Laog
GR 178321, October 5, 2011 Homicide, Understood in Generic Sense
In the special complex crime of rape with homicide, the term
Information: That on or about the 6th day of June, 2000, in the
homicide is to be understood in its generic sense which
municipality of San Rafael, province of Bulacan, Philippines, and
includes, murder, parricide, and includes murder and slight
within the jurisdiction of this Honorable Court, the above-named
accused, with lewd designs, by means of force, violence and physical injuries committed by reason or on occasion of rape.
intimidation, that is, by attacking and hitting with a lead pipe one
[AAA] which resulted [in] her incurring serious physical injuries that Hence, even if any or all of the circumstances (treachery, abuse
almost caused her death, and while in such defenseless situation, of superior strength, and evident premeditation) alleged in the
did then and there have carnal knowledge of said [AAA] against her information have been duly established by the prosecution, the
will and consent. would not qualify the killing to murder and the crime
committed by the appellant is still rape with homicide.
Facts: AAA said that on the evening of June 6, 2000, she and her
friend JENNIFER were walking along the rice paddles to apply for
work at a canteen near Bulacan. Suddenly, appellant LAOG who was The aggravating circumstance of treachery is to be considered
holding an ice pick and a lead pipe, waylaid them and forcibly as a generic aggravating circumstance only.
brought them to a grassy area at the back of a concrete wall.
Without warning, LAOG struck AAA with the lead pipe causing her Circumstance of Abuse of Superior Strength
to feel dizzy and to fall down. It exists whenever there is notorious inequality of forces
between the victim and the aggressor that is plainly and
When JENNIFER saw this, she cried out for help but LAOG also hit
obviously advantageous to the aggressor and purposely
her on the head with the lead pipe, knocking her down. LAOG
selected or taken advantage of to facilitate the commission of
stabbed JENNIFER several times with the ice pick and thereafter
cover her body with thick grass. the crime. If its taken into account whenever the aggressor
purposely uses excessive force that is out of proportion to the
Appellant then turned to AAA. He hit AAA in the head several times mean of defense available to the person attacked.
more with the lead pipe and stabbed on her face. While AAA was in
such defenseless went on top her, sucked her breasts and inserted In this case, as personally witnessed by AAA, appellant struck
his penis into her vagina. After raping AAA, appellant also covered Jennifer in the head with a lead pipe then stabbed her
her with grass. At that point, AAA passed out. Thereafter, AAA
repeatedly until she was dead.
regained consciousness, three weeks later she learned that Jennifer
had died. Upon trial, he was charged with separates crimes of
murder and rape. Clearly, the manner by which appellant had brutally slain
Jennifer with a lethal weapon, by first hitting her in the head
Issue: What is the proper chargeable crime against Laog? with a lead pipe to render her defenseless and vulnerable
before stabbing her repeatedly, unmistakably showed that
Ruling: The facts alleged and proven clearly show the crime appellant intentionally used excessive force out of proportion
committed by Laog is rape with homicide under Article 266-B to the means of defense available to his unarmed victim. Abuse
of the Revised Penal Code and should not have been convicted of superior strength herein is merely considered as a generic
of the separate crimes of murder and rape. Considering that aggravating circumstance in the imposition of the penalty.
the prosecution was able to prove both the rape of AAA and
the killing of JENNIFER, he is liable for rape with homicide under When killing does not make rape with homicide:
the aforecited provision.
People v. Laspardas
GR L-46146, October 23, 1979
There is no doubt that appellant killed Jennifer to prevent her
from aiding AAA or calling for help once she is able to run away,
The accused murdered two sisters. As the elder sister was dying,
and also to silence her completely, so she may not witness the
the accused had carnal intercourse with her. The prosecution
rape of AAA, the original intent of appellant. His carnal desire
charged two murders and rape as double murder and rape.
having been satiated, appellant purposely covered AAA’s body
with grass, as he did earlier with Jennifer’s body, so that it may
Rule: This was not the special complex crime of rape with
not be easily noticed or seen by passersby.
homicide. Since the victim was already at the threshold of
death when she was ravished. That bestiality may be regarded
Appellant indeed thought that the savage blows he had
either as a form of ignominy causing disgrace or as a form of
inflicted on AAA were enough to cause her death as with
cruelty which aggravated the murder of the elder sister, it
Jennifer. But AAA survived, and appellant’s barbaric deeds were
being unnecessary to the commission thereof. He was guilty of
soon enough discovered.
two separate murders.
People v. Amarela The factual setting back then would have been appropriate to
GR 225642-43, January 17, 2018 say it is natural for a woman to be reluctant in disclosing a
sexual assault; today, we simply cannot be stuck to the Maria
Facts: Two informations were filed against AMARELA and RACHO
Clara stereotype of a demure and reserved Filipino woman.
for rape through sexual intercourse. It was stated that on February
10, 2009 at 6PM, AAA was watching a beauty contest with her aunt
being held at a basketball court where a make-shift stage was put We, should stay away from such mindset and accept the
up. Only vehicle lights were available. realities of a woman's dynamic role in society today; she who
has over the years transformed into a strong and confidently
She had the urge to urinate, so she went to the comfort room beside intelligent and beautiful person, willing to fight for her rights.
the Cooperative Building near the court. Between the court and the
building, there were several trees. She was not able to reach to In this way, we can evaluate the testimony of a private
comfort room because AMARELA was already waiting for AAA along
complainant of rape without gender bias or cultural
the way. AMARELA pulled her towards the day care center.
misconception.
She was shocked and no match to his strength. AMARELA punched
her in the abdomen which rendered her weak. Then, he undressed It is important to weed out these unnecessary notions because
her. She tried to resist but he was stronger. He boxed her upper an accused may be convicted solely on the testimony of the
thigh and she felt numb. He placed himself on top of her and victim, provided of course, that the testimony is credible,
inserted his penis inside her vagina and made a push and pull natural, convincing, and consistent with human nature and the
movement. She shouted for help and then three men came to her normal course of things.
rescue so AMARELA fled.
Thus, in order for us to affirm a conviction for rape, we must

The three persons brought her to a hut, but they closed the hut and
believe beyond reasonable doubt the version of events
had bad intention with her. So, she fled and hid in a neighboring
house. When she saw that the persons were no longer around, she narrated by the victim.
proceeded on her way home.
Circumstances Casting Doubt to Credibility
She went to the house of Godo Dumandan who brought her first to 1. The version of AAA’s story appearing in her affidavit
the Racho residence, Neneng asked her son RACHO to bring her to differs materially from her testimony in court;
her aunt’s house instead. 2. AAA could not have easily identified Amarela because
the crime scene was dark, and she only saw him for
AAA then said that RACHO brought her to a shanty along the way
the first time; and
against her will. She was told to lie down. When she refused RACHO
boxed her abdomen and she felt sick. She resisted by kicking him, 3. Her testimony lacks material details on how she was
but he succeeded in undressing her. He then, undressed himself and brought under the stage against her will; and
placed himself on top of AAA. RACHO then inserted his penis into 4. Medical findings do not corroborate physical injuries
AAA’s vagina. After consummating the act, RACHO left her. So, AAA and are inconclusive of any signs of forced entry.
went home alone. They reported the matter to the police eventually.
Elaborations of the Grounds for Acquittal
Amarela’s defense. Denied that he had anything to do with what
1. Her testimony, affidavit-complaint and testimony in
happened to AAA. He only met AAA for she asked him if he knew
court and that there are material inconsistencies. But
her boyfriend and nothing else connected to such happened.
in this instance cannot overlook the glaring
Racho’s defense. He could not have done that because his hand is inconsistencies making it look that A is concocting a
impaired while showing a long scar on his left arm. He could not story, for she was dragged in makeshift but in trial
move it around. testimony she was dragged in the CR.
Issue: Is the affirmation of Court of Appeals of the conviction AAA might have changed her stance, even if she had shouted
by the trial courts of both Amarela and Racho proper? for help in the CR, in contrast for being dragged from stage.
She was not able to identify the accused due to the light, for
Rule: No. After a careful review of the records and a closer the testimony had doubt.
scrutiny of AAA’s testimony, reasonable doubt lingers as we are
not fully convinced that AAA was telling the truth. 2. According to her, the place was dark and there were
no source of light and trees and tall grass and that she
Abandonment of the Maria Clara Doctrine not able to see accused. The court was doubtful how
For long, the court has hinged on the impression that no young was she able to identify. She recanted, that she saw in
Filipina of decent repute would publicly admit that she has been the way to the daycare.
sexually abused, unless that is the truth, for it is her natural
instinct to protect her honor. 3. Medico-legal certificate findings, even though merely
corroborative, AAA could have not been overlooking
However, this misconception, particularly in this day and age, to have participated consensual sex for there was no
not only puts the accused at an unfair disadvantage, but creates physical injuries for she stated that she was punched
a travesty of justice. and boxed in her thighs. The location of the laceration
of her hymen, the position of the hymen does not

mean that there was forcible entry. If the person has a A husband who has a sexual intercourse with his wife is not
lot of laceration, there was abuse, there was only merely using a property, he is fulfilling marital consortium with
lacerations 9 o’clock and 3 o’clock laceration. a fellow human being with dignity equal to that he accords
himself. He cannot violate this dignity by coercing her to
AAA only testified once. Since her credibility has been engage in a sexual act without her full and free consent.
questioned, we should also review the conditions that
convicted Racho as well. When the Legal Husband is the Offender
Racho did not deny, what Racho did that he was escorted AAA, subsequent forgiveness by a wife who is the offended party
if he really raped what he had made was to make a story as an shall extinguish the criminal action or the penalty. Provided, that
alibi that could have been supported by his mother. But he the crime shall not be exintguished or the penalty shall not be
admitted that he escorted AAA home. abated the marriage is void ab initio,
Another reason, Racho did not even want to escort AAA, Racho It is only in crimes against chastity that pardon/forgiveness by
even refused at first, for it should have been Bobby. He should the offended party shall bar the prosecution of the offense
not have refused if he really wanted to rape A. committed, i.e., seduction, abduction, acts of lasciviousness.
Since rape is no longer a crime against chastity, but is now a
The time he went back to the house corroborates his defense. crime against persons, the provision that "subsequent
He was not able to escort AAA’s home, for she did not want to forgiveness by the wife as the offended party shall extinguish
go to her aunt’s home and Racho left AAA for it was far. The the criminal action or the penalty" is the exception to the rule
time he went back was still 10PM making it impossible for him that forgiveness by the offended party shall not extinguish the
to do that. penal action in crimes against persons.
4. Physical impossibility of her narration of the makeshift ARTICLE 266-D. Presumptions. – Any physical overt act
stage for it was allegedly two feet, for she dragged manifesting resistance against the act of rape in any degree
there and undressed and she was boxed there and she from the offended party, or where the offended party is so
resisted. It was legal impossibility to have done situated as to render her/him incapable of giving valid
everything while that was happening. consent, may be accepted as evidence in the prosecution of
the acts punished under Article 266-A.
Discussion: The Supreme Court already established the
context, it floats from the decision not to adhere to the Evidence Accepted in Prosecution of Rape
women’s honor doctrine, the intention of the SC was to arrive (a) Any physical or overt act manifesting resistance
at a decision free of bias, because the principle before a woman against the act of rape in any degree from the
would state the story it would bring the dishonor. This was offended party; or
repeatedly adhering until this case. (b) When the offended party is so situated as to render
him or her incapable of giving consent.
ARTICLE 266-C. Effect of Pardon. – The subsequent valid
marriage between the offender and the offended party shall
extinguish the criminal action or the penalty imposed.

subsequent forgiveness by the wife as the offended party
shall extinguish the criminal action or the penalty: Provided,
That the crime shall not be extinguished or the penalty shall
not be abated if the marriage is void ab initio.
Effect of Marriage
Marriage extinguish not only the penal action but likewise the
penalty that may be imposed. Prior to RA 8353, a husband
cannot be guilty of rape committed against his wife due to
matrimonial consent during marriage.
Concept of Marital Rape

It is now acknowledged that 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. A woman is no longer a chattel antiquated practice labeled
her to be.
RA 7610 Provided, That when the victims is under twelve (12) years of
age, the perpetrators shall be prosecuted under Article 335,
Special Protection of Children Against Abuse,
paragraph 3, for rape and Article 336 of Act No. 3815, as
Exploitation and Discrimination Act amended, the Revised Penal Code, for rape or lascivious
conduct, as the case may be: Provided, That the penalty for
Who are Covered Under this Law? lascivious conduct when the victim is under twelve (12) years of
Children - refers to person below eighteen (18) years of age or age shall be reclusion temporal in its medium period; and
those over but are unable to fully take care of themselves or
protect themselves from abuse, neglect, cruelty, exploitation or Section 5(B): JURISPRUDENCE
discrimination because of a physical or mental disability or
condition (Section 3(a)). PEOPLE v. DAHILIG GR 187083, 2011
It was 4am in the morning, victim A, 16 years old transferred to
What is Child Abuse? [Section 3(b)] the floor, there was touching her and it was the accused, she
Child abuse" refers to the maltreatment, whether habitual or tried to refuse, the accused made acts tried to insert penis. The
not, of the child which includes any of the following: sex was consensual for they were sweethearts. As to the
sweetheart defense it was not shown clear and convincing
(1) Psychological and physical abuse, neglect, cruelty, evidence. Herein accused was penalized for rape. CA affirmed
sexual abuse and emotional maltreatment; this RTC decision but finding that the crime charged should be
(2) Any act by deeds or words which debases, degrades Section 5(b) of RA 7610. Thus, there is a confusion of what is
or demeans the intrinsic worth and dignity of a child the applicable offense.
as a human being;
(3) Unreasonable deprivation of his basic needs for What is the proper chargeable offense?
survival, such as food and shelter; or
(4) Failure to immediately give medical treatment to an The determinant factor is the age of the victim, if the victim is
injured child resulting in serious impairment of his 12 years or older it can either be rape or sexual abuse, under
growth and development or in his permanent which provision to charge the accused with of either.
incapacity or death. • However, the offender cannot be accused of both
crimes for the same act because his right against
PUNISHABLE ACTS double jeopardy will be prejudiced.
• For example, the victim is 12 years or above and there
SECTION 5. Child Prostitution and Other Sexual Abuse. – is sexual intercourse under force, you may choose
Children, whether male or female, who for money, profit, or any between rape or Section 5(b) of RA 7610.
other consideration or due to the coercion or influence of any
adult, syndicate or group, indulge in sexual intercourse or What if the victim is under twelve years of age?
lascivious conduct, are deemed to be children exploited in Under Section 5(b), Article III of RA 7610 in relation to RA 8353,
prostitution and other sexual abuse. if the victim of sexual abuse is below 12 years of age, the
offender should not be prosecuted for sexual abuse but for
The penalty of reclusion temporal in its medium period to statutory rape under Article 266-A(1)(d) of the Revised Penal
reclusion perpetua shall be imposed upon the following: Code and penalized with reclusion perpetua. You must charge
under statutory rape under Article 266-A(1)(d), if the victim
(a) Those who engage in or promote, facilitate or induce child is under 12 years of age.
prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute; HELD: Accordingly, the accused can indeed be charged with
(2) Inducing a person to be a client of a child prostitute either Rape or Child Abuse and be convicted therefor.
by means of written or oral advertisements or other Considering, however, that the information correctly charged
similar means; the accused with rape in violation of Article 266-A par. 1 in
(3) Taking advantage of influence or relationship to relation to Article 266-B, 1st par. of the Revised Penal Code, as
procure a child as prostitute; amended by R.A. No. 8353, and that he was convicted therefor,
(4) Threatening or using violence towards a child to the CA should have merely affirmed the conviction.
engage him as a prostitute; or
(5) Giving monetary consideration goods or other PEOPLE v. ABELLO
pecuniary benefit to a child with intent to engage such The victim here is 21 years old, she has a polio, and then
child in prostitution. because of her polio she was not able to study. On 1998, 4am
in the morning, while AAA was sleeping in her house, she was
(b) Those who commit the act of sexual intercourse of lascivious awakened when Abello mashed her breast. In these two
conduct with a child exploited in prostitution or subject to other occasions, Abello was identified due to the light. Another in
sexual abuse; 2am, Abello placed his soft penis in the mouth of AAA, she
awakened when she kneeled on her hand. The prosecutor
charged Abello with Rape and violation RA 7160.
Rape by Sexual Assault Hence, she could have not resisted Abello’s advances as she was
The accused place his penis in the mouth of the victim that is unconscious at the time it happened. In the same manner, there
why it is rape by sexual assault, under the second paragraph. was also no evidence showing that Abello compelled her or
The victim was asleep, she was unconscious and she did not cowed her into silence to bear his sexual assault, after being
have the capacity to give consent for she was unconscious, the roused from sleep. Neither is there evidence that she had the
offender took advantage. time to manifest conscious lack of consent or resistance to
Abello’s assault.
In the information, he was charged with Rape with sexual force
and intimidation, where the victim is unconscious. The Supreme NOTE: There was no evidence to show that she was a child
Court clarified that this conviction was possible, despite the engaged in prostitution. Other sexual abuse, this includes the
variance between the mode of committing the two crimes, by engagement of sexual or lascivious conduct by coercion or
means of force and intimidation and the unconscious. The intimidation by an adult to consider a child under sexual
defense did not object, the failure of the defense to object abuse. There can be no proof for the victim was sleeping at the
to the presentation of the evidence that does not correlate time. She was unconscious, there was no evidence of showing
these were admitted. In case of variance the defense must of her being intimated. No proof of coercion or influence. Thus,
object. You cannot present evidence that does not correlate, he cannot be convicted.
but failure to object allow its admissibility.
CABALLO v. PEOPLE 2013
Section 5(b) of RA 7610 – Not Violated He was charged initially for he impregnated AAA which initially
Such crime was not violated for the child was not under 18 years was said to have affected the development AAA, for she
old. The implementing rules elaborated on this definition when delivered the baby of Caballo, AAA was only 17 years old at
it defined a "child" as one who is below 18 years of age or over time when she was impregnated by Caballo. He was already 20
said age who, upon evaluation of a qualified physician, years, he was charged and convicted under Section 10(a) but
psychologist or psychiatrist, is found to be incapable of taking CA convicted him under Section 5(b).
care of herself fully because of a physical or mental disability or
condition or of protecting herself from abuse. He raised the defense of the sweetheart doctrine, and that
AAA consented to the sexual intercourse leading to
While the records show that the RTC, the CA and the impregnation thus AAA gave her consent.
investigating prosecutor who filed the corresponding
Informations, considered AAA’s polio as a physical disability In addition to that defense that the repeatedly defense the
that rendered her incapable of normal function, no evidence promise of marriage, the promise was not accepted, under the
was in fact presented showing the prosecution’s compliance element that there was no coercion, the could have not been
with the implementing rules. any coercion or influence, the promise to marry and the use of
withdrawal method should not be considered as persuasion or
Specifically, the prosecution did not present any evidence, inducement sufficient to convict. He asserts that these are not
testimonial or documentary, of any medical evaluation or enough to constitute coercion or intimidation.
medical finding from a qualified physician, psychologist or
psychiatrist attesting that AAA’s physical condition rendered her Rule: This defense cannot prosper. First AAA was a minor that
incapable of fully taking care of herself or of protecting herself she cannot give her consent to the act, and that he was a senior
against sexual abuse. Under the circumstances, we cannot to AAA and that he had influence over him.
consider AAA a child under Section 3(a) of R.A. No. 7610.
Third, Caballo insisted promise that he would marry that cause
She could not be considered for purposes of applying RA 7610 AAA to yield to the promise of Caballo leading her to give in to
to be considered as a child, it is not shown by the prosecution his desire. Lastly, Caballo was rash and unexpected actions
that she is fully unable to take care of herself. following AAA to her room, which was a sign that it was
coercion.
ELEMENTS OF SECTION 5(B) OF RA 7610
1. The accused commits the act of sexual intercourse or Coercion or Influence, Defined
lascivious conduct. To note, the term "influence" means the "improper use of
2. The said act is performed with a child exploited in power or trust in any way that deprives a person of free will and
prostitution or subjected to other sexual abuse. substitutes another’s objective."
3. The child whether male or female, is below 18 years of
age. Meanwhile, "coercion" is the "improper use of x x x power to
compel another to submit to the wishes of one who wields it.
In the present case, the prosecution failed to present any
evidence showing that force or coercion attended Abello’s A promise to marry and the use of withdrawal method was
sexual abuse on AAA; the evidence reveals that she was asleep used to coerce or influence, coupled with assurances of safety
at the time these crimes happened and only awoke when she and promise unduly influenced AAA to have sexual intercourse
felt her breasts being fondled. with him.
What about the argument with respect to consent? the law no longer refers to Article 336 of the RPC, and the
AAA was still a minor, AAA under the law, he cannot give perpetrator is prosecuted solely under R.A. No. 7610.
consent.
(c) Those who derive profit or advantage therefrom, whether as
Under RA 7610, consent is immaterial, the persons covered manager or owner of the establishment where the prostitution
under RA 7610 cannot give consent to any sexual intercourse takes place, or of the sauna, disco, bar, resort, place of
of sexual abuse. entertainment or establishment serving as a cover or which
engages in prostitution in addition to the activity for which the
PEOPLE v. CAOILI GR 196342 (2017) license has been issued to said establishment.
Accordingly, for the guidance of public prosecutors and the
courts, the Court takes this opportunity to prescribe the SECTION 6. Attempt to Commit Child Prostitution
following guidelines in designating or charging the proper There is an attempt to commit child prostitution under Section
offense in case lascivious conduct is committed under Section 5, paragraph (a) hereof when any person who, not being a
5(b) of R.A. No. 7610, in determining the imposable penalty: 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,
1. The age of the victim is taken into consideration in apartelle or other similar establishments, vessel, vehicle or any
designating or charging the offense, and in determining the other hidden or secluded area under circumstances which
imposable penalty. would lead a reasonable person to believe that the child is
about to be exploited in prostitution and other sexual abuse.
2. If the victim is under twelve (12) years of age, the
nomenclature of the crime should be "Acts of Lasciviousness There is also an attempt to commit child prostitution, under
under Article 336 of the Revised Penal Code in relation to paragraph (b) of Section 5 hereof when any person is receiving
Section 5(b) of R.A. No. 7610." Pursuant to the second proviso in services from a child in a sauna parlor or bath, massage clinic,
Section 5(b) of R.A. No. 7610, the imposable penalty is reclusion health club and other similar establishments.
temporal in its medium period.
A penalty lower by two (2) degrees than that prescribed for the
consummated felony under Section 5 hereof shall be imposed
3. If the victim is exactly twelve (12) years of age, or more than
upon the principals of the attempt to commit the crime of child
twelve (12) but below eighteen (18) years of age, or is eighteen
prostitution under this Act, or, in the proper case, under the
(18) years old or older but is unable to fully take care of
Revised Penal Code.
herself/himself or protect herself/himself from abuse, neglect,
cruelty, exploitation or discrimination because of a physical or
NOTE: The nomenclature is used under the RPC, the
mental disability or condition, the crime should be designated
circumstances apply.
as "Lascivious Conduct under Section 5(b) of R.A. No. 7610,"
and the imposable penalty is reclusion temporal in its medium
SECTION 7. Child Trafficking
period to reclusion perpetua.
Any person who shall engage in trading and dealing with
children including, but not limited to, the act of buying and
Age of Victim and Proper Chargeable Penalty selling of a child for money, or for any other consideration, or
Rape Lascivious Conduct
barter, shall suffer the penalty of reclusion temporal to
Under 12 years Article 266-A (1) (d) Article 336 of RPC for
reclusion perpetua. The penalty shall be imposed in its
of age of RPC for Acts of Lasciviousness
Statutory Rape maximum period when the victim is under twelve (12) years of
12 years and Select between but Lascivious Conduct age.
above but not both: under Section 5(b) of
below 18 1. Art. 266-A of RPC Ra 7610 SECTION 9. Obscene Publications and Indecent Shows
years; 18 except (1)(d) Any person who shall hire, employ, use, persuade, induce or
above but 2. Section 5(b) of coerce a child to perform in obscene exhibitions and indecent
considered as RA 7610. shows, whether live or in video, or model in obscene
child under
publications or pornographic materials or to sell or distribute
Section 3(a)
As discussed in People v. Dahilig (rape); People v. Caoili (lascivious conduct)
the said materials shall suffer the penalty of prision mayor in its
medium period. If the child used as a performer, subject or
Thus, pursuant to this proviso, it has been held that before an seller/distributor is below twelve (12) years of age, the penalty
accused can be convicted of child abuse through lascivious shall be imposed in its maximum period.
conduct on a minor below 12 years of age, the requisites for act
of lasciviousness under Article 336 of the RPC must be met in Any ascendant, guardian, or person entrusted in any capacity
addition to the requisites for sexual abuse under Section 5 of with the care of a child who shall cause and/or allow such child
R.A. No. 7610. to be employed or to participate in an obscene play, scene, act,
movie or show or in any other acts covered by this section shall
Conversely, the nomenclature of the offense should be suffer the penalty of prision mayor in its medium period.
Lascivious Conduct under Section 5(b) of R.A. No. 7610, since
SECTION 10. Other Acts of Neglect, Abuse, Cruelty or amended, the Revised Penal Code, for the crimes of qualified
Exploitation and Other Conditions Prejudicial to the Child's seduction, acts of lasciviousness with the consent of the
Development. offended party, corruption of minors, and white slave trade,
respectively, shall be one (1) degree higher than that imposed
(a) Any person who shall commit any other acts of child abuse, by law when the victim is under twelve (12) years age.
cruelty or exploitation or to be responsible for other conditions
prejudicial to the child's development including those covered by The victim of the acts committed under this section shall be
Article 59 of Presidential Decree No. 603, as amended, but not entrusted to the care of the Department of Social Welfare and
covered by the Revised Penal Code, as amended, shall suffer the Development.
penalty of prision mayor in its minimum period.
CASES UNDER SECTION 10(A)
(b) Any person who shall keep or have in his company a minor,
twelve (12) years or under or who in ten (10) years or more his SANCHEZ v. PEOPLE
junior in any public or private place, hotel, motel, beer joint, Accused here were charged for violation Section 10(A), BBB, is
discotheque, cabaret, pension house, sauna or massage parlor, a 16-year-old minor, she was the daughter of F and M, who was
beach and/or other tourist resort or similar places shall suffer the occupying a nipa hut, along 7am in the morning, when B was
penalty of prision mayor in its maximum period and a fine of not cutting grass, appellant searched for F, B noticed had appellant
less than Fifty thousand pesos (P50,000): Provided, That this had sickle, F was not in the place. Appellant destroyed the
provision shall not apply to any person who is related within the house, M was angry. Appellant was carrying gasoline to their
fourth degree of consanguinity or affinity or any bond recognized house, warned that he would burned the house. Appellant
by law, local custom and tradition or acts in the performance of grabbed a piece of wood and beat B and B pushed the
a social, moral or legal duty. appellant, appellant strike three times of wood to her body. In
the medical certificate, she was struck three times in her thigh
(c) Any person who shall induce, deliver or offer a minor to any and the buttock.
one prohibited by this Act to keep or have in his company a minor
as provided in the preceding paragraph shall suffer the penalty Appellants posits that this is a case not for child abuse, for B’s
of prision mayor in its medium period and a fine of not less than physical injuries were clear. The accused defended for the acts
Forty thousand pesos (P40,000); Provided, however, That should were not prejudicial to the development of the child for the child
the perpetrator be an ascendant, stepparent or guardian of the was not humiliated, hurt in front of money people.
minor, the penalty to be imposed shall be prision mayor in its
maximum period, a fine of not less than Fifty thousand pesos The contention was bereft of merit, the punishable acts:
(P50,000), and the loss of parental authority over the minor. As gleaned from the foregoing, the provision punishes not only
those enumerated under Article 59 of Presidential Decree No.
(d) Any person, owner, manager or one entrusted with the 603, but also four distinct acts, i.e., (a) child abuse, (b) child
operation of any public or private place of accommodation, cruelty, (c) child exploitation and (d) being responsible for
whether for occupancy, food, drink or otherwise, including conditions prejudicial to the child’s development.
residential places, who allows any person to take along with him
to such place or places any minor herein described shall be The enumeration for being responsible for the conditions is an
imposed a penalty of prision mayor in its medium period and a altogether separate basis, it should not have based in
fine of not less than Fifty thousand pesos (P50,000), and the loss connection with the other three. Such that in cases of child
of the license to operate such a place or establishment. abuse, there need not be proof, there is no need to show, it is
enough to show that it was shown that their child abuse.
(e) Any person who shall use, coerce, force or intimidate a street
child or any other child to; Contrary to petitioner’s assertion, an accused can be
(1) Beg or use begging as a means of living; prosecuted and be convicted under Section 10(a), Article VI of
(2) Act as conduit or middlemen in drug trafficking or Republic Act No. 7610 if he commits any of the four acts
pushing; or therein. The prosecution need not prove that the acts of child
(3) Conduct any illegal activities, shall suffer the penalty of abuse, child cruelty and child exploitation have resulted in the
prision correccional in its medium period to reclusion prejudice of the child because an act prejudicial to the
perpetua. development of the child is different from the former acts.
For purposes of this Act, the penalty for the commission of acts Appellant contends that, after proof, the act should not be
punishable under Articles 248, 249, 262, paragraph 2, and 263, considered as child abuse but merely as slight physical injuries
paragraph 1 of Act No. 3815, as amended, the Revised Penal defined and punishable under Article 266 of the Revised Penal
Code, for the crimes of murder, homicide, other intentional Code. Appellant conveniently forgets that when the incident
mutilation, and serious physical injuries, respectively, shall be happened, VVV was a child entitled to the protection extended
reclusion perpetua when the victim is under twelve (12) years by R.A. No. 7610, as mandated by the Constitution.
of age. The penalty for the commission of acts punishable
under Article 337, 339, 340 and 341 of Act No. 3815, as
As defined in the law, child abuse includes physical abuse of the teacher, herein petitioner, who was then asleep on a bamboo
child, whether the same is habitual or not. The act of appellant sofa.
falls squarely within this definition. We, therefore, cannot
accept appellant's contention. Petitioner asked Michael to apologize, the latter, however,
proceeded instead to his seat. Petitioner then pinched Michael
PEOPLE v. BONGALON GR 169533 (2013) on his thigh, held him up by his armpits and pushed him to the
Bongalon was charged under Section 10, it was alleged that floor causing him to hit a desk and, consequently, losing his
Bongalon physically abused and maltreated Jason, that when consciousness. Petitioner proceeded to pick Michael by his ears
the procession passed in front of the petitioner’s house, the and repeatedly slammed him down on the floor.
latter’s daughter Mary Ann Rose, also a minor, threw stones at
Jayson and called him "sissy"; that the petitioner confronted Petitioner contends that she did not deliberately inflict the
Jayson and Roldan and called them names like "strangers" and physical injuries suffered by Michael to maltreat or malign him
"animals"; that the petitioner struck Jayson at the back with his in a manner that would debase, demean or degrade his dignity
hand, and slapped Jayson on the face; that the petitioner then and avers that her maltreatment is only an act of discipline that
went to the brothers’ house and challenged Rolando dela Cruz, she as a schoolteacher could reasonably do towards the
their father, to a fight. Bongalon to protect his daughter. development of the child. She insisted the acts were under the
acts of loco parentis.
Grade VI pupil of MABA Institute, Legazpi City, acts of physical
abuse and/or maltreatment by striking said JAYSON DELA The court states that the contention is untenable. Excessive
CRUZ with his palm hitting the latter at his back and by slapping discipline. In this case, the schoolteacher was not content, the
said minor hitting his left cheek and uttering derogatory student already fainted, and she continued bumping the head
remarks to the latter’s family to wit: "Mga hayop kamo, para of the child, even after previously fainted. The act was
dayo kamo digdi, Iharap mo dito ama mo" (You all animals, you considered a corporal punishment.
are all strangers here. Bring your father here), which acts of the
accused are prejudicial to the child’s development and which In the crime charged against the petitioner, therefore, the
demean the intrinsic worth and dignity of the said child as a maltreatment may consist of an act by deeds or by words that
human being. debases, degrades or demeans the intrinsic worth and dignity
of a child as a human being. The act need not be habitual. The
The acts of Bongalon did not constitute acts of Child Abuse physical pain experienced by the victim had been aggravated
under RA 7610 because it was established that his laying of was by an emotional trauma that caused him to stop going to
not sufficiently proven. school altogether out of fear of the petitioner, compelling his
parents to transfer him to another school where he had to
The records did not establish beyond reasonable doubt that his adjust again.
laying of hands on Jayson had been intended to debase the
"intrinsic worth and dignity" of Jayson as a human being, or that Such established circumstances proved beyond reasonable
he had thereby intended to humiliate or embarrass Jayson. doubt that the petitioner was guilty of child abuse by deeds
that degraded and demeaned the intrinsic worth and dignity of
The records showed the laying of hands on Jayson to have been Michael Ryan as a human being. Hence, petitioner Rosaldes is
done at the spur of the moment and in anger, indicative of his guilty of the crime of child abuse punished under RA 7610.
being then overwhelmed by his fatherly concern for the
personal safety of his own minor daughters who had just
suffered harm at the hands of Jayson and Roldan.
With the loss of his self-control, he lacked that specific intent to

debase, degrade or demean the intrinsic worth and dignity of a
child as a human being that was so essential in the crime of
child abuse.
There was the absence of the intent to degrade and diminish

the dignity of the children. However, he is still liable for slight
physical injuries under Article 266(1) of the Revised Penal
Code for there was medical attendance for 5-7 days.
ROSALDES v. PEOPLE GR 173988 (2014)

The petitioner Felina Rosaldes, a public schoolteacher, was
charged and found guilty of child abuse punished under RA
7610. It appears from the records that seven-year-old Michael
Ryan Gonzales, then a Grade 1 pupil, was hurriedly entering his
classroom when he accidentally bumped the knew of his
RA 9745 (13) The use of psychoactive drugs to change the

perception, memory. alertness or will of a person, such
ANTI-TORTURE ACT OF 2009
as: (i) The administration or drugs to induce
confession and/or reduce mental competency; or (ii)
What is Torture? [Section 3(a)] The use of drugs to induce extreme pain or certain
Torture refers to an act by which severe pain or suffering, symptoms of a disease; and
whether physical or mental, is intentionally inflicted on a person (14) Other analogous acts of physical torture; and
for such purposes as:
• obtaining from him/her or a third person information Section 4(b). Mental or Psychological Torture
or a confession; This refers to acts committed by a person in authority or agent
• punishing him/her for an act he/she or a third person of a person in authority which are calculated to affect or
has committed or is suspected of having committed; confuse the mind and/or undermine a person's dignity and
• or intimidating or coercing him/her or a third person; morale, such as:
• or for any reason based on discrimination of any kind, (1) Blindfolding;
when such pain or suffering is inflicted by or at the (2) Threatening a person(s) or his/her relative(s) with
instigation of or with the consent or acquiescence of bodily harm, execution or other wrongful acts;
a person in authority or agent of a person in authority. (3) Confinement in solitary cells or secret detention
places;
It does not include pain or suffering arising only from, inherent (4) Prolonged interrogation;
in or incidental to lawful sanctions. (5) Preparing a prisoner for a "show trial", public display
• Lawful sanction being imprisonment, these are not or public humiliation of a detainee or prisoner;
considered as tortures. (6) Causing unscheduled transfer of a person deprived of
liberty from one place to another, creating the belief
PUNISHABLE ACTS OF TORTURE (Section 4) that he/she shall be summarily executed;
(7) Maltreating a member/s of a person's family;
Physical Torture [Section 4(a)] (8) Causing the torture sessions to be witnessed by the
(a) Physical torture is a form of treatment or punishment person's family, relatives or any third party;
inflicted by a person in authority or agent of a person in (9) Denial of sleep/rest;
authority upon another in his/her custody that causes severe (10) Shame infliction such as stripping the person naked,
pain, exhaustion, disability or dysfunction of one or more parts parading him/her in public places, shaving the victim's
of the body, such as: head or putting marks on his/her body against his/her
(1) Systematic beating, headbanging, punching, kicking, will;
striking with truncheon or rifle butt or other similar (11) Deliberately prohibiting the victim to communicate
objects, and jumping on the stomach; with any member of his/her family; and
(2) Food deprivation or forcible feeding with spoiled (12) Other analogous acts of mental/psychological torture.
food, animal or human excreta and other stuff or
substances not normally eaten; Section 5. Other Cruel, Inhuman and Degrading Treatment
(3) Electric shock; or Punishment - Other cruel, inhuman or degrading treatment
(4) Cigarette burning; burning by electrically heated rods, or punishment refers to a deliberate and aggravated treatment
hot oil, acid; by the rubbing of pepper or other or punishment not enumerated under Section 4 of this Act,
chemical substances on mucous membranes, or acids inflicted by a person in authority or agent of a person in
or spices directly on the wound(s); authority against another person in custody, which attains a
(5) The submersion of the head in water or water polluted level of severity sufficient to cause suffering, gross humiliation
with excrement, urine, vomit and/or blood until the or debasement to the latter.
brink of suffocation;
(6) Being tied or forced to assume fixed and stressful The assessment of the level of severity shall depend on all the
bodily position; circumstances of the case, including the duration of the
(7) Rape and sexual abuse, including the insertion of treatment or punishment, its physical and mental effects and,
foreign objects into the sex organ or rectum, or in some cases, the sex, religion, age and state of health of the
electrical torture of the genitals; victim.
(8) Mutilation or amputation of the essential parts of the
body such as the genitalia, ear, tongue, etc.; NOTE: The enumeration of the law is not exclusive.
(9) Dental torture or the forced extraction of the teeth;
(10) Pulling out of fingernails; WHO ARE CRIMINALLY LIABLE FOR TORTURE?
(11) Harmful exposure to the elements such as sunlight Section 13. Who are Criminally Liable. - Any person who
and extreme cold; actually participated Or induced another in the commission of
(12) The use of plastic bag and other materials placed over torture or other cruel, inhuman and degrading treatment or
the head to the point of asphyxiation; 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 SECTION 15. Torture as a Separate and Independent Crime
principal Torture as a crime shall not absorb or shall not be absorbed by
any other crime or felony committed as a consequence, or as a
Any superior military, police or law enforcement officer or means in the conduct or commission thereof.
senior government official who issued an order to any lower
ranking personnel to commit torture for whatever purpose shall In which case, torture shall be treated as a separate and
be held equally liable as principals. independent criminal act whose penalties shall be imposable
without prejudice to any other criminal liability provided for by
The immediate commanding officer of the unit concerned of domestic and international laws.
the AFP or the immediate senior public official of the PNP and
other law enforcement agencies shall be held liable as a Example: Serious physical injuries due to torture, separate
principal to the crime of torture or other cruel or inhuman and informations must be filed for such, one for serious physical
degrading treatment or punishment for any act or omission, or injuries and one for torture.
negligence committed by him/her that shall have led, assisted,
abetted or allowed, whether directly or indirectly, the SECTION 22. Applicability of the Revised Penal Code
commission thereof by his/her subordinates. The provisions of the Revised Penal Code insofar as they are
applicable shall be suppletory to this Act. Moreover, if the
If he/she has knowledge of or, owing to the circumstances at commission of any crime punishable under Title Eight (Crimes
the time, should have known that acts of torture or other cruel, Against Persons) and Title Nine (Crimes Against Personal
inhuman and degrading treatment or punishment shall be Liberty and Security) of the Revised Penal Code is attended by
committed, is being committed, or has been committed by any of the acts constituting torture and other cruel, inhuman
his/her subordinates or by others within his/her area of and degrading treatment or punishment as defined herein, the
responsibility and, despite such knowledge, did not take penalty to be imposed shall be in its maximum period.
preventive or corrective action either before, during or
immediately after its commission, when he/she has the NOTE: If its accompanied by acts of torture, it is treated as a
authority to prevent or investigate allegations of torture or special aggravating circumstance.
other cruel, inhuman and degrading treatment or punishment
but failed to prevent or investigate allegations of such act, SECTION 17. Applicability of the Refouler
whether deliberately or due to negligence shall also be liable as No person shall be expelled, returned or extradited to another
principals. State where there are substantial grounds to believe that such
person shall be in danger of being subjected to torture.
Any public officer or employee shall be liable as an accessory if
he/she has knowledge that torture or other cruel, inhuman and For the purposes of determining whether such grounds exist,
degrading treatment or punishment is being committed and the Secretary of the Department of Foreign Affairs (DFA) and
without having participated therein, either as principal or the Secretary of the DOJ, in coordination with the Chairperson
accomplice, takes part subsequent to its commission in any of of the CHR, shall take into account all relevant considerations
the following manner: including, where applicable and not limited to, the existence in
(a) By themselves profiting from or assisting the offender the requesting State of a consistent pattern of gross, flagrant
to profit from the effects of the act of torture or other or mass violations of human rights.
cruel, inhuman and degrading treatment or
punishment; NOTE: Valid bar or obstacle from the extradition or deportation
(b) By concealing the act of torture or other cruel, of the person. It shall be determined by the specified agencies.
inhuman and degrading treatment or punishment
and/or destroying the effects or instruments thereof Read also: RA 9775 Child Pornography
in order to prevent its discovery; or
(c) By harboring, concealing or assisting m the escape of
the principal/s in the act of torture or other cruel,
inhuman and degrading treatment or punishment:
Provided, That the accessory acts are done with the
abuse of the official's public functions.
NOTE: There is no need for to show that the superior gave the
order, by reason of negligence directly or indirectly, then the
immediate officer may be held liable under the concept of
command responsibility.
Despite knowledge and failure to prevent or investigate before

or after the commission, you are still held liable under the
concept of command responsibility.
CRIMINAL LAW II Who is the Offender?

The offender is a private individual, because if he is a public
REVISED PENAL CODE
officer, the crime is arbitrary detention under Article 124. But
take not it is not merely public officer who is vested with
TITLE IX
authority to detain or order the detention of persons, such as
CRIMES AGAINST PERSONAL LIBERTY police officers or members of the NBI, if he or she has no
AND SECURITY authority, he is deemed acting private capacity, hence Article
267 is applicable. Thus, if you have no power to detain, under
CHAPTER ONE the attendance of several circumstances shall apply.
CRIMES AGAINST PERSONAL LIBERTY
What is the Gravamen?
Section One. – Illegal Detention Shall kidnap or detain another, or in any other manner deprive
him of his liberty – this is the overt act being punished in this
provision.
ARTICLE 267. Kidnapping and serious illegal detention. –
Any private individual who shall kidnap or detain another, or
in any other manner deprive him of his liberty, shall suffer the What is the Test to Determine Deprivation of Liberty?
penalty of reclusion perpetua to death: The test is the restraint on liberty, not restraint on locomotion.
1. If the kidnapping or detention shall have lasted It is not indispensable for the offender to cause restraint of
more than three days; locomotion, it is enough to restraint liberty, like being in a
2. If it shall have been committed simulating public certain area under control of the offender. Even if the victim has
authority; the freedom of locomotion but prohibited area. Locomotion
3. If any serious physical injuries shall have been
means the freedom of movement of the individual. Since it does
inflicted upon the person kidnapped or detained, or
if threats to kill him shall have been made; not merely refer to restraint in the movement, it also includes
4. If the person kidnapped or detained shall be a movement to places to go, capacity to leave or not leave the
minor, except when the accused is any of the area.
parents, female, or a public officer.
PEOPLE v. TOMIO GR 74630, 1991
The penalty shall be death where the kidnapping or detention Information: That on or about May 2, 1986, and subsequently
was committed for the purpose of extorting ransom from the thereafter, in the City of Manila, Philippines, the said accused,
victim or any other person, even if none of the circumstances conspiring and confederating together with six (6) others whose true
above mentioned were present in the commission of the names, real Identities and present whereabouts are still unknown and
offense. helping one another, being then private individuals, did then and there
wilfully, unlawfully and feloniously, for the purpose of extorting ransom
When the victim is killed or dies as a consequence of the from the immediate family of TATSUMI NAGAO, kidnap or detain the
detention or is raped or is subjected to torture or
latter and deprive him of his liberty, without legal justifications and
dehumanizing acts, the maximum penalty shall be imposed.
against his will.
ELEMENTS (PPKI-TSS-MFP) What did the accused do here? Tatsumi was a tourist in Holiday
1. That the offender: Inn, these two persons talked to him and offered services as
a. A Private individual who is not any of the tour guide to introduce entertainment places and that they will
parents of the victim nor the female; guide, they obtained his trust and confidence.
b. A Public officer who has no duty under the
law to detain a person. Thereafter, one of the accused placed a box of cigarettes in his
2. That he Kidnaps or detains another, or in nay other shirt pocket, persons disguised as police arrested him, the
means deprive the latter of his liberty; content of cigarette was marijuana. They offered him liberty, on
3. That the act of detention of kidnapping must be Illegal the pretext of him paying a certain amount in this mock arrest.
4. That in the commission of the offense, any of the What they do, they shuttled him from one place to another, he
following circumstances are present: was not restrained in a room, he was put under constant
a. That the kidnapping or detention lasts for surveillance, until he was able to produce money upon sending
more than Three days; money. Therein, the real police conducted an entrapment. Thus
b. That it is committed Simulating public this case of serious illegal detention.
authority;
c. That any Serious physical injuries are inflicted Defense: Mr. Nagao was no restraint of his liberty; he was free
upon the person kidnapped or detained or and could have easily escaped.
Threats to kill him are made;
d. That the person kidnapped or detained is a: Rule: There is no doubt in Our mind that during the period from
i. Minor; 3 May 1986 until the accused-appellants were arrested on 12
ii. Female; or May 1986, complainant was moved from one hotel to another
iii. Public official. by the appellants, effectively depriving him of his liberty.
As correctly observed by the Solicitor General, while it may be

conceded that complainant had the freedom of locomotion, he There was no need to kidnap a minor and force her to work
"did not have the freedom to leave the hotel premises at will against her will. The appellant had everything to lose and
and go wherever he pleased. nothing to gain if it is true that she kidnapped the two children.
No motive was ever propounded by the prosecution.
Appellants never refuted the testimony of Nagao made during
cross-examination, that at the hotel they told him that if he did We are thus ushered to applying the precept that though proof
not pay them the amount demanded the policemen, plus the of motive is not indispensable to conviction, yet a void in the
hotel bills and other expenses, would do something to him; evidence in this respect discloses a weakness in the case for the
they kept on telling him that if he did not pay them, the prosecution.
policemen would arrest him.
NOTE: Here there was no detention, and that there was no
PEOPLE v. MAMENG LIM GR 86454 (1990) impelling motive to detain the two accused.
Information. That on or about July 1, 1986, in the afternoon
thereof, at Zurbito Street, Municipality of Masbate, Province of If Deprivation of Liberty Enough?
Masbate, Philippines, within the jurisdiction of this court, the No, the detention must be illegal. The detention considered to
said accused who are private persons conspired and mutually be illegal, when not ordered competent authority or not
helped each other, did then and there willfully, unlawfully and permitted by law. Like a citizen’s arrest is allowed when a crime
feloniously kidnap Aida and Avelyn both minors and surnamed is being committed in his presence. Otherwise, the detention is
Villanueva; separating them from their parental care; Aida considered illegal.
Villanueva was detained for about twenty (20) days in the house
of Carmen Lim alias "Mameng" while Avelyn Villanueva was The Illegal Detention is Serious Upon the Circumstances
detained and brought to Cebu City by the co-accused thereby 1. Kidnapping or detention lasts for more than three
depriving the two, Aida and Avelyn of their personal liberties. days;
2. Committed simulating public authority;
3. Any serious physical injuries are inflicted or threats to
Facts: Aida and Avelyn were sent by their father to buy rice. kill are made.
They were made to buy to the neighboring town. After buying 4. The person detained is a minor, female, or a public
rice, they must wait in the pier, but their mother did not arrive. officer;
They went to the theater in Masbate. Around 2PM, Mameng 5. Committed for the purpose of extorting ransom
Lim saw them, she saw these two minors and called them telling (although not mentioned in the enumeration, this is a
them that they were to be clothed. They were made to clean qualifying circumstance to death; and if ransom is also
and do household chores. involved.)
The father went there, the accused did not accede to the release Ransom
of the children. Money, price or consideration paid demanded for redemption
of a captured person or persons, a payment that releases from
Was there Kidnapping? captivity.
No. There is no kidnapping in this case. The two minors
voluntarily entered the appellant's residence through the front PEOPLE v. TOMIO
entrance. The fact of detention which is an essential element in Defense: The money demanded from Nagao was not “ransom
the crime charged, was not clearly established. There was no money”. It was allegedly reimbursement for expenses incurred
showing that there was actual confinement or restriction of the by them to assist Nagao. And that it was loan for the money
person of the offended party. advanced used to bribe the police.
The appellant's residence has a store fronting the street where This was not meritorious. We are not persuaded by the theory
many customers presumably come and go. The place is busy of the appellants that money involved was not ransom money,
with a movie house in front. There is no indication that Aida was but rather payment of hotel bills (as claimed by Tagahiro
locked up, physically restrained of her liberty or unable to Nakajima) or for reimbursement of the sum they advanced to
communicate with anyone. pay the policemen and for hotel accommodations and
additional expenses spent for complainant (as claimed by
There is no motive whatsoever for the appellant to kidnap the Tomio Maeda). In the first place, none of them claimed that
two children. The appellant is a woman of sufficient means. It is either or both of them advanced the money to the police. As a
undisputed that she is the owner of a store and was the matter of fact, Tagahiro Nakajima testified that he saw the
employer of two maids at the time of the incident. She did not complainant counting the money.
know the two children prior to the incident. Had she wanted to
hire an additional maid, she could certainly afford to hire What then was the money they advanced to the police?
another one without going to the extent of committing a crime Nothing. However, they succeeded in making it appear to Mr.
as serious as kidnapping. Nagao, after they came out of the room at the Southern Police
District, that they advanced the amount to the police, for which crime of kidnaping with murder. (2) if killing was afterthought
reason he was released. This was part of the stratagem to give two crimes. This was an old rule.
a semblance of legality to the demand for ransom.
Rule: Where the person kidnapped is killed in the course of the
Now then, if indeed the appellants only wanted reimbursement detention, regardless of whether the killing was purposely
for the money "paid" to the police, and that they were merely sought or was merely an afterthought, the kidnapping and
motivated by a desire to help a fellow Japanese in distress, why murder or homicide can no longer be complexed under Art. 48,
did they have to bring him from one expensive hotel to the nor be treated as separate crimes, but shall be punished as a
other, thereby incurring more expenses? Why did they not special complex crime under the last paragraph of Art. 267, as
bring him to their homes, as the trial court asked, if only to show amended by RA No. 7659. (People v. Ramos, 1998).
their genuine concern for him?
PEOPLD v. PADICA GR 102645 (1993)
Even granting that there was a simple loan contract: The victim was a high school student about to go home, his
The deprivation of the former's liberty until the amount shall best friend was fetched, the driver of the vehicle was Padica, the
have been fully "paid" to them, is still kidnapping or illegal persons lured the victim, that they will bring them home. They
detention for ransom. Since the accused in this case demanded were brought in a secluded place in Laguna, they killed the
and received money as a requisite for releasing Tatsumi Nagao victim and stabbed he died instantaneously. From Paranaque
from their hold, whatever other motive may have impelled to Laguna. The parents were worried, they received a call, the
them to do so, the money is still "ransom" under the law. accused called them.
Must there be actual payment of ransom? If there is non-payment of ransom of P500K, we will not release
No need. So long as the payment for the made for extorting for the son held in captivity. Unknown to them, their son was
ransom as long as there is demand for ransom, as long as the already dead when the demand for ransom was already made.
kidnapping or committed in such. They agreed on a place for the ransom, and was reduced to
P23,000 for such. Entrapment and discovery of death.
PEOPLE v. SILONGAN GR 137182
For the crime to be committed, at least one overt act of Issue: Was the accused correctly charged with the complex
demanding ransom must be made. It is not necessary that there crime of kidnapping for ransom with murder?
be actual payment of ransom because what the law requires is
merely the existence of the purpose of demanding ransom. In Is there intent detain the victim? No. At the outset, from the
this case, the records are replete with instances when the evidence on record, we are not convinced that the crime of
kidnappers demanded ransom from the victim. kidnapping for ransom was committed as charged in both the
original and amended informations. Rather the crime
At the mountain hideout in Maganoy where Alexander was first committed was murder, attended by the qualifying
taken, he was made to write a letter to his wife asking her to circumstances of treachery and/or abuse of superior strength,
pay the ransom of twelve million pesos. Among those who and not the complex crime of kidnapping for ransom with
demanded ransom were the appellants Ramon Pasawilan, murder as found by the trial court without objection by either
Sacaria Alon, and Jumbrah Manap. Then, when Alexander was the prosecution or defense.
in the custody of Mayangkang Saguile, not only was he made
to write more letters to his family, Mayangkang himself wrote Why? The essential element in the crime of kidnapping that the
ransom notes. In those letters, Mayangkang even threatened to victim must have been restrained or deprived of his liberty, 19
kill Alexander if the ransom was not paid. or that he was transported away against his will with the
primary or original intent to effect that restraint, is absent in this
RULES IN APPRECIATING CIRCUMSTANCES case. The malefactors evidently had only murder in their hearts
Rule 1: If any of the other circumstances is present, detention when they invited the trusting Francis Banaga to go with them
for more than three days is not necessary. to Laguna, and not to confine or detain him for any length of
time or for any other purpose.
Rule 2: When it is committed for the purpose of extorting
ransom, it is not necessary that one or any of such The malefactors evidently had only murder in their hearts when
circumstances must be present. they invited the trusting Francis Banaga to go with them to
• Ransom is not indispensable, as long as there can be Laguna, and not to confine or detain him for any length of time
four other circumstances. or for any other purpose.
Special Complex Crime of Kidnapping with Murder The malefactors evidently had only murder in their hearts when
It gives rise to the several special complex crimes like they invited the trusting Francis Banaga to go with them to
kidnapping and murder; before the amendment of RA 7659, Laguna, and not to confine or detain him for any We have
the rule was to kidnapped victim was subsequently killed by his consistently held that where the taking of the victim was
abductor, the crime committed would either be: (1) complex incidental to the basic purpose to kill, the crime is only murder,
and this is true even if, before the killing but for purposes
thereof, the victim was taken from one place to another. Thus, Special Complex Crime of Kidnapping with Rape
where the evident purpose of taking the victims was to kill
them, and from the acts of the accused it cannot be inferred People v. Mirandilla, Jr.
that the latter's purpose was actually to detain or deprive the GR 186417 | July 27, 2011
victims of their liberty, the subsequent killing of the victims

constitute the crime of murder, hence the crime of kidnapping Facts: AAA was detained for 39 days by Mirandilla. During a fiesta
in Legaspi City, AAA was dancing with her elder sister, BBB. AAA
does not exist and cannot be considered as a component felony
went out of the dancing hall to buy candies, while making her way
to produce a complex crime of kidnapping with murder.of time
back, a man grabber her, wrapped her shoulders, with a knifes point
or for any other purpose. thrust her right side whom was Mirandilla, Jr.
In addition, Francis Banaga, then already fourteen years of age He told her not to move or ask for help. After a four-hour walk
and a fourth year high school student, was neither forced nor through the grassy fields, they boarded a tricycle. After, Mirandilla
coerced unlawfully into going along with his killers. He dragged AAA out of the tricycle and pushed her inside a concrete
voluntarily boarded the car and went with the Marajas brothers house. At gunpoint he ordered her to remove her pants. When she
defied, he slapped her and hit her arms with a gun, forced his hands
to Laguna. The victim had every reason to trust them as they
inside her pants, into her panty, reaching her vagina, slipped his
were his neighbors in Gatchalian Subdivision. In fact, one of the
three fingers and rotated them inside. The pain weakened her. He
brothers, accused Leonardo Marajas alias "Eddie Boy," was his forcibly pulled her pants down and lifting her legs, pushed and
schoolmate and a playmate. pulled his penis inside.
The Act of Luring? When AAA woke up, she was alone. She cried for help, shouting until
There was treachery since, under the aforestated circumstances, her throat dried. No one heard her, and no rescue came. At around
the victim was lured by his killers into going with them to midnight, Mirandilla arrived together with his gang. Pointing a gun
at AAA, he ordered her to open her mouth and he forced his penis
Laguna without the slightest inkling of their nefarious design,
inside her mouth. After this, he dragged her to the tricycle and drove
coupled with the sudden and unexpected assault by the
her to another place.
malefactors on the hapless victim in the isolated sugarcane
plantation in Calamba, which thereby divested him of an At the roads side, Mirandilla pushed her against a reclining tree,
opportunity either to effectively resist or to escape. gagged her mouth with cloth, punched her arm, thigh and lap, and
pulled up her over-sized shirt. Her underwear was gone. Then she
What About the Demand of Ransom? felt Mirandilla’s penis inside her vagina. After that, they reached a
The demand for ransom appears to have arisen and was nipa hut and AAA was thrown inside. In there, her mouth was again
covered with cloth and raped her again. The following evening,
consequently made as an afterthought, as it was relayed to the
Mirandilla and his gang brought AAA to another city, where she was
victim's family very much later that afternoon after a sufficient
raped again.
interval for consultation and deliberation among the felons who
had killed the victim around five hours earlier. They repeated detained her at daytime, moved her back and forth
from one place to another on the following nights, she was locked
The fact alone that ransom money is demanded would not per up in a cell-type house and was raped repeatedly on the grassy field
se qualify the act of preventing the liberty of movement of the right outside her cell. On another city, they caged her in a small
victim into the crime of kidnapping unless the victim is actually house in the middle of a rice field. She was allegedly raped 27 times.
restrained or deprived of his liberty for some appreciable
One afternoon, AAA succeeded in opening the door of her cell,
period of time or that such restraint was the basic intent of the
seeing that Mirandilla and his gang were busy playing cards, she
accused. rushed outside and ran, crossed a river, got drenched and continued
running. She found a road and Evelyn Guevarra brought her to the
Absent such determinant intent and duration of restraint, the police. In the police station, pictures were presented to her and that
mere curtailment of freedom of movement would at most when she was able to identify.
constitute coercion.
The Court of Appeals convicted Mirandilla for the special complex
crime of kidnapping with rape, four counts of rape, and one count
Therefore, in cases where kidnapping is attended with the
of rape by sexual assault.
death of the victim, you only have to choose between two:
Crimes and Punishment

1. Special Complex Crime of Kidnapping with Murder
The court agrees with the Court of Appeals in finding Mirandilla
If in the course of the detention, the victim dies or is
guilty of the special complex crime of kidnapping with rape,
killed, regardless of whether the killing was purposely
instead of simple kidnapping. Mirandilla was kidnapped,
sought or was merely an afterthought.
detained for 39 days and was carnally abused with a gun.
2. Murder
Article 267, as amended by RA 7659, states when the victim is
If the original intent of the offender is to kill the victim,
killed or dies as a consequence of the detention or is raped or
the incidental deprivation of liberty merely constitutes
is subjected to torture or dehumanizing acts, the maximum
a preparatory act to the killing.
penalty shall be imposed.
This kind of provision gives rise to a special complex crime. This On August 12, 1998, Rusia testified before the trial court how the
arises where the law provides a single penalty for two or more crimes were committed and identified all the appellants as the
component offenses. perpetrators. He declared that his conduit to Francisco Juan
Larrañaga was Rowen Adlawan whom he met together with brothers
James Anthony and James Andrew Uy five months before the
Notably, however, no matter how many rapes had been
commission of the crimes charged.
committed in the special complex crime of Kidnapping with
Rape, the resultant crime is only one Kidnapping with Rape. At 10:30 in the evening, Rowen returned with Josman. They met
This is because, the composite acts are regarded as a single Rusia at the back exit of the Ayala Mall and told him to ride with
indivisible offense for RA 7659 punishes these acts with only one them in a white car. Rusia noticed that a red car was following them.
single penalty. Upon reaching Archbishop Reyes Avenue, same city, he saw two
women standing at the waiting shed. Rusia did not know yet that
their names were Marijoy and Jacqueline.
In a way, R.A. 7659 depreciated the seriousness of rape because
no matter how many times the victim was raped, like in the
Josman stopped the white car in front of the waiting shed and he
present case, there is only one crime committed the special and Rowen approached and invited Marijoy and Jacqueline to join
complex crime of kidnapping with rape. The court held that the them. But the sisters declined. Irked by the rejection, Rowen
separate informations of rape cannot be considered as separate grabbed Marijoy while Josman held Jacqueline and forced both girls
and distinct crimes. to ride in the car. Marijoy was the first one to get inside, followed by
Rowen. Meanwhile, Josman pushed Jacqueline inside and
People v. Larrañaga immediately drove the white car. Rusia sat on the front seat beside
421 SCRA 530 | February 3, 2004 Josman.
Facts: For most of the Cebuanos, the proceedings in these cases will Fourteen (14) meters from the waiting shed, Jacqueline managed to
always be remembered as the “trial of the century.” This involves the get out of the car. Josman chased her and brought her back into the
car. Not taking any more chances, Rowen elbowed Jacqueline on the
kidnapping and illegal detention of a college beauty queen along
with her comely and courageous sister. An intriguing tale of ribaldry chest and punched Marijoy on the stomach, causing both girls to
and gang rape was followed by the murder of the beauty queen. faint. Rowen asked Rusia for the packaging tape under the latter’s
seat and placed it on the girls’ mouths. Rowen also handcuffed them
She was thrown off a cliff into a deep-forested ravine where she was jointly.
left to die. Her sister was subjected to heartless indignities before
The cars sped to a house in Guadalupe, Cebu City known as the
she was also gang-raped. In the aftermath of the kidnapping and
rape, the sister was made to disappear. Where she is and what safehouse. Larrañaga, James Anthony and Rowen brought Marijoy
further crimes were inflicted upon her remain unknown and to one of the rooms, while Rusia and Josman led Jacqueline to
another room. Josman then told Rusia to step out so Rusia stayed
unsolved up to the present. There were four informations for
kidnapping and illegal detention against the appellants. at the living room with James Andrew. They remained in the house
for fifteen (15) to twenty (20) minutes. At that time, Rusia could hear
Larrañaga, James Anthony, and Rowen giggling inside the room.
On the night of July 16, 1997, sisters Marijoy and Jacqueline Chiong,
who lived in Cebu City, failed to come home on the expected time.
It was raining and Mrs. Thelma Chiong thought her daughters were Along the way, the van and the white car stopped by a barbeque
store. Rowen got off the van and bought barbeque and Tanduay
simply having difficulty getting a ride. Thus, she instructed her sons,
Bruce and Dennis, to fetch their sisters. They returned home without rum. They proceeded to Tan-awan. Then they parked their vehicles
Marijoy and Jacqueline. Mrs. Chiong was not able to sleep that night. near a precipice where they drank and had a pot session. Later, they
pulled Jacqueline out of the van and told her to dance as they
Immediately, at 5:00 o’clock in the morning, her entire family started encircled her.
the search for her daughters, but there was no trace of them. Thus,
She was pushed from one end of the circle to the other, ripping her
the family sought the assistance of the police still, they could not
find Marijoy and Jacqueline. clothes in the process. Meanwhile, Josman told Larrañaga to start
raping Marijoy who was left inside the van. The latter did as told and
after fifteen minutes emerged from the van saying, “who wants
Meanwhile, in the morning of July 18, 1997, a certain Rudy Lasaga
reported to the police that a young woman was found dead at the next?” Rowen went in, followed by James Anthony, Alberto, the
foot of a cliff. They found a dead woman lying on the ground. driver, and Ariel, the conductor. Each spent a few minutes inside the
Attached to her left wrist was a handcuff. Her pants were torn, her van and afterwards came out smiling.
orange t-shirt was raised up to her breast and her bra was pulled
down. Her face and neck were covered with masking tape. Then they carried Marijoy out of the van, after which Josman
brought Jacqueline inside the vehicle. Josman came out from the
It was Marijoy dressed in the same orange shirt and maong pants van after ten minutes, saying, “whoever wants next go ahead and
she wore when she left home on July 16, 1997. Upon learning of the hurry up” Rusia went inside the van and raped Jacqueline, followed
tragic reality, Mrs. Chiong became frantic and hysterical. She could As for Jacqueline, she was pulled out of the van and thrown to the
not accept that her daughter would meet such a gruesome fate. ground. Able to gather a bit of strength, she tried to run towards the
road. The group boarded the van, followed her and made fun of her
On May 8, 1998, the mystery that engulfed the disappearance of by screaming, “run some more.” There was a tricycle passing by. The
Marijoy and Jacqueline was resolved. Rusia, bothered by his group brought Jacqueline inside the van. Rowen beat her until she
conscience and recurrent nightmares, admitted before the police passed out. The group then headed back to Cebu City with James
having participated in the abduction of the sisters. He agreed to re- Andrew driving the white car. Rusia got off from the van somewhere
enact the commission of the crimes near the Ayala Center.
Kidnapping and Serious Illegal Detention ARTICLE 268. Slight illegal detention. – The penalty of
There is clear and overwhelming evidence that appellants, who reclusion temporal shall be imposed upon any private
are private individuals, forcibly dragged Marijoy and Jacqueline individual who shall commit the crimes described in the next
into the white car, beat them so they would not be able to resist, preceding article without the attendance of any of the
and held them captive against their will. In fact, Jacqueline circumstances enumerated therein.
attempted to free herself twice from the clutches of
The same penalty shall be incurred by anyone who shall
appellants—the first was near the Ayala Center and the second
furnish the place for the perpetration of the crime.
was in Tan-awan, Carcar—but both attempts failed. Marijoy was
thrown to a deep ravine, resulting to her death. Jacqueline, on If the offender shall voluntarily release the person so
the other hand, has remained missing until now. kidnapped or detained within three days from the
commencement of the detention, without having attained the
Special Complex Crimes under Article 267 purpose intended and before the institution of criminal
Article 267 states that if the victim is killed or died because of proceedings against him, the penalty shall be prision mayor in
its minimum and medium periods and a fine not exceeding
the detention or is raped or subjected to torture or
One hundred thousand pesos (P100,000).
dehumanizing acts, the maximum penalty shall be imposed.
The provision gives rise to a composite crime.
ELEMENTS (PriKIW)
Killed, Raped and Subjected Victims to Dehumanizing Acts 1. That the offender is a Private individual;
The prosecution was able to prove that Marijoy was pushed to 2. That he Kidnaps or detains another, or in any manner
a ravine and died. Both girls were raped by the gang. In deprive him of his liberty;
committing the crimes, appellants subjected them to 3. That the act of kidnapping or detention is Illegal and;
dehumanizing acts. From out review of the evidence present, 4. That the crime is committed Without the attendance
the court found the following dehumanizing acts: of the circumstances enumerated in Article 267.
1. Marijoy and Jacqueline were handcuffed and their
mouths mercilessly taped; Privileged Mitigating Circumstance
2. They were beaten to severe weakness during their Voluntary release within three days from the commence of the
detention; detention, without having attained the purpose intended
3. Jacqueline was made to dance amidst the rough before the institution of criminal proceeding.
manners and lewd suggestions of the appellants;
4. She taunted to run and forcibly dragged to van; and NOTE: It must not be under the attendant circumstance, at least
5. Until now, Jacqueline remains to be missing which one of the circumstance of Article 267 should not be present.
aggravates the Chiong family’s pain. This presupposes the absence of the enumerated
circumstances.
All told, considering that the victims were raped, that Marijoy
was killed and that both victims were subjected to ARTICLE 269. Unlawful arrest. – The penalty of arresto
dehumanizing acts, the imposition of the death penalty on the mayor and a fine not exceeding One hundred thousand pesos
appellants is in order. (P100,000) shall be imposed upon any person who, in any
case other than those authorized by law, or without
Considering that the prosecution was able to prove each of the reasonable ground therefor, shall arrest or detain another for
the purpose of delivering him to the proper authorities.
component offenses, appellants should be convicted of the
special complex crime of kidnapping and serious illegal
detention with homicide and rape. ELEMENTS (ADU)
1. That the offender Arrests or detains another person;
It appearing from the overwhelming evidence of the 2. That the purpose of the off ender is to Deliver him to
prosecution that there is a “direct relation, and intimate, the proper authorities; and
connection” between the kidnapping, killing and raping of 3. That the arrest or detention is Unauthorized by law
Marijoy, rape cannot be considered merely as an aggravating or there is no reasonable ground therefor.
circumstance but as a component offense forming part of the
herein complex crime. Who is the offender?
Any person, means a (1) private person who makes an arrest
From the evidence of the prosecution, there is no doubt that all without reasonable ground; or (2) public officer who has no
the appellants conspired in the commission of the crimes authority to arrest and detain a person, or who did not act in
charged. Their concerted actions point to their joint purpose his official capacity.
and community of intent. Well settled is the rule that in
conspiracy, direct proof of a previous agreement to commit a Otherwise when he has authority he shall be liable under
crime is not necessary. It may be deduced from the mode and Arbitrary Detention if he acted in his official capacity under
manner by which the offense was perpetrated or inferred from Article 124. In 124, it is reclusion temporal in 269, it is arresto
the acts of the accused themselves when such point to a joint mayor.
design and community of interest.
Q. How is it different from illegal detention? Dr. Ty did not have inkling where is the location of the child.
She cannot return the child, she needs to locate, she contacted
Purpose of the Detention a staff and where are the custodians of the child, because she
In unlawful arrest, the purpose of locking up or detaining the was not able to return, a case was filed against her.
victim is to deliver him to the proper authorities. In any other
case, the detention could be considered illegal detention. The Was there deliberate failure to return custody of minor?
purpose is the line which differentiates the two. The difference
between arresto mayor from RT or RP lies in the motive, you he essential element herein is that the offender is entrusted
determine it by subsequent action of bringing to authorities. with the custody of the minor but what is actually punishable is
not the kidnapping of the minor, as the title of the article seems
Regardless of the duration of the detention because the test is to indicate, but rather the deliberate failure or refusal of the
not the duration but the motive in effecting the detention. custodian of the minor to restore the latter to his parents or
There must be something you can point to prove to intent is to guardians. Said failure or refusal, however, must not only be
deliver to the proper authorities. deliberate but must also be persistent as to oblige the parents
or the guardians of the child to seek the aid of the courts in
Section Two. – Kidnapping of Minors order to obtain custody. he key word therefore of this element
is deliberate.
ARTICLE 270. Kidnapping and failure to return a minor. –
The penalty of reclusion perpetua shall be imposed upon any By the use of this word, in describing a crime, the idea is
person who, being entrusted with the custody of a minor conveyed that the perpetrator weighs the motives for the act
person, shall deliberately fail to restore the latter to his and its consequences, the nature of the crime, or other things
parents or guardians connected with his intentions, with a view to a decision thereon;
that he carefully considers all these, and that the act is not
ELEMENTS (CuF) suddenly committed. It implies that the perpetrator must be
1. That the offender is entrusted with the Custody of a capable of the exercise of such mental powers as are called into
minor person (less than 18 years old), and; use by deliberation and the consideration and weighing of
2. That he deliberated Fails to restore the said minor to motives and consequences.
his parents or guardian.
Essentially, the word deliberates as used in the article must
NOTE: The punishable act is not taking or detaining, the imply something more than mere negligence; it must be
offender even her is entrusted with the custody of the minor. It premeditated, obstinate, headstrong, foolishly daring or
is freely, voluntarily entrusted. intentionally and maliciously wrong.
The punishable act is the deliberate failure of the custodian In the case at bar, it is evident that there was no deliberate
to restore the latter to his parents or guardians. Failure arising refusal or failure on the part of the accused-appellants to
from the deliberate decision of the offender not to return restore the custody of the complainant’s child to her. When the
the minor. accused-appellant learned that complainant wanted her
daughter back after five (5) long years of apparent wanton
Article 267 and 270 Not in Conflict neglect, they tried their best to help herein complainant find
In Article 267, the minor is not entrusted unlike in 270, thus the child as the latter was no longer under the clinics care.
there is no conflict, you have to look at the manner by which
the minor was taken into custody. If the minor, after failure to Accused-appellant Dr. Ty did not have the address of Arabellas
act upon demand to return. guardians but as soon as she obtained it from Dr. Fe Mallonga
who was already working abroad, she personally went to the
PEOPLE v. TY GR 121519 (1996) guardian’s residence and informed them that herein
Ty is a doctor and owner of a hospital, there was this parent complainant wanted her daughter back.
who brought her daughter suffering from bronchitis, and she • These are badges and indications of good faith
had a child taken care of in the hospital. She left the child, after showing that there was no deliberate refusal.
three days, the child recovered and ready for discharge.
However, the parent had no money to pay for the hospital bills, The efforts taken by the accused-appellants to help the
and payment of needs, so she just leave her here. Ty stated that complainant in finding the child clearly negate the finding that
if left in the ward, it would be very costly, why do not hire a there was a deliberate refusal or failure on their part to restore
helper. The mother cannot pay the helper, and transferred the the child to her mother. Evidence is simply wanting in this
child in the nursery, staff took turns. regard. It is worthy to note that accused-appellants conduct
from the moment the child was left in the clinics care up to the
Years passed, the mother never returned, but they cannot time the child was given up for guardianship was motivated by
sustain the child, once and for all, they decided to have the child nothing more than an earnest desire to help the child and a
to be taken into custody of one of the relatives of staff the Neri high regard for her welfare and well-being. No criminal
Spouses and taken care of. After five years, the mother return. liability under Article 270.
PEOPLE v. AIDA MARQUEZ GR 181440 (2011) ELEMENTS (LivIn)

Marquez is a customer in the salon, the mother one of the 1. That a minor (less than 18 years old) is Living in the
employees of the salon, who has a three-month-old daughter. home of his parents or guardian; and
Marquez and Merano got acquainted and convinced to borrow 2. That the offender Induces the said minor to abandon
of the three-month-old daughter Justine. such home.
The following morning, she could no longer contract Marquez, What is the Gravamen of the Offense
she was constrained to go the Mayor Lim to ask for help, there What constitutes the crime is the act of inducing a minor to
was a summon Marquez. Marquez said is in the house of abandon his home, or the home of his and it is not necessary
spouses Castillo. She went there, and she discovered that she that the minor actually abandons the home.
sold the child for P60,000. She demanded, the spouses that they
are fond already of the daughter. Eventually she acceded and The act of abandoning must be by virtue of inducement. The
entered into a Kasulatan surrendering the custody of the child. inducement is the operative act which gives rise to liability.
She filed a case for Article 270.
Section Three. – Slavery and Servitude
One of the defenses of Marquez was the agreement for
adoption, that she surrendered the child. Subsumed under Human Trafficking
The following Articles 272-274 can be subsumed under the
Was there deliberate refusal? Human Trafficking under RA 7160 and RA 9372 as well as the
child abuse.
It is clear from the records of the case that Marquez was
entrusted with the custody of Justine. Whether this is due to ARTICLE 272. Slavery. – The penalty of prision mayor and a
Merano’s version of Marquez borrowing Justine for the day, or fine not exceeding 10,000 pesos shall be imposed upon
due to Marquez’s version that Merano left Justine at her house, anyone who shall purchase, sell, kidnap, or detain a human
it is undeniable that in both versions, Marquez agreed to the being for the purpose of enslaving him.
arrangement, i.e., to temporarily take custody of Justine. It does
not matter, for the first element to be present, how long said If the crime be committed for the purpose of assigning the
offended party to some immoral traffic, the penalty shall be
custody lasted as it cannot be denied that Marquez was the one
imposed in its maximum period.
entrusted with the custody of the minor Justine. Thus, the first
element of the crime is satisfied.
ELEMENTS (PE)
As to the second element, neither party disputes that on 1. That the offender, Purchases, sells, kidnaps or detains
September 6, 1998, the custody of Justine was transferred or a human being; and
entrusted to Marquez. Whether this lasted for months or only 2. That the purpose of the offender is to Enslave such
for a couple of days, the fact remains that Marquez had, at one human being.
point in time, physical and actual custody of Justine.
ARTICLE 273. Exploitation of child labor. – The penalty of
Marquez’s deliberate failure to return Justine, a minor at that prision correccional in its minimum and medium periods and
time, when demanded to do so by the latter’s mother, shows a fine not exceeding 500 pesos shall be imposed upon anyone
that the second element is likewise undoubtedly present in this who, under the pretext of reimbursing himself of a debt
incurred by an ascendant, guardian, or person entrusted with
case.
the custody of a minor, shall, against the tatter's will, retain
him in his service.
The mother was calling Marquez repeatedly and refused to
surrender because she already sold the child. The subsequent
Kasunduan does not affect; the deliberate refusal was already ELEMENTS (RAR)
present. She was convicted under Article 270 of the RPC. 1. That the offender Retains a minor in his service.
2. That it is Against the will of the minor.
3. That it is under the Pretext of reimbursing himself of a
ARTICLE 271. Inducing a minor to abandon his home. –
debt incurred by an ascendant, guardian or person
The penalty of prision correccional and a fine not exceeding
One hundred thousand pesos (P100,000) shall be imposed entrusted with the custody of such minor.
upon anyone who shall induce a minor to abandon the home
of his parents or guardians or the persons entrusted with his ARTICLE 275. Services rendered under compulsion in
custody. payment of debt. – The penalty of arresto mayor in its
maximum period to prision correccional in its minimum
If the person committing any of the crimes covered by the two period9 shall be imposed upon any person who, in order to
preceding articles shall be the father or the mother of the require or enforce the payment of a debt, shall compel the
minor, the penalty shall be arresto mayor or a fine not Forty debtor to work for him, against his will, as household servant
thousand pesos (P40,000), or both. or farm laborer.
ELEMENTS (CAR) opefate (sic) said Owner Jeep in a careless, reckless, negligent
1. That the offender Compels a debtor to work for him, and imprudent manner, as a result of which said motor vehicle
either as household servant or farm laborer; being then driven and operated by him, hit and bumped a
2. That it is Against the debtor’s will; and tricycle SUZUki (sic) bearing Plate No. NA-6575 MC Pilipinas '85,
3. That the purpose is to Require or enforce the payment driven by Ernesto Reyes and as a consequence of which Gonzal
of a debt. and Reyes sustained physical injuries and lostg consciousness,
did then and there wilfully, unlawfully and feloniously abandon
CHAPTER TWO them and fail to help or render assistance to them, without
CRIMES AGAINST SECURITY justifiable reason.
Section One. – Abandonment of the Helpless Persons Issue: Could there be a valid charge for alleged abandonment
and Exploitation of Minors under Article 275, par. 2 of the Revised Penal Code which
provides as basis for prosecution. "2. Anyone who shall fail to
help another whom he has accidentally wounded or injured"
ARTICLE 275. Abandonment of persons in danger and
when, he was previously charged with "reckless imprudence
abandonment of one’s own victim. – The penalty of arresto
mayor shall be imposed upon: resulting in damage to property with multiple physical injuries"
1. Anyone who shall fail to render assistance to any under Article 265 (sic) of the Revised Penal Code?
person whom he shall find in an uninhabited place
wounded or in danger of dying, when he can render Argument: Petitioner argued that for the same act, that is, the
such assistance without detriment to himself, vehicular collision, one could not be indicted in two separate
unless such omission shall constitute a more informations at the same time based on accident and
serious offense;
recklessness.
2. Anyone who shall fail to help or render assistance to
another whom he has accidentally wounded or
injured; Rule: There is no double jeopardy. Since the informations were
3. Anyone who, having found an abandoned child for separate offenses — the first against a person and the
under seven years of age, shall fail to deliver said second against public peace and order — one cannot be
child to authorities or to his family, or shall fail to pleaded as a bar to the other under the rule on double
take him to a safe place. jeopardy.
First Punishable Act Quasi offenses under Article 365 are committed by means of
WHAT: Failure to render assistance culpa. Crimes against Security are committed by means of dolo.
WHO: To any person wounded or in danger of dying Neither one includes or necessarily includes another.
WHERE: Whom he shall find in an uninhabited place
WHEN: When he can render such assistance without detriment to Moreover, in Article 365, failure to lend help to one's victim is
himself, unless such omission shall constitute a more serious neither an offense by itself nor an element of the offense
offense. therein penalized. Its presence merely increases the penalty by
one degree.
Elements
a. That the place is not inhabited Such being the case, it must be specifically alleged in the
b. The accused found there a person wounded or in information. The information against petitioner in this case
danger of dying; does not so allege. Upon the other hand, failure to help or
c. The accused can render assistance without render assistance to another whom one has accidentally
detriment to himself; wounded or injured is an offense under paragraph 2 of Article
d. The accused fails to render assistance. 275.
Second Punishable Act Abandonment of 275 from 365

WHAT: Failure to help or render assistance If a person causes injury to another through accident under
WHO: To another whom he has accidentally wounded or injured Article 12(4), he is not criminally laible. But, if he fails to render
assistance to the victim, he will be liable under Article 275(2).
LAMERA v. CA GR 93475 (1991)
Information: That on or about the 14th day of March, 1985, in The provision uses the word accidentally, it should arise from
the Municipality of Pasig, Metro Manila, Philippines and within the accident, if it arises from recklessness, you treat the
the jurisdiction of this Honorable Court the above-named abandonment as a qualifying circumstance to increase one
accused, being then the driver and person in charge of an degree.
Owner Jeep Toyota bearing Plate No. NCC-313 UV Pilipinas '85,
and without due regard to traffic laws, rules and regulations and The determinative point depends on the nature of the act if the
without taking the necessary care and precautions to avoid accident of Article 275; in Article 365, the cause is imprudence
damage to property and injuries to persond (sic), did, then and or negligence. What is nature of the act that caused the injury
there willfully, unlawfully and feloniously drive, manage and and led to the abandonment.
Third Punishable Act ARTICLE 277. Abandoning a minor by person entrusted

WHO: Having found an abandoned child under seven years with his custody; Indifference of parents. – The penalty of
WHAT: Shall fail to deliver said child arresto mayor and a fine not exceeding One hundred
WHERE: To the authorities or to his family, or shall fail to take him thousand pesos (P100,000) shall be imposed upon anyone
to a safe place who, having charge of the rearing or education of a minor,
shall deliver said minor to a public institution or other
persons, without the consent of the one who entrusted such
This presupposes that the child was found in an unsafe place,
child to his care or in the absence of the latter, without the
there is no abandonment. Take note there must be no intent consent of the proper authorities.
to kill the child.
The same penalty shall be imposed upon parents who shall
ARTICLE 276. Abandoning a minor. – The penalty of arresto neglect their children by not given them the education which
mayor and a fine not exceeding One hundred thousand pesos their station in life requires and financial condition permits.
(P100,000) shall be imposed upon anyone who shall abandon
a child under seven (7) years of age, the custody of which is First Punishable Act
incumbent upon him.
1. WHO: Anyone who having charge of the rearing or
When the death of the minor shall result from such education of a minor
abandonment, the culprit shall be punished by prision 2. WHAT: Shall deliver said minor to a public institution or
correccional in its medium and maximum periods; but if the other persons
life of the minor shall have been in danger only, the penalty 3. HOW: Without the consent of the one who entrusted such
shall be prision correccional in it minimum and maximum child to his care or, in the absence of the latter, without
periods. the consent of the proper authorities.
The provisions contained in the two (2) preceding

Example. A person who found a child in the forest and brought
paragraphs shall not prevent the imposition of the penalty
provided for the act committed, when the same shall to Manila and gave that child to another person for he could
constitute a more serious offense. not support the child cannot be found guilty under this article,
the for that person was not charged with the rearing or
education of the minor. The word rear means to bring to
ELEMENTS (CUAN)
maturity by educating, nourishing as to rear children.
1. That the offender has the Custody of the child;
2. That the child is Under seven years of age;
Second Punishable Act
3. That he Abandons such child; and
4. WHO: Parents
4. That he has No intent to kill the child when the latter
5. WHAT: Who shall neglect their children by not giving them
was abandoned.
education
6. THAT: His station in life requires such education and his
Punishable Act
financial condition permits it
The act of abandoning a child under seven years of age the
7. NOTE: Neglect does not mean negligence, it means the
custody of which is incumbent upon him. Despite the trust, the
deliberate refusal to perform his/her parental duties.
voluntarily deliberately abandons the child. There must be no
8.
intent to kill, otherwise it can be considered under Title VIII.
The child must be dependent to the parents and are still under
the residence of the parent because they obligation to support.
If there is intent to kill, the crime would either be murder,
• Obligation to educate children terminates if mother
parricide, infanticide, as the case may be. If the child did not die,
and children refuse without good reason to live with
it is attempted murder, parricide, or infanticide as the case. If
the accused.
you place of the child in danger with intent to kill, there might
• Failure to give education must be due to deliberate
be attempted or frustrated murder.
desire to evade such obligation.
Qualifying Circumstances
1. When the death of the minor resulted; Article 276 Article 277
2. If the life of the minor was in danger. The custody of the offender The custody of the offender
is stated in general. is specific; that is the
custody for the rearing or
Permanent, Conscious and Deliberate Abandonment education of the minor.
Under the first paragraph of Article 276, the law penalizes the Minor is under seven years Minor is under 18 years of
mere abandonment of a child even when his life is not of age. age.
endangered, so long as there is an interruption of the care Minor is abandoned in such Minor is delivered to a
and protection he needs by reason of his tender age. a way as to deprive him of public institution or other
the care and protection that person.
The abandonment must not be mere momentary leaving of the his tender years need.
child but the abandonment is to deprive care and protection.
ARTICLE 278. Exploitation of minors. – The penalty of Difference between second and third paragraphs is that in the
prision correccional in its minimum and medium periods and second paragraph, the child is not related to the offender, in
a fine not exceeding One hundred thousand pesos (P100,000) the third, the child is a descendant of the offender.
shall be imposed upon:
1. Any person who shall cause any boy or girl under Fourth paragraph refers to taking advantage of trust to deliver
sixteen years of age to perform any dangerous feat the child, gratuitously or with a price to:
of balancing, physical strength or contortion.
a. Any person engaged in the activities of exploitation;
2. Any person who, being an acrobat, gymnast, rope- b. Any habitual vagrant or beggar.
walker, diver, wild-animal tamer or circus manager,
or engaged in a similar calling, shall employ in Fifth paragraph involves that act of inducement to abandon
exhibition of these kinds, children under sixteen one’s home to:
years of age who are not his children or a. Pursue any of the calling under paragraph 2
descendants. b. Or to accompany any habitual vagrant or beggar.
3. Any person engaged in any of the calling
enumerated in the next preceding paragraph who Article 278(5) Article 271
shall employ any descendant of his under twelve The purpose of inducing If there is no such purpose,
years of age in such dangerous exhibitions. the minor to abandon his it is inducing the minor to
home is to follow nay abandon his home under
4. Any ascendant, guardian, teacher, or person person engaged in any of Article 271.
entrusted in any capacity with the care of a child
the calling under paragraph
under sixteen years of age, who shall deliver such
child gratuitously to any person of the calling 2 or to accompany any
enumerated in paragraph 2 hereof, or to any habitual vagrant or beggar.
habitual vagrant or beggar. One must be under 16 years Minor is under 18 years of
old and in case of age
If the delivery shall have been made in paragraph 3, under 12 years
consideration of any price, compensation, or
promise, the penalty shall in every case be imposed
in its maximum period. ARTICLE 279. Additional penalties for other offenses. –
The imposition of the penalties prescribed in the preceding
In either case, the guardian or curator convicted articles, shall not prevent the imposition upon the same
shall also be removed from office as guardian or person of the penalty provided for any other felonies defined
curator; and in the case of the parents of the child, and punished in this code.
they may be deprived, temporarily or perpetually,
in the discretion of the court, of their parental
authority. Section Two. – Trespass to Dwelling
5. Any person who shall induce any child under ARTICLE 280. Qualified trespass to dwelling. – Any private
sixteen years of age to abandon the home of its person who shall enter the dwelling of another against the
ascendants, guardians, curators, or teachers to latter’s will shall be punished by arresto mayor and a fine not
follow any person engaged in any of the calling exceeding Two hundred thousand pesos (P200,000).
mentioned in paragraph 2 hereof, or to accompany
any habitual vagrant or beggar. If the offense be committed by means of violence and
intimidation, the penalty shall be prision correccional in its
Exploitation of Minors medium and maximum periods and a fine not exceeding Two
hundred thousand pesos (P200,000).
Take note of the following points for Article 278 of the Revised
Penal Code for distinction: The provisions of this article shall not be applicable to any
• The victim is always under sixteen years of age, except person who shall enter another’s dwelling for the purpose of
under (3) which is under twelve years of age for he is preventing some serious harm to himself, the occupants of
a descendant of the offender. the dwelling or a third person, nor shall it be applicable to any
• The exploitation must be of such nature as to person who shall enter a dwelling for the purpose of
endanger the life or safety of the child. rendering some service to humanity or justice, nor to anyone
who shall enter cafes, taverns, inns and other public houses,
while the same are open.
Activities of exploitation:
a. Causing the child to perform any dangerous feat of
balancing, physical strength, or contortion; or ELEMENTS (PEA)
b. Employing the child as an acrobat, gymnast, rope- 1. That the offender is a Private person.
walker, diver, wild-animal tamer or circus manager or 2. That he Enters the dwelling of another.
any similar calling 3. That such entrance is Against the latter’s will.
NOTE: The offender shall be deprived of parental authority or Qualified: If the offense is committed by means of violence or
guardianship or as curator either temporarily or perpetually. intimidation, the penalty is higher.
The dwelling in this case inhabited, furthermore there is Not Applicable

attendance of special aggravating circumstance. 1. For the purpose of preventing some serious harm;
(persons shouting for help, an act is justified)
Who is the Offender? 2. For the purpose of rendering some service to
The offender must be a private person. What if public officer or humanity or justice; (warrants of arrest, and if you
employee, the crime is violation of domicile under Article 128 announced authority as police officer, despite
when the public officer enters the dwelling another without knocking, you may apply force if there is reasonable
authority of law. belief the person is inside).
3. Made in a public place such as café, tavern or other
Dwelling: The crime is committed in the dwelling of another. public houses, while the same are open.
Dwelling means any building or structure exclusively devoted
for rest and comfort, as distinguished from places to places ARTICLE 281. Other forms of trespass. – The penalty of
devoted to business, offices, etc. arresto menor or a fine not exceeding Forty thousand pesos
(P40,000), or both, shall be imposed upon any person who
The test is the actual use which it is devoted to, regardless if shall enter the closed premises or the fenced estate of
the house is made one sheet of plywood, so long as the person another, while either or both of them are uninhabited, if the
considers it such place of refuge. prohibition to enter be manifest and the trespasser has not
secured the permission of the owner or the caretaker thereof.
Dwelling is not to be interpreted is not also strictly a structure,
it can also be a room. ELEMENTS (CUMS)
1. That the offender enters the Closed premises or the
Q. Is an inhabited barn or warehouse considering a dwelling? fenced estate of another.
Yes. Whether a building is a dwelling house or not depends 2. That the entrance is made while either of them is
upon the use to which it is put. A barn may be converted to Uninhabited.
house or vice versa by a change of use. It depends on the use 3. That the prohibition to enter is Manifest.
that determines. 4. That the trespasser has not Secured the permission of
the owner or the caretaker thereof.
What is the Nature of the Entry?
It must be against will of the owner or the occupant, there Punishable Act
must be prior prohibition to conclude that there is against will. 9. WHO: Any person, not only private persons
There must be presumed or express prohibition, the prohibition 10. WHAT: Enters without permission of the owner or caretaker
must exist prior to or at the time of the entry. 11. WHERE: The closed premises or fenced estate of another,
while either of them is uninhabited.
There must at least be presumed prohibition, lack of permission 12. PLUS: The prohibition to enter must be manifest.
must not be confused with prohibition, only if owner failed to 13.
give permission, this is not contemplated. Compared to Article 280, where implied prohibition is allowed,
under Article 281, there must be manifest prohibition.
Implied Prohibition
• Closed door although unlocked Meaning of Premises
• Entry at the late hour of the night Premises signifies distinct and definite locality. It may mean a
• Door locked by a flimsy string room, shop, building, or a definite area, but in either case there
• Implied instruction to stay in a specific portion of the must be a locality fixed.
house
• When the entrance is made through a window Distinction of Article 280 and Article 281 on Trespass
Article 280 Article 281
Violence (May be Committed Upon Things or Persons): Private person Any person
• Pushing door violently Enters a dwelling house Enters closed premises or
• Cutting fastening of the door fenced estates
• Wounding of the owner of the house upon entry Placed entered is Place entered is
inhabited uninhabited
Intimidation (Committed only upon persons) Act constituting the crime is Act constituting the crime is
• Firing a warning shot; entering the dwelling the entering the closed
• Displaying a deadly weapon against the will of the premises or a fenced estate
owner without securing permission
Must violence or intimidation take place simultaneously of the owner or the
with entry? caretaker thereof
No, the violence or intimidation may take place immediately Prohibition to enter is Prohibition to enter must
after entry. Presence of violence or intimidation is enough to express or implied be manifest
consummate crime even without prohibition.
Section Three. – Threats and Coercion Note: Essence of the crime of threats is intimidation. The act
threatened must be wrong; though the condition need not be
ARTICLE 282. Grave threats. – Any person who shall lawful, look at the nature of the threat. It is consummated as
threaten another with the infliction upon the person, honor, soon as the threats come to the knowledge of the person
or property of the latter or of his family of any wrong threatened.
amounting to a crime, shall suffer:
1. The penalty next lower in degree than that Ex. What if you threaten five people at once, how many counts?
prescribed by law for the crime he threatened to It consists of a compound crime arising from single act, but if
commit, if the offender shall have made the threat
threatened of individually, it is five counts, use single act test.
demanding money or imposing any other condition,
even though not unlawful, and said offender shall
have attained his purpose. If the offender shall not Threats under the third form must be serious and deliberate,
have attained his purpose, the penalty lower by two not merely made in the heat of anger. If the latter, Article 285(2)
(2) degrees shall be imposed. on other light threats. (Ex. Due to a heated argument).
If the threat be made in writing or through a Threats made in connection with the commission of other crime
middleman, the penalty shall be imposed in its
are absorbed by the latter. Threat is absorbed as means of
maximum period.
intimidating the victim (Rape with intimidation, it is element of
2. The penalty of arrest mayor and a fine not exceeding rape; Robbery with violence or intimidation against persons).
One hundred thousand pesos (P100,000), if the
threat shall not have been made subject to a But if the threat was made with the deliberate purpose of
condition. creating in the mind of the person threatened, the belief that
the threat would be carried into effect, the crime committed is
Punishable Acts grave threats, and the minor crime which accompanied it
1. Threatening another with infliction upon his person, should be distinguished. So long as the accompanying felony is
honor, or property, or that of his family of any wrong a minor crime it is deemed absorbed.
amounting to a crime and demanding money or
imposing any other condition, even though not Distinction – Robbery v. Grave Threats
unlawful, and the offender attained his purpose. The offender in grave threats does not demand the delivery on
2. By making such threat without the offender attaining the spot of the money or other personal property asked by him.
his purpose. Threats are usually in some future time.
3. By threatening another with the infliction upon his
person, honor, or property or that of his family of any REYES v. PEOPLE GR L-21528 (1969)
That on or about June 6, 1961, in the City of Cavite, Republic of the
wrong amounting to a crime, the threat not being
Philippines and within the jurisdiction of this Honorable Court, the
subject to a condition.
above named accused, did then and there, willfully, unlawfully and
feloniously, orally threaten to kill, one Agustin Hallare.
Common Elements
These elements must be present What Happened?
A. Threatening another with the infliction of a wrong Rosauro Reyes got off his jeep and posted himself at the gate,
amounting to a crime; and with his right hand inside his pocket and his left holding
B. Upon the person, honor, or property of the latter or of the gate-door, he shouted repeatedly, "Agustin, putang ina mo.
his family. Agustin, mawawala ka. Agustin lumabas ka, papatayin kita."
Thereafter, he boarded his jeep and the motorcade left the
1st Act 2nd Act 3rd Act premises. Meanwhile, Hallare, frightened by the demeanor of
Demand of Yes Yes No Reyes and the other demonstrators, stayed inside the house.
money or
imposition Did the acts of the accused constitute grave threats? If so what
of paragraph? Was it serious and deliberate or in fit of anger?
condition
Attained Yes No N/A The demonstration led by petitioner Agustin Hallare in front of
purpose the main gate of the naval station; the fact that placards with
Penalty Next lower Penalty Arresto threatening statements were carried by the demonstrators;
in degree lower by mayor their persistence in trailing Hallare in a motorcade up to his
than the two degrees residence; and the demonstration conducted in front thereof,
crime culminating in repeated threats flung by petitioner in a loud
threatened voice, give rise to only one conclusion: that the threats were
made "with the deliberate purpose of creating in the mind of
There is a special aggravating circumstance if the threat is made the person threatened the belief that the threat would be
in writing or through a middleman, maximum shall be imposed. carried into effect."
Indeed, Hallare became so apprehensive of his safety that he As distinguished from grave threats
sought the protection of Col. Monzon, who had to escort him • The threat to commit a wrong does not amount to a
home, wherein he stayed while the demonstration was going crime;
on. It cannot be denied that the threats made deliberately and • The threat to commit a wrong is always accompanied
not merely in a temporary fit of anger, motivated as they by a demand for money or other condition, even
were by the dismissal of petitioner one month before the though not unlawful (e.g. blackmail or exposure)
incident. We, therefore, hold that the appellate court was • What if not accompanied by a demand for money or
correct in upholding petitioner's conviction for the offense of other condition under other light threats.
grave threats. Hallare was alleged to dismiss them. Accused was
convicted under third form of grave threats. ARTICLE 284. Bond for good behavior. – In all cases falling
within the two next preceding articles, the person making the
CALUAG v. PEOPLE GR 171511 (2009) threats may aslo be required to give bail not to molest the
That on or about the 19th day of March 2000, in the City of Las Piñas, person threatened, or if he shall fail to give such bail, he shall
Philippines and within the jurisdiction of this Honorable Court, the be sentenced to destierro.
above-named accused, moved by personal resentment which he *It is considered as an additional penalty.
entertained against one JULIA LAVIAL DENIDO, did then and there
willfully, unlawfully and feloniously threaten said JULIA LAVIAL DENIDO
with the infliction on her person of a harm amounting to a crime, by
ARTICLE 285. Other light threats. – The penalty of arresto
then and there poking his gun at her forehead and uttering the
menor in its minimum period or a fine not exceeding Forty
following words in tagalog, to wit: "Saan ka pupunta gusto mo ito?"
thousand pesos (P40,000) shall be imposed upon:
1. Any person who, without being included in the
thereby causing said complainant to be threatened.
provisions of the next preceding article, shall
threaten another with a weapon, or draw such
You must look at situation in all the attendant circumstances,
weapon in a quarrel, unless it be in lawful self-
she poked a gun. defense;
2. Any person who, in the heat of anger, shall orally
Was Grave Threats Committed, If so, under what form? threaten another with some harm not constituting a
Considering what transpired earlier between petitioner and crime, and who by subsequent acts shows that he
Julia’s husband, petitioner’s act of pointing a gun at Julia’s did not persist in the idea involved in his threat,
forehead clearly enounces a threat to kill or to inflict serious provided that the circumstances of the offense shall
not bring it within the provisions of Article 282 of
physical injury on her person. Actions speak louder than words.
this Code;
Taken in the context of the surrounding circumstances, the 3. Any person who shall orally threaten to do another
uttered words do not go against the threat to kill or to inflict any harm not constituting a felony.
serious injury evinced by petitioner’s accompanying act.
Punishable Acts
Given the surrounding circumstances, the offense committed 1. Threatening another with a weapon, even if there is no
falls under Article 282, par. 2 (grave threats) since: (1) killing or quarrel
shooting someone amounts to a crime, and (2) the threat to kill 2. Drawing a weapon in a quarrel, which is not lawful
was not subject to a condition. self-defense;
3. Orally threatening another, in the heat of anger, with
Article 285, par. 1 (other light threats) is inapplicable although some harm constituting a crime, without persisting in
it specifically states, "shall threaten another with a weapon or the idea involved in his threat;
draw such weapon in a quarrel", since it presupposes that the 4. Orally threatening another of any harm not
threat to commit a wrong will not constitute a crime. That the constituting a felony.
threat to commit a wrong will constitute or not constitute a
crime is the distinguishing factor between grave threats on one
Grave Threats Light Threats Other Light
hand, and light and other light threats on the other.
Threats
The wrong The wrong There is no
ARTICLE 283. Light threats. – A threat to commit a wrong threatened threatened does demand for
not constituting a crime, made in the manner expressed in
amounts to a not amount to a money or that
subdivision 1 of the next preceding article, shall be punished
by arresto mayor. crime which may crime but is there is no
or may not be always condition
accompanied by a accompanied by imposed or that
ELEMENTS condition. a condition. the threat is not
1. That the offender makes a Threat to commit a wrong; deliberate.
2. That the wrong Does not constitute a crime;
3. That there is a Demand for money or that other
Is Threat to Sue in Court Unlawful?
condition is imposed, even though not unlawful;
No. Because the threatened act must be a wrong and
4. That the offender has attained his purpose or that he
threatening to sue is not a wrong. A manifestation of exercise
has not attained his purpose.
of rights.
COERCIONS: There are three kinds of coercions, grave light or Coercion can be
other similar coercions. 1. Preventive coercion
2. Compulsive coercion
Purpose
No person may take the law into his own hands, ours is a Significance:
government of laws and not men. Thus, whether one is The violence or intimidation will bring about grave coercion, if
indebted to another is immaterial. the act prevented is not prohibited by law, or some other crime.
In compulsive, whether prohibited or not, it is grave coercion.
Thus, whether one is indebted to another is immaterial. It is
elementary that in no case may possession be acquired through Illustration. In order to prevent Diether from entering the
force or intimidation as long as there is a possessor who objects house of Claudine against the latter’s will, Rico boxed Diether
thereto. resulting to the loss of Diether’s two front feet.
He who believes that he has an action or a right to deprive Is Rico liable for Grave Coercion?
another of the holding of a thing must invoke the aid of the No. Rico is liable for serious physical injuries and not grave
competent court if the holder should refuse to deliver the thing. coercion because the desired forcible entry is not prohibited by
law. But Diether can put up justifying circumstance of defense
Distinction of Coercion from Threats of stranger.
Coercion Threats
The threatened harm or The threatened harm or TIMONER v. PEOPLE GR L-62050 (1983)
wrong is immediate, wrong is in the future and The town mayor was charged with grave coercion for ordering
personal and direct. conditional. closure and barricading of certain stores for non-compliance
Cannot be done by means May be done through an with certain health and sanitation requirements.
of an intermediary or in intermediary or in writing.
writing. The defense was that the sealing off the complainants’ shops
Generally committed by Generally committed by were done in abatement of a public nuisance and, therefore,
violence, although it may means of intimidation under lawful authority.
also be committed by which is future and
intimidation, but must be conditional. Court: The mayor could not have been faulted for having fenced
serious enough, direct, off said shops.
immediate and personal.
Paragraph 3, Article 699 of the Civil Code authorizes the
abatement of a public nuisance without judicial proceedings. In
Threat: If you are still here when I come back I’ll kill you.
the case at bar, petitioner, as mayor of the town, implemented
Coercion: If you do not get out, I will kill you.
the recommendation of the Municipal Health Officer.
ARTICLE 286. Grave coercions. – The penalty of prision Having then acted in good faith in the performance of his duty,
correccional and a fine not exceeding One hundred thousand petitioner incurred no criminal liability.
pesos (P100,000) shall be imposed upon any person who,
without any authority of law, shall, by means of violence,
threats, or intimidation, prevent another from doing Element absent in the case:
something not prohibited by law, or compel him to do That the person who restrained the will and liberty of another
something against his will, whether it be right or wrong. had no right to do so or, in other words, that the restraint was
not made under authority of law or in the exercise of a lawful
If the coercion be committed in violation of the exercise of the right.
right to suffrage, or for the purpose of compelling another to
perform any religious act, or to prevent him from exercising
LEE v. COURT OF APPEALS GR 90423 (1991)
such right or from doing such act, the penalty next higher in
degree shall be imposed. Issue: Whether or not the acts of petitioner in simply shouting
at the complainant with piercing looks and threats to file
charges against her are sufficient to convict him of the crime of
Common Elements grave coercion?
1. The offender is without authority of law
2. Presence of violence, threats or intimidation Facts: She was confronted by the bank officer, the
confrontation was with piercing looks, if you will not return the
Means of Commission (Third Element) money, one will file a case.
1. Preventing another from doing something not
prohibited by law; Rule: Petitioner's demand that the private respondent returns
2. Compelling another to do something against his will, the proceeds of the check accompanied by a threat to file
whether it be right or wrong. You cannot compel criminal charges was not improper. There is nothing unlawful
someone whether unlawful or lawful. on the threat to sue.
It is a practice followed not only by banks but even by Absence of Third Element of Violence or Intimidation
individuals to demand payment of their accounts with the Light Coercion becomes Unjust Vexation
threat that upon failure to do so an action would be instituted Light coercion under the first paragraph will be unjust vexation
in court. if the third element of violence or intimidation is absent. As
discussed in the case of Maderazo v. People (2006).
Such a threat is proper within the realm of the law as a means
to enforce collection. Such a threat cannot constitute duress The second paragraph of the Article is broad enough to include
even if the claim proves to be unfounded so long as the creditor any human conduct which, although not productive of some
believes that it was his right to do so. physical or material harm, could unjustifiably annoy or vex an
innocent person.
The force which is claimed to have compelled criminal conduct
against the will of the actor must be immediate and continuous Compulsion or restraint need not be alleged in the Information,
and threaten grave danger to his person during all of the time for the crime of unjust vexation may exist without compulsion
the act is being committed. That is, it must be a dangerous force or restraint. However, it is a felony by dolo, thus malice is an
threatened 'in praesenti.' inherent element of the crime. The paramount question then
is whether the offenders’ act caused annoyance, irritation,
It must be a force threatening great bodily harm that remains torment, distress or disturbance to the mind of the person to
constant in controlling the will of the unwilling participant while whom it is directed.
the act is being performed and from which he cannot then
withdraw in safety. In the present case, he Mayor had the stall of Verutiao
padlocked and had it reopened and had the contents of the
ARTICLE 287. Light coercions. – Any person who, by means stall inventoried and taken to the police station. The court
of violence, shall seize anything belonging to his debtor for stated that the acts of Mayor annoyed, irritated and caused
the purpose of applying the same to the payment of the debt, embarrassment to her.
shall suffer the penalty of arresto mayor in its minimum
period and a fine equivalent to the value of the thing, but in Although Verutiao was not at her stall when it was unlocked,
no case less than Fifteen thousand pesos (P15,000). and the contents thereof taken from the stall and brought to
the police station, the crime of unjust vexation was nevertheless
Any other coercions and unjust vexations shall be punished
by arresto menor or a fine ranging from One thousand pesos committed. For the crime to exist, it is not necessary that the
(P1,000) to not more than Forty thousand pesos (P40,000) or offended party be present when the crime was committed by
both. said petitioners. It is enough that the private complainant was
embarrassed, annoyed, irritated or disturbed when she learned
of the overt acts of the petitioners. Indeed, by their collective
ELEMENTS (CSVP) (Paragraph 1)
acts, petitioners evicted Verutiao from her stall and prevented
1. That the offender must be Creditor;
her from selling therein, hence, losing income from the
2. That he Seizes anything belonging to his debtor;
business. Verutiao was deprived of her possession of the stall.
3. That the seizure of the thing be accomplished by
means of Violence or a display of material force
Unjust Vexation from Grave Coercion
producing intimidation.
Where the first and the third elements of the crime of grave
4. That the Purpose of the offender is to apply the same
coercion under Article 286(1) are present, but the second
to the payment of the debt.
element thereof, which is the use of violence upon the offended
party in preventing or compelling him to do something against
This paragraph is limited to a case where the offender seized
his will, is lacking, the crime committed is unjust vexation.
anything belonging to his debtor by means of violence to apply
the same to the payment of the debt.
• Actual violence need not be employed for it is ARTICLE 288. Other similar coercions. – (Compulsory
sufficient that the attitude of the offender in seizing purchase of merchandise and payment of wages by means of
tokens). The penalty of arresto mayor or a fine ranging from
the property of his debtor is notoriously menacing as
(P40,000) to One hundred thousand pesos (P100,000), or
to amount to a grave intimidation. both, shall be imposed upon any person, agent or officer of
any association or corporation who shall force or compel
UNJUST VEXATION (Paragraph 2) directly or indirectly, or shall knowingly permit any laborer
Unjust vexation includes any human conduct which, although or employee employed by him or by such firm or corporation
not productive of some physical or material harm would, to be forced or compelled, to purchase merchandise or
however, unjustly annoy or vex an innocent person. commodities of any kind.
The same penalties shall be imposed upon any person who

The paramount question to be considered, in determining
shall pay the wages due a laborer or employee employed by
whether the crime of unjust vexation is committed, is whether him, by means of tokens or object other than the legal tender
the offender’s act caused annoyance, irritation, vexation, currency of the Philippines, unless expressly requested by the
torment, distress, or disturbance to the mind of the victim. laborer or employee.
Act Punishable CHAPTER THREE

1. By forcing or compelling, directly or indirectly, or DISCOVERY AND REVELATION OF SECRETS
knowingly permitting the forcing or compelling of the
laborer or employee of the offender to purchase ARTICLE 290. Discovering secrets through seizure of
merchandise or commodities of any kind from him. correspondence. – The penalty of prision correccional in its
minimum and medium periods and a fine not exceeding One
ELEMENTS (PEF) hundred thousand pesos (P100,000) shall be imposed upon
a. That the offender is any Person, agent, or officer any private individual who in order to discover the secrets of
of any association or corporation; another, shall seize his papers or letters and reveal the
contents thereof.
b. That he or such firm or corporation has Employed
laborers or employees; If the offender shall not reveal such secrets, the penalty shall
c. That he Forces or compels, directly or indirectly, be arresto mayor and a fine not exceeding One hundred
or knowingly permits to be forced or compelled thousand pesos (P100,000).
any of his or its laborers or employees to
purchase merchandise or commodities of any This provision shall not be applicable to parents, guardians,
kind from him or from said firm or corporation. or person entrusted with the custody of minors with respect
to the papers or letters of the children or minors placed under
their care or custody, nor to spouses with respect to the
2. By paying the wages due his laborer or employee by
papers or letters of either of them.
means of token or objects other than the legal tender
currency of the Philippines, unless expressly requested
by such laborer or employee. ELEMENTS (PS-DI)
1. That the offender is a Private individual or even a
ELEMENTS (PTON) public not in the exercise of his official function.
a. That the offender Pays the wages due a laborer 2. That he seizes the Seizes the papers or letters of
or employee employed by him by means of another.
Tokens or objects. 3. That the purpose is to Discover the secrets of such
b. That those tokens or objects are Other than the another person.
legal tender currency of the Philippines. 4. That offender is Informed of the contents of the
c. That the laborer does Not expressly request that papers or letters seized.
he be paid by means or objects.
Seize, Definition
It means to place in the control of someone a thing or to give
ARTICLE 289. Formation, maintenance and prohibition of
him the possession thereof and not necessary that there be
combination of capital or labor through violence or
threats. – The penalty of arresto mayor and a fine not force or violence. There must taking possession of papers or
exceeding Sixty thousand pesos (P60,000) shall be imposed letters of another.
upon any person who, for the purpose of organizing, • The purpose of the offender must be to discover the
maintaining, or preventing coalitions or capital or labor, secrets of another.
strike of laborers or employees in the free and legal exercise • The offender must be informed of contents of papers
of their industry or work, if the act shall not constitute a more or letters.
serious offense in accordance with the provisions of this
• When the offender reveals the contents to a third
Code.
person, the crime is qualified.
ELEMENTS (ViPur) Article 290 Not Applicable to Letters of Minors of Spouses

1. That the offender employs Violence or threats, in such This article is not applicable to parents, guardians, or persons
a degree as to compel or force the laborers or entrusted with the custody of minors with respect to papers or
employers in the free and legal exercise of their letters of the children or minors placed under their care or
industry or work. custody, or to spouses with respect to the papers or letters of
2. That the Purpose is to organize, maintain, or prevent either of them.
coalitions of capital or labor, strike of laborers or
lockout of employees. Article 230 Article 290
Public officer comes to A private individual seizes
The Act Should Not be a More Serious Offense
know the secrets of any the papers or letters of
The act should not constitute a more serious offense in
private individual by reason another to discover the
accordance with the provisions of this Code.
of his office. Not necessary it secrets of the latter. It is not
be in papers or letters. The necessary that there be a
If death or some serious physical injuries are caused in an effort
public officer reveals such secret, if there is a secret
to curtail the exercise of the rights of the laborers and
secrets without justifiable discovered, it is not
employers, the act should be punished in accordance with the
reason. necessary it be revealed.
other provisions of the Code.
ARTICLE 291. Revealing secrets with abuse of office. – The

penalty of arresto mayor and a fine not exceeding One
hundred thousand pesos (P100,000) shall be imposed upon
any manager, employee, or servant who, in such capacity,
shall learn the secrets of his principal or master and shall
reveal such secrets.
ELEMENTS (MaLeSeRe)
1. That the offender is a Manager, employee or servant;
2. That he Learns the Secrets of his principal or master in
such capacity; and
3. That he Reveals such secrets.
Secrets must be Learned by Reason of their Employment

The secrets must have come to their knowledge by reason of
their office or position, and it makes no difference that a secret
was communicated by the principal or master to the employee
or servant. It must be revealed, otherwise not committed.
ARTICLE 292. Revelation of industrial secrets. – The

penalty of prision correcional in its minimum and medium
periods and a fine not exceeding One hundred thousand
pesos (P100,000) shall be imposed upon the person in
charge, employee or workman of any manufacturing or
industrial establishment who, to the prejudice of the owner
thereof, shall reveal the secrets of the industry of the latter.
ELEMENTS (C-SRP)
1. That the offender is a person in Charge, employee or
working of manufacturing or industrial establishment;
2. That the manufacturing or industrial establishment
has a Secret of the industry which the offender has
learned;
3. That the offender Reveals such secrets;
4. That Prejudice is caused to the owner.
Secrets Must Relate to Manufacturing Processes

The secrets here must be those relating to the manufacturing
processes invented by or for a manufacturer and used only in
his factory or in a limited member of them; otherwise as when
such processes are generally used, they will not be secret.
• The act constituting the crime is revealing the secret
of the industry of the employer.
• The revelation of secret might be made even after
employment had ceased to be connected with the
establishment.
• Unlike Article 291; Article 292 enumerates prejudice as
an element.
CRIMINAL LAW II Second Element

The Personal Property Belongs to Another
REVISED PENAL CODE
The offender must not be the owner of the object, if you steal
but it turns out your own it is impossible crime of theft, but
TITLE X there can be no impossible crime because there is violence or
CRIMES AGAINST PROPERTY intimidation, because there is a wrong involved, if the threat is
coupled with violence or intimidation. If the offender is the
ARTICLE 293. Robbery. – Any person who, with intent to owner, he cannot be held liable for robbery, but may be held
gain, shall take any personal property belonging to another, liable for coercion.
by means of violence against or intimidation of any person, or
using force upon anything, shall be guilty of robbery. Mistake of fact applies: If the taking is made under an open
and public claim of ownership, although later declared to be
Robbery, Defined untenable, the accused cannot be held liable for robbery. A co-
Robbery is the taking of personal property belonging to owner cannot steal from another co-owner.
another, with intent to gain, by means of violence against, or
intimidation of any person, or using force upon anything. Should the victim be the owner of the object? Not necessarily,
for so long as the offender is not the owner of the object, the
Two Classifications of Robbery second element is satisfied.
1. Robbery with violence against, or intimidation of
persons. Third Element:
2. Robbery using force upon things. The Taking Must be Unlawful
The taking is unlawful when it is committed against the will of
ELEMENTS OF ROBBERY IN GENERAL (PBUI-VF) the owner, or at least, against the will of the possessor of the
1. Subject of robbery must be Personal property; thing taken. There is no taking if the thing has been received by
2. Personal property Belongs to another; the offender. It can be estafa if there is receiving only.
3. The taking must be Unlawful;
4. Committed with Intent to gain; But taking may exist if the custodian refuses to return the
5. Committed by means of property upon demand without just cause. But the act of freely
a. Violence or against or intimidation of any giving to offender is not taking. Act of freely giving not robbery.
person; or
b. Using Force upon anything. When is taking deemed complete?
If robbery with violence against or intimidation of persons:
First Element: • From the moment the offender gains possession of
Subject of Robbery Must be Personal Property the thing, regardless of whether he had the
Personal property refers anything susceptible of appropriation, opportunity to dispose of the thing taken.
includes tangible or intangible objects, susceptible of
appropriation (water, cable service or coconuts). If robbery with force upon things:
• The thing must be taken out of the place or building
Does not include real property. If real property is occupied or to consummate the crime.
real right is usurped by means of violence against or
intimidation of person, the crime is usurpation under 312. People v. Salvilla 184 SCRA 671
On 12 April 1986, a robbery was staged by the four accused at the New
Iloilo Lumber Yard at about noon time. The plan was hatched about two
The following are covered under robbery:
days before. The accused were armed with homemade guns and a hand
• RA 7382: Electricity. An Act of Pilferage of Electricity
grenade. When they entered the establishment, they met Rodita
and Theft of Electric Power Transmission of Hablero an employee thereat who was on her way out for her meal
Lines/Materials break and announced to her that it was a hold-up. She was made to go
• Water – RA 8041 back to the office and there Appellant Salvilla pointed his gun at the
• Telephone connections – PD 401 owner, Severino Choco, and his two daughters, Mary and Mimie the
• Telephone services (WWW v. People, 2014). latter being a minor 15 years of age and told the former that all they
• Cable television or internet signal or services. needed was money.
Hearing this, Severino told his daughter, Mary, to get a paper bag
Also applicable to theft. This definition applies to personal
wherein he placed P20,000.00 cash (P5,000.00, according to the
property as contemplated in theft cases. For so long as the defense) and handed it to Appellant. Thereafter, Severino pleaded with
object is susceptible of appropriation, it may be the subject of the four accused to leave the premises as they already had the money
robbery and/or theft. but they paid no heed.
Whether the object is licit or illicit is immaterial. Illicit and Instead, accused Simplicio Canasares took the wallet and wristwatch of
prohibited articles may also be the subject of robbery. Severino after which the latter, his two daughters, and Rodita, were
herded to the office and kept there as hostages.
At about 2:00 o'clock of the same day, the hostages were allowed to The inability to appropriate is of no defense.
eat. The four accused also took turns eating while the others stood It is no defense either that Appellant and his co-accused had
guard. Then, Appellant told Severino to produce P100,000.00 so he and no opportunity to dispose of the personalities taken. That fact
the other hostages could be released. Severino answered that he could
does not affect the nature of the crime.
not do so because it was a Saturday and the banks were closed.
In the meantime, police and military authorities had surrounded the From the moment the offender gained possession of the
premises of the lumber yard. Major Melquiades B. Sequio Station thing, even if the culprit had no opportunity to dispose of
Commander of the INP of Iloilo City, negotiated with the accused using the same, the unlawful taking is complete.
a loud speaker and appealed to them to surrender with the assurance
that no harm would befall them as he would accompany them Q. Is there a complex crime of robbery though serious
personally to the police station. The accused refused to surrender or to illegal detention under Article 48 of the RPC?
release the hostages.
There is complex crime. In this case, the crime of Serious Illegal

Thereafter, OIC Mayor, Rosa Caram, of Iloilo City arrived and joined the
negotiations. In her dialogue with the accused, which lasted for about
Detention was such a "necessary means" as it was selected by
four hours, Appellant demanded P100,000.00, a coaster, and some Appellant and his co-accused to facilitate and carry out more
raincoats. She offered them P50,000.00 instead, explaining the difficulty effectively their evil design to stage a robbery.
of raising more as it was a Saturday. Later, the accused agreed to receive
the same and to release Rodita to be accompanied by Mary Choco in Circumstances that led the court to consider: In contract, the
going out of the office. When they were out of the door, one of the detention in the case at bar was not only incidental to the
accused whose face was covered by a handkerchief, gave a key to robbery but was a necessary means to commit the same. After
Mayor Caram. With this, Mayor Caram unlocked the padlocked door
the amount of P20,000.00 was handed to Appellant, the latter
and handed to Rodita the P50,000.00, which the latter, in turn, gave to
one of the accused. Rodita was later set free but Mary was herded back
and his co-accused still refused to leave. The victims were then
to the office. taken as hostages and the demand to produce an additional
P100,000.00 was made as a prerequisite for their release. The
Issue: Was there taking given that they did not have the detention was not because the accused were trapped by the
opportunity to dispose? police nor were the victims held as security against the latter.
The detention was not merely a matter of restraint to enable
Rule: There was taking on the part of the accused, even if the malefactors to escape but deliberate as a means of
they have not appropriated the amount of the ransom and extortion for an additional amount. The detention herein was
exercised control and dominion of the same. made voluntarily made for the purpose the amount gaining
the amount from robbery from the victims.
Rodita, the lumberyard employee, testified that upon demand
by Appellant, Severino put P20,000.00 inside a paper bag and Fourth Element:
subsequently handed it to Appellant. In turn, accused Simplicio That the Taking was Committed with Intent to Gain
Canasares took the wallet and wristwatch of Severino. Intent to gain, being an internal act, cannot be established by
direct evidence (except in confession). Intent to gain is
In respect of the P50,000.00 from Mayor Caram, Rodita presumed from the unlawful taking of personal property.
declared that the Mayor handed the amount to her after she Action is the index of intention.
(the Mayor) had opened the padlocked door and that she
thereafter gave the amount to one of the holduppers. As a general rule, however, the unlawful taking of personal
property belonging to another involves intent to gain on the
The "taking" was, therefore, sufficiently proved. The money part of the offender.
demanded, and the wallet and wristwatch were within the
dominion and control of the Appellant and his co-accused and Fifth Element:
completed the taking. First Classification
The Taking Was Attended with Violence Against or
Severance of the goods from the possession of the owner and Intimidation of Persons
absolute control of the property by the taker, even for an
instant, constitutes asportation. The violence or intimidation must be against the person of the
offended party or victim, not upon the thing taken. It must be
There is no question that in robbery, it is required that there be against the person not property.
a taking of personal property belonging to another. This is
known the element of asportation, in essence which is the Q. Is snatching robbery?
taking of a thing out of the possession of the owner without his
privity and consent and without animus revertendi. PEOPLE v. CONCEPCION GR 200922
Accused was riding at the back of the motorcycle, snatched the
In fact, if there is no actual taking, there can be no robbery. bag of the victim placed on the shoulder. The prosecution failed
Unlawful taking of personal property of another is an essential to established that there was violence, intimidation or force.
part of the crime of robbery. The victim merely testified that Concepcion snatched her
shoulder bag hanging from shoulder. The victim did not say 4. The penalty of prision mayor in its maximum period
that Concepcion used violence, intimidation or force in to reclusion temporal in its medium period, if the
snatching shoulder bag. Given the facts there was no robbery, violence or intimidation employed in the
only theft. commission of the robbery shall have been carried
to a degree clearly unnecessary for the commission
When Should Violence or Intimidation be Present? of the crime, or when in the course of its execution,
the offender shall have inflicted upon any person,
If it causes fear or fright on the part of the victim. Threat of
not responsible for its commission any of the
arrest, pointing a gun, or sticking a knife to the victim. When physical injuries covered by subdivisions 3 and 4 of
should violence or intimidation against the person of offended said Article 263.
party exist? Should it occur before, during or after? 5. The penalty of prision correccional in its maximum
period to prision mayor in its medium period in
Situation: A picked the pocked of B and ran away with the other cases.
latter’s cellphone. B chased and overtook A. To deflect the
advances of B, A turned around and boxed B in the face. What Robbery with Violence Against or Intimidation of Persons
crimes are committed?
Paragraph Character of Robbery Penalty
• The violence happened after the taking?
1 Robbery with Homicide RP to
• It depends, on the nature of the violence, if it is merely
Robbery with Rape (266-A) Death
intimidation, it must occur before, but if violence the
Robbery with Mutilation (262)
on the gravity.
Robbery with Arson
• The general rule is that the violence or intimidation
2 Robbery with Serious Physical RT med to
must have been done before, subject to exceptions.
Injuries under Article 263 (1) RP
3 Robbery with Serious Physical RT
GENERAL RULE:Either violence or intimidation on the person of
Injuries under Article 263(2)
the offended party must be present before the taking of
4 Robbery with violence or PM max to
personal property is complete.
intimidation with unnecessary RT
degree for commission
EXCEPTION: When the violence results in homicide, rape,
Robbery with Serious Physical
intentional mutilation, or Article 263 (1) and (2). It may happen
Injuries (against non-accused)
after by reason on occasion of the robbery.
under Article 263 (3) and (4)
5 Other cases of violence PC
In cases falling under the exception: even if the taking was
Intimidation only
already complete when the violence was sued by the offender,
the acts of violence are complexed with the act of taking.
Special Complex Crimes
The taking of personal property is robbery complexed with any Article 48 on complex crime proper and compound crimes
of those crimes under Article 294, even if the taking was already cannot apply to Article 2994 for the Article already provides for
complete when the violence was used by the offender. a specific penalty for each kind of robbery with violence against
or intimidation of persons. There is only one penalty prescribed
Section One. – Robbery with Violence Against or even if two crimes are committed.
Intimidation of Persons
“When by reason or occasion of the robbery”
These phrases mean that the homicide or serious physical
ARTICLE 294. Robbery with violence against or
intimidation of persons – Penalties. – Any person guilty of injuries under (1) and (2), as well as rape and arson be
robbery with the use of violence against or intimidation of committed in the course or because of the robbery.
any person shall suffer:
1. The penalty of reclusion perpetua to death, when by
reason or on occasion of the robbery, the crime of 1. Robbery with Homicide
homicide shall have been committed; or when the By reason on occasion of the robbery, the crime of homicide
robbery been accompanied by rape or intentional shall have been committed. The killing may occur before,
mutilation or arson;
during or after the robbery. It is immaterial that death would
2. The penalty of reclusion temporal in its medium
period to reclusion perpetua when by reason or on supervene by mere accident, or that victim of homicide is
occasion of such robbery, any of the physical different from the victim or robbery or two or more are killed.
injuries penalized in subdivision 1 of Article 263
shall have been inflicted; Homicide is complexed with robbery in the following:
3. The penalty of reclusion temporal, when by reason a. To facilitate robbery or the escape of the culprit;
or on occasion of the robbery, any of the physical b. To preserve the possession by the culprit of loot;
injuries penalized in subdivision 2 of the article
c. To prevent discovery of the commission of robbery; or
mentioned in the next preceding paragraph shall
have been inflicted; d. To eliminate witnesses to the commission of the crim.
What if Robbery is Not Consummated, but the Homicides

What is essential is: proof of direct relation or intimate are Consummated?
connection with two commission of the killing and the robbery. Article 297 applies, when by reason or on occasion of an
attempted or frustrated robbery a homicide is committed, the
No direct connection or intimate relation person guilty of such offenses shall be punished.
• In People v. Quemeggen (2009) the killing was
distinct from the robbery there may be a connection Q. Is it necessary that the person(s) killed by reason or on
between the two crimes but no direct relation. occasion of robbery are victims of the robbery themselves?
• After taking passengers’ belonging two accused
alighted, passengers reported to police, police went to PEOPLE v. CALIXTRO
place, saw suspects riding pedicab. Suspects were The persons killed were not robbery victims they were members
caught and left under the custody of one of the of the band. We see, therefore, that in order to determine the
policemen. The policemen were killed. existence of the crime of robbery with homicide it is enough
. that a homicide would result by reason or on the occasion of
Q. What is the treatment with respect to multiple homicides the robbery.
committed by reason or on occasion of the robbery?
It is immaterial that the death would supervene by mere
PEOPLE v. QUINONES 183 SCRA 747 accident provided that the homicide be produced by reason or
The Court finds that the accused were incorrectly charged with on occasion of the robbery, inasmuch as it is only the result
robbery with multiple homicide and so were also incorrectly obtained, without reference or distinction as to the
sentenced by the trial court. The reason is that there is no crime circumstances, causes, modes or persons intervening in the
of robbery with multiple homicide under Revised Penal Code. commission of the crime, that has to be taken into
consideration.
The charge should have been for robbery with homicide only
regardless of the fact that three persons were killed in the The law does not require that the person killed is the owner of
commission of the robbery. In this special complex crime, the the property taken. The killing of any person by reason or on
number of persons killed is immaterial and does not increase the occasion of the robbery (even by mere accident) should be
the penalty prescribed in Article 294 of the said Code. punished regardless of the person killed.
• It is robbery with homicide even if the death of a
The general concept of this crime does not limit the taking of person supervened by mere accident.
human life to one single victim making the slaying of human
being in excess of that number punishable as separate Even if the homicide is by mere accident
individual offense or offenses. People v. Mangulabnan. The person was killed by accident on
the occasion of a robbery when one of the robbers fired at the
All the homicides or murders are merged in the composite, ceiling of the house and unknown to him, one of the occupants
integrated whole that is robbery with homicide so long as the was hiding thereat, and died as a consequence of the gunshot.
killings were perpetrated by reason or on the occasion of the
robbery. The penalty prescribed for the crime of robbery with In order to determine the existence of the crime of robbery with
homicide is reclusion perpetua, to be imposed only once even homicide, it is enough that a homicide resulting by reason or
if multiple killings accompanied the robbery. on occasion of the robbery.
Discussion: There is only one special complex crime of robbery No Such Crime as Robbery with Murder
with homicide. The word homicide as used in Article 294(1) is to be understood
in its generic sense as to include parricide and murder.
At Least One Consummated Homicide However, intent to gain required to fall under Article 294.
At least one homicide must be consummated. All others
committed in relation to the same robbery incident, whether PEOPLE v. DIU GR 201449 (2013)
attempted or frustrated, or even constituting physical injuries In robbery with homicide, the original criminal design of the
are deemed absorbed in the charge. malefactor is to commit robbery, with homicide perpetrated on
the occasion or by reason of the robbery.
What if the homicides committed are not consummated? • The intent to commit robbery must precede the
What if the three FH, two AH, is it still complex crime. It is not a taking of human life, the homicide may take place
special complex crime. Either separate crimes, or complex crime before or after or during the robbery.
under Article 48 if arose from single. If the killings were
necessary means or arising from a single act. Thus, the If the intent to gain came after – two separate crimes
maximum penalty of the crime with the higher penalty. If the idea of taking the personal property of another with intent
• Robbery with Frustrated Homicide/Murder to gain came to the mind of the offender after he had killed the
• Robbery with Attempted Homicide/Murder victim, he is guilty of two separate crimes of homicide or
murder, as the case may be and theft.
Who is Liable for Robbery with Rape?

Should the killing and the robbery be committed in one and
the same place? PEOPLE v. MORENO
No. In People v. Libre, the accused asked the victim for money, Therefore, accused Juan Moreno, who took no part in the rape,
threatening to shoot him should he refuse. He did not have the is guilty of robbery only under Article 294, No. 5 of the Revised
money with him, the accused shot him, and proceeded to his Penal Code but as to appellant Reynaldo Maniquez, who is
house and committed the robbery. SC held that the accused herein found to have raped Mary Ann Galedo, he should be
had the intention of robbing the deceased when they asked for guilty of the special complex crime of robbery with rape, under
money and they shot him down to eliminate an obstacle. Article 294, No. 2 of the Revised Penal Code, as correctly found
by the lower court.
This effectuated to their unlawful design which was shown by
the fact that they went to his house which was nearby and by It does Not Include Attempted Rape
force took his money therefrom. There is clearly a direct The rape should be consummated to constitute the special
connection between the killing and the robbery. complex crime contemplated under Article 294(1) on rape. It
cannot be covered by Article 48 because robbery and
What if only robbery is proved during trial? What if only attempted rape (even consummated) cannot be result of the
homicide is proved during trial? Is it necessary to prove both single act as well as it cannot be a necessary means to commit
felonies to attain a conviction? attempted rape, nor attempted rape to commit robbery.
• Only homicide
• Only robbery What if multiple rapes are committed on occasion of the
robbery? Can additional rapes be appreciated as
2. Robbery with Rape aggravating circumstance?
The offender must have the original intent to take the personal
property belonging to another with intent to gain, and such PEOPLE v. REGALA
intent must precede with rape. Intent to gain must precede There is no law providing that the additional rape or homicide
the rape or homicide. should be considered as aggravating circumstance. The
enumeration is exclusive unlike mitigating circumstances.
Q. What if the robbery was committed after?
It is true that additional rapes would result in anomalous where
PEOPLE v. DINOLA 183 SCRA 747 the standpoint of the gravity of the offense, robbery with one
It must be shown that the rape was committed by reason or on rape would be on the same level as robbery with multiple rapes.
the occasion of a robbery and not the other way around. The However, the remedy lies with the legislature. A penal law is
special complex crime under Article 294 contemplates a liberally constructed in favor of the accused.
situation where the original intent of the accused was to take
with intent to gain, personal property, belonging to another People v. Sultan (2010)
and rape is committed on the occasion thereof as an Consequently, unless and until a law passed providing that the
accompanying crime. additional rape/s or homicide/s be considered as aggravating,
the Court must construe the penal law in favor of the offender
In this type of felony, the intent to gain must precede the as no person may be brought within its terms if he is no clearly
intent to have illegal carnal intercourse with another, since made so by the statute. The additional rape is not considered
robbery with rape is basically a crime against property. as aggravating circumstance.
If the original design was to commit rape, but the accused after In case Homicide and Rape Attended in Robbery
committing rape, aslo committed robbery because the In the case of People v. Timple, trial court correctly designated
opportunity presented itself, the criminal acts should be viewed the crime as robbery with homicide, with rape being considered
as two distinct offenses. as an aggravating circumstance.
• In the present case, the taking of complainant’s money
appears to be only incidental to the rape and was Robbery with Arson
indeed more of an afterthought. Arson is also a crime against property, and arson in conjunction
with robbery with violence against or intimidation against
To be liable for such crime, the offender must have the intent person.
to take the personal property of another under circumstances
that makes the taking one of robbery, and such intent must There must be violence and intimidation upon persons first, and
precede the rape. thereafter the premises are burned.
If the original plan was to commit rape but the accused after Does not apply in the absence of violence or intimidation upon
rape also committed robbery when the opportunity presented persons. The circumstance is limited in application to Article
itself, the robbery should be viewed as separate and distinct 294, excluding robbery with force upon things.
crimes of robbery and rape.
Robbery with Physical Injuries PEOPLE v. APDUHAN

PENALTY NATURE OPERATIVE PHRASE Article 295 provides that if any of the classes of robbery
RT Med – RP Article 263 (1) By reason or on described in subdivisions 3, 4, and 5 of art. 29 is committed by
occasion a band, the offender shall be punished by the maximum period
RT Article 263(2) Same of the proper penalty.
PM Max – RT Med Attended with In the course of its
unnecessary execution
Correspondingly, the immediately following provisions of art.
violence and/or
injuries under Upon any person 296 define the term "band", prescribe the collective liability of
Article 263 (3) and not responsible for the members of the band, and state that "when any of the arms
(4) its commission used in the commission of the offense be in unlicensed firearm,
PC Max to PM Med Other cases: the penalty to be imposed upon all the malefactors shall be the
Necessary violence maximum of the corresponding penalty provided by law.
and/or intimidation
To reiterate, since art. 295, does not apply to subdivision 1 and
Robbery by Intimidation from Grave Threats 2 of art. 294, then the special aggravating factor in question,
In both crimes, there is intimidation by the offender, the which is solely applicable to robbery in band under art. 295,
purpose is to extort money, which is also intent to gain. cannot be considered in fixing the penalty imposable for
robbery with homicide under art. 294(1), even if the said crime
Article 294(5) Article 282 was committed by a band with the use of unlicensed firearms.
Intimidation is actual and Intimidation is conditional
immediate or future NOTE: Under Section 29, RA 10951:
Section 29. Use of Loose Firearm in the Commission of a Crime. – The
Intimidation is personal Can be made through an
use of a loose firearm, when inherent in the commission of a crime
intermediary
punishable under the Revised Penal Code or other special laws, shall be
Intimidation is directed only Intimidation may refer to the considered as an aggravating circumstance.
to the person of the victim person, honor, property or
that of his family Provided, That if the crime committed with the use of a loose firearm is
The gain is immediate That gain is not immediate penalized by the law with a maximum penalty which is lower than that
prescribed in the preceding section for illegal possession of firearm, the
penalty for illegal possession of firearm shall be imposed in lieu of the
Robbery from Grave Coercion penalty for the crime charged.
1. Both crimes, violence is used.
2. In robbery, there is intent to gain, such element is not Provided, further, That if the crime committed with the use of a loose
present in coercion. firearm is penalized by the law with a maximum penalty which is equal
to that imposed under the preceding section for illegal possession of
firearms, the penalty of prision mayor in its minimum period shall be
ARTICLE 295. Robbery with physical injuries, committed
imposed in addition to the penalty for the crime punishable under the
in an uninhabited place and by a band, or with the use of
Revised Penal Code or other special laws of which he/she is found
firearm on a street, road or alley. – If the offenses
guilty.
mentioned in subdivisions three, four and five of the next
preceding article shall have been committed in an
uninhabited place or by a band, or by attacking a moving The basis is no longer Article 295 or 296, you may apply Section
train, street car, motor vehicle or airship, or by entering the 29 of RA 10591 to justify the increase imposition of the penalty.
passenger's compartments in a train or, in any manner,
taking the passengers thereof by surprise in the respective
ARTICLE 296. Definition of a band and penalty incurred by
conveyances, or on a street, road, highway, or alley, and the
the members thereof. – When more than three armed
intimidation is made with the use of a firearm, the offender
malefactors take part in the commission of the robbery, it
shall be punished by the maximum period of the proper
shall be deemed to have been committed by a band. When any
penalties.
of the arms used in the commission of the offense be an
unlicensed firearm, the penalty to be imposed upon all the
Special Aggravating Circumstances - Article 294(3) (4) & (5) malefactors shall be the maximum period of the
Special aggravating if any of the offenses defined in subdivision corresponding penalty provided by law, without prejudice to
the criminal liability for illegal possession of such firearm.
3, 4, and 5 of Article 294 is committed either:
• In an uninhabited place; Any member of a band who is present at the commission of a
• By a band; robbery by the band, shall be punished as principal of any of
• By attacking a moving train; etc.; the assault committed by the band, unless it be shown that he
• By entering the passenger’s compartments in a train, attempted to prevent the same.
or in any manner taking the passengers thereof by
surprise in the respective conveyances; or Robbery by Band
• On a street, road, highway or alley, and the This provision provides for a (1) definition; (2) special
intimidation was made with the use of firearms. aggravating circumstances and of (3) manner of apportioning
This does not apply to Article 294 (1) and (2). criminal liablity.
People v. Apduhan Section Two. – Robbery by the Use of Force Upon Things
Verily, in order that the aforesaid special aggravating
circumstance of use of unlicensed firearm may be appreciated This is peculiar, it is to be committed in the context in entering
to justify the imposition of the maximum period of the proper a structure, breaking and entering, it must be in the context, a
penalty it is a condition sine qua non that the offense charged person with his whole body entering a structure.
be robbery committed by a band within the contemplation of
Article 295 (only under Article 294 subdivision 3 to 5). NOTE: Must be committed in the context of entering a house
or a building (Article 299 or 302) or breaking taking away for
Manner of apportioning criminal liability breaking of a furniture or receptacle
Any member of a band who is present at the commission of a
robbery the band, shall be punished as principal upon any of Robbery by the use of force upon things is committed either:
the assaults committed by the band, unless it be shown that he 1. When the offender entered a house or building by any
attempted to prevent the same. “Any of the assaults” include of the means under 299 or 302 or
homicide and rape. 2. Even if there was no entrance by any of those means,
he broke a wardrobe, chest or any other kind of locked
ARTICLE 297. Attempted and frustrated robbery or closed or sealed furniture or receptacle in the house
committed under certain circumstances. – When by reason or the building or he took it away to be broken or be
or on occasion of an attempted or frustrated robbery a forced open outside. (Taking away)
homicide is committed, the person guilty of such offenses
shall be punished by reclusion temporal in its maximum In any of such cases the taking of personal property belonging
period to reclusion perpetua unless the homicide committed to another with intent to gain from the broken furniture or
deserves a higher penalty under the provisions of this Code.
receptacle, or the taking away to be broken is robbery.
Attempted and Frustrated Robbery with Homicide PEOPLE v. JARANILLA 55 SCRA 563
The term homicide here is used in its generic sense, and it One essential requisite of robbery with force upon things under
includes multiple homicides, parricide and the penalty is the Articles 299 and 302 is that the malefactor should enter the
same whether the robbery is attempted or frustrated. building or dependency, where the object to be taken is found.
NOTE: Unless the homicide committed shall deserve a higher Articles 299 and 302 clearly contemplate that the malefactor
penalty (e.g. Murder). should enter the building. If the culprit did not enter the
building, there would be no robbery with force upon things.
ARTICLE 298. Execution of deeds by means of violence or
intimidation. – Any person who, with the intent to defraud In the instant case, the chicken coop where the six roosters were
another, by means of violence or intimidation, shall compel taken cannot be considered a building within the meaning of
him to sign, execute or deliver any public instrument or article 302. Not being a building, it cannot be said that the
document, shall be held guilty of robbery and punished by the accused entered same in order to commit robbery by means of
penalties respectively prescribed in this Chapter.
any of the five circumstances enumerated in article 302.
ELEMENTS (ICVI) Article 302 refers to houses or buildings which, while not
1. That the offender has the Intent to defraud another; actually inhabited, are habitable. Thus, a pig sty is not a building
2. That the offender Compels him to sign, execute, or within the meaning of Article 302. The stealing of hogs from a
delivery and public instrument or document; pig sty is theft and not robbery, although the culprit breaks into
3. That the compulsion is by means of Violence or it. Article 302 refers to habitable buildings.
Intimidation.
As may be seen from the photographs Baylon's coop, is about
In addition to unlawful taking, robbery under Article 294 also five yards long, one yard wide and one yard high. It has wooden
includes the act of compelling to sign, execute, or deliver any stilts and bamboo strips as bars.
public instrument or document by means of violence or
intimidation. The coop barely reaches the shoulder of a person of average
height like Baylon. It is divided into six compartments or cages.
NOTE: Article 298 is not applicable if the document is void. At A compartment has an area of less than one cubic yard.
most liable for physical injuries inflicted by reason of violence.
A person cannot be accommodated inside the cage or
Article 298 from Grave Coercion compartment. It was not intended that a person should go
When the offended party is under obligation to sign under the inside that compartment. The taking was effected by forcibly
law, there is no robbery, but only coercion if the violence was opening the cage and putting the hands inside it to get the
used in compelling the offended party to sign or deliver the roosters. Therefore, the taking of the six roosters from their
document. Note that in grave coercion intent to gain is not an coop should be characterized as theft and not robbery.
essential element.
Two Kinds of Robbery with Force Upon Things ELEMENTS OF ARTICLE 299(a) [EIPE-OBFF-T]
1. Robbery in an inhabited house or public building or 1. That the offender Enters an
edifice devoted to religious worship; a. Inhabited house
2. Robbery in an uninhabited place or in a private b. Public building
building. c. Edifice devoted to religious worship
2. That the entrance was effect by any of the following:
Note: The common element of Article 299 and 302 is that the a. Through an Opening not intended for
malefactor should enter the building or dependency where the entrance or egress;
object taken is found. b. By Breaking any wall, roof or floor, or
breaking any door or window;
ARTICLE 299. Robbery in an inhabited house or public c. By using False keys, picklocks or other similar
building or edifice devoted to worship. – Any armed person tools, or
who shall commit robbery in an inhabited house or public d. By using Fictitious name or pretending the
building or edifice devoted to religious worship, shall be exercise of public authority.
punished by reclusion temporal, if the value of the property 3. That once inside the building, the offender Took
taken shall exceed Fifty thousand pesos (P50,000), and if – personal property of another with intent to gain.
(a) The malefactors shall enter the house or building in
which the robbery is committed, by any of the
following means: Inhabited House
1. Through an opening not intended for entrance Means any shelter, ship or vessel constituting the dwelling of
or egress; one or more persons, even though the inhabitants thereof shall
2. By breaking any wall, roof, or floor or breaking temporarily be absent therefrom when the robbery is
any door or window; committed.
3. By using false keys, picklock or other similar
tools;
Public Building
4. By using any fictitious name or pretending the
Every building owned by the government or belonging to a
exercise of public authority.
private person but used or rented by the Government although
Or if – temporarily unoccupied by the same.
(b) The robbery be committed under any of the
following circumstances: Including their Dependencies
1. By breaking of doors, wardrobes, chests, or any Dependencies include all interior courts, warehouses, corrals,
other kind of locked or sealed furniture or granaries, barns, stables or other departments, or other
receptacle.
enclosed places contiguous to the building or edifice, having
2. By taking such furniture or object away to be
broken or forced open outside the place of an interior entrance connected therewith and which form party
robbery. of the whole. Does not include orchards and other lands for
cultivation or production.
When the offenders do not carry arms and the value of the
property exceeds Fifty thousand pesos (P50,000), the penalty Manner of Effecting Entry
next lower in degree shall be imposed. Note that the whole body of the culprit must be inside the
building to constitute “entering.”
The same rule shall be applied when the offenders are armed,
but the value of the property taken does not exceed Fifty
thousand pesos (P50,000). 1. Through an opening not intended for entrance or
egress;
When the said offenders do not carry arms and the value If the culprit entered the house through an open door, the
taken does not exceed Fifty thousand pesos (P50,000), they crime committed is only theft, not robbery by the use of force
shall suffer the penalty prescribed in the two next preceding upon things.
paragraphs, in its minimum period.
2. By breaking any wall, roof or floor or breaking any door
If the robbery be committed in one of the dependencies of an
inhabited house, public building, or building dedicated to or window;
religious worship, the penalties next lower in degree than The wall broken must be an outside wall, not a wall between
those prescribed in this article shall be imposed. rooms because the purpose of breaking wall is to enter the
house or building. Except, if the inside wall is part of a separate
dwelling occupied by another person.
Two Kinds of Robbery of Force Upon Things under 299
(a) When the malefactors entered a house or building
3. By using false keys, picklocks, or similar tools;
under the four circumstances mentioned.
False keys are genuine keys stolen from the owner or any keys
(b) The robbery committed under the two circumstances
other than those intended by the owner for use in the lock
involving the breaking or taking away for breaking.
forcibly opened by the offender. The false key or picklock must
be used to enter the building, otherwise if used on wardrobe or
NOTE: Penalty changes depending on amount and arms used.
receptacle only theft (must be broken).
4. By using any fictitious name or pretending the exercise Orchards and other lands used for cultivation or production
of public authority. are not included in the terms of the next preceding paragraph,
Not applicable to Article 302, the use of fictitious name or even if closed, contiguous to the building, and having direct
pretending the exercise of public authority could not be a connection therewith.
means to enter an uninhabited building in the first place.
The term “public building” includes every building owned by
the Government or belonging to a private person but used or
ELEMENTS OF ARTICLE 299(b) [IIPE-TBT]
rented by the Government, although temporarily unoccupied
1. The offender is Inside an Inhabited house, Public by the same.
building or Edifice devoted to religious worship,
regardless of the circumstance under which he
entered it; NOTE: The place is still inhabited house even if the occupant
2. That the offender Takes personal property belonging was absent it is ordinarily inhabited and intended as a dwelling.
to another with intent to gain under any of the
following circumstances: Three Requisites for Dependencies
a. By the Breaking of doors, wardrobes, chests, 1. Must be contiguous to the building;
or any other kind of locked or sealed 2. Must have an interior entrance connected therewith;
furniture or receptacle; 3. Must form part of the whole.
b. By Taking such furniture or objects away to
be broken or force open outside the place of ARTICLE 302. Robbery in an uninhabited place or in a
the robbery. private building. – Any robbery committed in an
uninhabited place or in a building other than those
mentioned in the first paragraph of Article 299, if the value of
Article 299(b)
the property taken exceeds Fifty thousand pesos (P50,000)
It may still constitute robbery as force upon things, even if the shall be punished by prision correccional in its medium and
entrance was not effected as those enumerated under Article maximum periods, provided that any of the following
299(a) but once inside the house or building, the taking of the circumstances is present.
personal property was made under the mentioned 1. If the entrance has been effected through any of the
circumstances. opening not intended for entrance or egress;
• When a sealed box or receptacle is taken out of the 2. If any wall, roof, floor, or outside door or window
house or building for the purpose of breaking it has been broken;
3. If the entrance has been effected through the use of
outside, it is not necessary that it is actually opened.
false keys, picklocks, or other similar tools;
• When the sealed box or receptacle is found by the 4. If any door, wardrobe, chest, or any sealed or closed
thief outside the house it is not robbery. furniture or receptacle has been broken;
5. If any closed or sealed receptacle, as mentioned in
ARTICLE 300. Robbery in an uninhabited place and by a the preceding paragraph, has been removed, even if
band. – The robbery mentioned in the next preceding article, the same be broken open elsewhere.
if committed in an uninhabited place and by a band, shall be
punished by the maximum period of the penalty provided When the value of the property taken does not exceed Fifty
therefore. thousand pesos (P50,000), the penalty lower in degree shall
be imposed.
NOTE: The robbery mentioned in Article 299, is committed in In the cases specified in Articles 294, 295, 296, 297, 299, 300
the inhabited house, public building or edifice devoted to and 302 of this Code, when the property taken is mail matter
religious worship. Such house, building or edifice must be or large cattle, the offender shall suffer the penalties next
higher in degree than those provided in said articles.
found in an uninhabited place.
• The “uninhabited place” and “by a band” are
qualifications that must both concur. ELEMENTS OF ARTICLE 302 [U-OBFBR-T]
1. That the offender entered an Uninhabited place or
ARTICLE 301. What is an inhabited house, public building, building which was not a dwelling house (IPE);
or building dedicated to religious worship and their 2. That any of the circumstances are present:
dependencies. — Inhabited house means any shelter, ship, or a. The entrance was effected through an
vessel constituting the dwelling of one or more persons, even Opening not intended for entrance or egress;
though the inhabitants thereof shall temporarily be absent b. A wall, roof, floor or outside door was
therefrom when the robbery was committed. Broken;
c. The entrance was effected through False
All interior courts, corrals, warehouses, granaries, barns,
coachhouses, stables, or other department, or enclosed keys, picklocks or other similar tools;
places, contiguous to the building or edifice, having an d. A door, wardrobe, chest or any sealed or
interior entrance connected therewith and which form part closed furniture or receptacle was Broken; or
of the whole, shall be deemed dependencies of an inhabited e. A closed or sealed receptacle was Removed
house, public building, or building dedicated to religious even fi the same be broken open elsewhere.
worship. 3. It was Taken with intent to gain.
ARTICLE 303. Robbery of cereals, fruits, or firewood in an ARTICLE 304. Possession of picklocks or similar tools. –
uninhabited place or private building. – In the cases Any person who shall, without lawful cause, have in his
enumerated in Articles 299 and 302, when the robbery possession picklocks or similar tools specially adopted to the
consists in the taking of cereals, fruits, or firewood, the culprit commission of the crime of robbery, shall be punished by
shall suffer the penalty next lower in degree than that arresto mayor in its maximum period to prision correccional
prescribed in said articles. in its minimum period.
The same penalty shall be imposed upon any person who

NOTE: Penalty is one degree lower when cereals, fruits or shall make such tools. If the offender be a locksmith, he shall
firewood are taken in robbery with force upon things. suffer the penalty of prision correccional in its medium and
maximum periods.
NOTE: Large cattle in robbery is not covered by the Anti-Cattle
Rustling Law because cattle rustling only refers to theft of large
ELEMENTS
cattle, not robbery thereof.
1. That the offender has in his Possession picklock or
• Cattle rustling is the taking away by any means,
similar tools;
method, or scheme, without the consent of the owner
2. That such picklocks or similar tools are Specially
of the animals whether for profit or for gain, whether
adopted to the commission of robbery.
committed with violence against or intimidation of
3. That the offender does Not have lawful cause for such
any person or force upon things.
possession.
• It includes the killing of large cattle or taking its meat
NOTE: Mere possession is sufficient to consummate the felony,
or hide without the consent of the owner.
these tools must be specially adopted to the commission of the
crime of robbery. The possession is without lawful cause.
Q. What is the proper imposable penalty if the elements of both
Article 294 and 299 are present?
ARTICLE 305. False keys. - The term "false keys" shall be
deemed to include:
Napolis v. Court of Appeals
1. The tools mentioned in the next preceding articles.
Under the old rule, when the felonies of robbery in an inhabited 2. Genuine keys stolen from the owner.
house under Article 299 of the RPC and robbery with violence 3. Any keys other than those intended by the owner
against or intimidation of a person under Article 294 of the RPC for use in the lock forcibly opened by the offender
are committed, the penalty for the latter crime (although the
lighter one) should be imposed because the violence against or
NOTE: If a false key or genuine key is used without consent of
intimidation of a person was the controlling qualification.
the owner is considered as a false under this article. This article
however provides no penalty, thus (2) and (3) not punishable.
New rule: We deem it more logical and reasonable to hold as
we do, when the elements of both provisions are present, that
CHAPTER TWO
the crime is a complex one, calling for the imposition as
BRIGANDAGE
provided under Article 48 of the said code, of the penalty of the
more serious offense, in its maximum period.
Brigandage, Defined
Brigandage is a crime committed by more than three armed
Q. Is robbery susceptible of being committed delito continuado
persons who form a bond of robbers for the purpose of
or continued crime?
committing robbery in the highway or kidnapping persons for
the purpose of extortion or to obtain ransom, or for any other
People v. Biruar
purpose to be attained by means of force and violence.
In this case, however, the accused after committing the crime
of robbery in band in the house of Mosende, went to the
neighboring house of Kalitas where they committed the crimes ARTICLE 306. Who are brigands; Penalty. — When more
than three armed persons form a band of robbers for the
of Arson and Robbery with Homicide with Physical Injuries.
purpose of committing robbery in the highway, or kidnapping
Obviously, the accused performed different acts with distinct persons for the purpose of extortion or to obtain ransom or
purposes which resulted in juridically independent crimes. for any other purpose to be attained by means of force and
violence, they shall be deemed highway robbers or brigands.
Thus, when several robberies are made from one house to Persons found guilty of this offense shall be punished by
another they constitute separate crime. prision mayor in its medium period to reclusion temporal in
its minimum period if the act or acts committed by them are
They were found guilty of three separate crimes of Robbery in not punishable by higher penalties, in which case, they shall
suffer such high penalties.
Band where the said accused, after committing a robbery in
band in a store, went to another house where they committed If any of the arms carried by any of said persons be an
a second robbery, and after committing it proceeded to unlicensed firearms, it shall be presumed that said persons
another house where they committed a third robbery in the are highway robbers or brigands, and in case of convictions
same barrio during the period from 7PM to 11PM on the very the penalty shall be imposed in the maximum period
same day.
Brigandage Punishable Acts

Brigandage is a crime committed by more than three armed 1. Aiding, abetting, or protecting a band of brigands;
persons who form a band of robbers for the purpose of: 2. Give them information of the movements of the police
• Committing robbery in the highway or or other peace officers of the government; and
• Kidnapping persons for the purpose of extortion or to 3. Acquires or receives the property taken by such
obtain ransom, or brigands.
• For any other purpose attained by means of violence.
PD 532
Mere formation or organization of band is not enough. Must Anti-Piracy and Anti-Highway Robbery Act of 1974
be coupled with the purpose/s mentioned.
Highway Robbery/Brigandage, Definition
Existence of purpose is sufficient. No need to show that the The seizure of any person for ransom, extortion or other
purpose/s was/were actually realized. unlawful purposes, or the taking away of the property of
another by means of violence against or intimidation of person
Presumption and Special Aggravating or force upon things of other unlawful means, committed by
If any of the arms carried by any of the members of the band any person on any Philippine Highway.
of robbers is an unlicensed firearm, it shall be presumed that
said persons are highway robbers or brigands, and the penalty Penalties
shall be imposed in the maximum period. The penalty of reclusion temporal in its minimum period shall
be imposed. If physical injuries or other crimes are committed
As distinguished from robbery in band. during or on the occasion of the commission of robbery or
Point of Brigandage Robbery brigandage, the penalty of reclusion temporal in its medium
distinction in band and maximum periods shall be imposed. If kidnapping for
As to purpose Robbery in the Robbery but not ransom or extortion, or murder or homicide, or rape is
highway; necessarily in the committed as a result or on the occasion thereof, the penalty
highway of death shall be imposed.
Kidnapping of
persons for Accomplice
extortion for Section 4. Any person who knowingly and in any manner aids
ransom; or protects pirates or highway robbers/brigands, such as giving
them information about the movement of police or other peace
Any other officers of the government, or acquires or receives property
purpose be taken by such pirates or brigands or in any manner derives any
attained by force benefit therefrom; or any person who directly or indirectly abets
and violence the commission of piracy or highway robbery or brigandage,
Scope the intent The target is Specific victim or shall be considered as an accomplice of the principal offenders
indiscriminate; to preconceived and be punished in accordance with the Rules prescribed by the
commit robbery target; to commit Revised Penal Code.
in the general a particular
sense robbery. CHAPTER THREE
Gravamen Mere formation Actual THEFT
for any of the commission;
mentioned mere conspiracy ARTICLE 308. Who are liable for theft. — Theft is
purposes. is not enough. 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
ARTICLE 307. Aiding and abetting a band of brigands. — the latter's consent. Theft is likewise committed by:
Any person knowingly and in any manner aiding, abetting or 1. Any person who, having found lost property, shall
protecting a band of brigands as described in the next fail to deliver the same to the local authorities or to
preceding article, or giving them information of the its owner;
movements of the police or other peace officers of the 2. Any person who, after having maliciously damaged
Government (or of the forces of the United States Army), the property of another, shall remove or make use
when the latter are acting in aid of the Government, or of the fruits or object of the damage caused by him;
acquiring or receiving the property taken by such brigands and
shall be punished by prision correccional in its medium 3. Any person who shall enter an inclosed estate or a
period to prision mayor in its minimum period. field where trespass is forbidden, or which belongs
to another and without the consent of its owner,
It shall be presumed that the person performing any of the shall hunt or fish upon the same or shall gather
acts provided in this article has performed them knowingly, cereals, or other forest or farm products.
unless the contrary is proven.
Theft it ruled that there was consummated theft. Valenzuela

Is simply robbery violence, intimidation or force upon things. contended theft that he committed that there was frustrated
Theft is committed by any person with intent to gain but theft citing the case of Dino v. Flores. Whether or not he
without violence against or intimidation of persons nor force committed consummated or frustrated theft. It was
upon things, shall take personal property of another without consummated theft, the ability to dispose is not constitutive
the latter's consent. Other definitions include: element of the commission of theft. Theft is consummated
• Any person who, having found lost property, shall fail when the mens rea and the actus reus has been performed.
to deliver the same to the local authorities or to its
owner; In contrast, the determination of whether a crime is frustrated
o Intent to gain is inferred from the deliberate or consummated necessitates an initial concession that all of
failure to deliver the lost property to its the acts of execution have been performed by the offender. The
owner or lawful possessor. critical distinction instead is whether the felony itself was
actually produced by the acts of execution. The determination
• Any person who, after having maliciously damaged of whether the felony was "produced" after all the acts of
the property of another, shall remove or make use of execution had been performed hinges on the particular
the fruits or object of the damage caused by him; and statutory definition of the felony.
• Any person who shall enter an inclosed estate or a The reason why the opportunity to dispose is not element of
field where trespass is forbidden, or which belongs to theft is because there is nothing in the statute that implies that
another and without the consent of its owner, shall you have to prove the show that they were able to dispose. The
hunt or fish upon the same or shall gather cereals, or Supreme Court is circumscribed with the provision of law.
other forest or farm products. • Even if it would have been an element it is still
considered attempted, not all elements are present.
ELEMENTS [TBI-WWM] • If included, it would give a practical defense from theft
1. Taking of personal property; for the opportunity to dispose is subjective, when it is
2. That the said property Belongs to another; determined present, which is not reflected in the law.
3. The taking is done with Intent to gain; presumed from
unlawful taking; Taking is deemed completed from the time possession is
4. The taking is done Without the consent of the owner deprived. There is no frustrated theft.
or current possessor; and
NOTE: Consent and knowledge are different. PREMISE: there is only one operative act of execution by the
5. That the taking be accomplished Without the use of actor involved in theft ─ the taking of personal property of
violence or intimidation against person or force upon another.
things.
6. The possession of the thing taken by the offender is The ability of the offender to freely dispose of the property
only Material/physical possession, not juridical. stolen is not a constitutive element of the crime of theft. It finds
no support or extension in Article 308, whether as a descriptive
When is Possession Juridical or Material? or operative element of theft or as the mens rea or actus reus
If possessor can set up a possession against the owner, you can of the felony.
set up defense against the owner this is juridical possession, like
money is given for a specific purpose. Other than that, it is Theft is produced when there is deprivation of personal
physical or material possession. The most illustrative example is property due to its taking by one with intent to gain.
the teller of the bank, when he receives the money from the
public, or if the teller misappropriates that money, is that theft It might be argued, that the ability of the offender to freely
or estafa? If juridical possession, it is then estafa. dispose of the property stolen delves into the concept of
"taking" itself, in that there could be no true taking until the
The teller is holding that money in a physical/material sense the actor obtains such degree of control over the stolen item. But
public has no contract with the teller, the teller is the mere even if this were correct, the effect would be to downgrade the
agent of the bank. The teller is a merely tasked to collect money, crime to its attempted, and not frustrated stage, for it would
the ownership is to the bank. There is no juridical possession. mean that not all the acts of execution have not been
The overriding principle is that it is only physical. completed, the "taking not having been accomplished.
When is taking considered consummated? The adoption of the rule —that the inability of the offender to
freely dispose of the stolen property frustrates the theft —
Valenzuela v. People would introduce a convenient defense for the accused which
He was seen pushing a cart containing Tide brand, and then he does not reflect any legislated intent. It is difficult to formulate
hailed a taxi going to Calderon and boarded the taxi. The guard definite standards as to when a stolen item is susceptible to free
stopped them before they were able leave the parking area of disposal by the thief.
Supersale Club along North Edsa. Upon the hearing in the RTC,
PRESUMPTION OF STOLEN PROPERTY ARTICLE 309. Penalties. — Any person guilty of theft shall
Although possession of stolen property within a limited time be punished by:
form the commission of the theft or robbery is not in itself a 1. The penalty of prision mayor in its minimum and
crime, it being possible to possess the same and remain medium periods, if the value of the thing stolen is
innocent, such possession may be sufficient for the formation more than One million two hundred thousand pesos
of an inference that the possessor is the thief unless the (P1,200,000) but does not exceed Two million two
hundred thousand pesos (P2,200,000), but if the
evidence satisfactorily proves that the property was acquired by
value of the thing stolen exceeds the latter amount
the accused by legal means. the penalty shall be the maximum period of the one
prescribed in this paragraph, and one year for each
Before an inference of guilt arising from possession of recently additional One million pesos (P1,000,000), but the
stolen goods can be made, however, the following basic facts total of the penalty which may be imposed shall not
need to be proven by the prosecution: exceed twenty years. In such cases, and in
(1) that the crime was committed; connection with the accessory penalties which may
be imposed and for the purpose of the other
(2) that the crime was committed recently;
provisions of this Code, the penalty shall be termed
(3) that the stolen property was found in the possession
prision mayor or reclusion temporal, as the case
of the defendant; and may be.
(4) that the defendant is unable to explain his possession 2. The penalty of prision correccional in its medium
satisfactorily (Mabunga v. People, GR 142039). and maximum periods, if the value of the thing
stolen is more than Six hundred thousand pesos
The Courts application of the presumption that a person found (P600,000) but does not exceed One million two
in possession of the personal effects belonging to the person hundred thousand pesos (P1,200,000).
3. The penalty of prision correccional in its minimum
robbed and killed is considered the author of the aggression,
and medium periods, if the value of the property
the death of the person, as well as the robbery committed, has stolen is more than Twenty thousand pesos
been invariably limited to cases where such possession is either (P20,000) but does not exceed Six hundred
unexplained or that the proferred explanation is rendered thousand pesos (P600,000).
implausible in view of independent evidence inconsistent 4. Arresto mayor in its medium period to prision
thereto (Mabunga v. People, GR 142039, 2004). correccional in its minimum period, if the value of
the property stolen is over Five thousand pesos
(P5,000) but does not exceed Twenty thousand
Example: She could not remember the identity to the accused,
pesos (P20,000).
when she was cross-examined, she could not remember. 5. Arresto mayor to its full extent, if such value is over
Luckily, the presumption applies, the identity of the goods Five hundred pesos (P500) but does not exceed Five
stolen were taken from the offense immediately after the thousand pesos (P5,000)
commission of the crime to be established. The fact it was 6. Arresto mayor in its minimum and medium periods,
recovered from the accused. The accused was convicted based if such value does not exceed Five hundred pesos
on the presumption, it gives rise to the presumption that the (P500).
possessor is the taker. The goods must be recently stolen. 7. Arresto menor or a fine not exceeding Twenty
thousand pesos (P20,000), if the theft is committed
Recently must be interpreted of the case to case basis.
under the circumstances enumerated in paragraph
3 of the next preceding article and the value of the
There is No Crime of Frustrated Theft thing stolen does not exceed Five hundred pesos
Theft cannot have a frustrated stage. Theft can only be (P500). If such value exceeds said amount, the
attempted or consummated. Unlawful taking is deemed provision of any of the five preceding subdivisions
complete from the moment the offender gains possession of shall be made applicable.
the thing even if he has no opportunity to dispose the same. 8. Arresto menor in its minimum period or a fine not
exceeding Five thousand pesos (P5,000), when the
value of the thing stolen is not over Five hundred
Unlawful taking which is the deprivation of one’s personal pesos (P500), and the offender shall have acted
property is the element which produces the felony in its under the impulse of hunger, poverty, or the
consummated stage. At the same time, without unlawful difficulty of earning a livelihood for the support of
taking as an act of execution, the offense can only be himself or his family.
consummated theft.
Example: A father stole a pack of powdered milk which was
The court is then satisfied beyond reasonable doubt that when worth P94 pesos, for his bail bond he paid is P4,000. He had to
there is unlawful taking the crime is completed. With intent to go home or else is child would die. It’s about life, it’s no longer
gain, the petitioner in this case (Valenzuela v. People), had about law. Now, under RA 10951 it is now arresto mayor, it is
acquired the physical possession of the stolen cases of now adjusted in accordance with inflation.
detergent for a considerable period of time that he was able to
drop these off at a spot in the parking lot, and long enough to What Happens if Value of the Property is Not Proven?
load these on the taxi cab. Thus, even if the accused failed to What if there is no proof the value for you lost the receipt or
dispose such, the crime of theft under Article 308 is still you cannot prove value. The accused is cannot have acquitted,
committed by the petitioner. the court may either apply the minimum penalty under Article
309 or fix the value of the property taken based on the day but not more than thirty (30) years, when the carnapping is
attendant circumstances. committed without violence against or intimidation of persons,
or force upon things; and by imprisonment for not less than
ARTICLE 310. Qualified theft. – The crime of theft shall be thirty (30) years and one (1) day but not more than forty (40)
punished by the penalties next higher by two degrees than years, when the carnapping is committed by means of violence
those respectively specified in the next preceding article, if against or intimidation of persons, or force upon things;
committed by a domestic servant, or with grave abuse of
confidence, or if the property stolen is motor vehicle, mail And the penalty of life imprisonment shall be imposed when
matter or large cattle or consists of coconuts taken from the the owner, driver, or occupant of the carnapped motor vehicle
premises of the plantation or fish taken from a fishpond or
is killed or raped in the commission of the carnapping.
fishery, or if property is taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any other
calamity, vehicular accident or civil disturbance. Carnapping is a Non-bailable Offense
Any person charged with carnapping or when the crime of
carnapping is committed by criminal groups, gangs or
Qualified Theft [DGM-CFO]
syndicates or by means of violence or intimidation of any
Two degrees higher than those respectively specified in 309.
person or persons or forced upon things; or when the owner,
1. Committed by a Domestic servant - no need to prove
driver, passenger or occupant of the carnapped vehicle is killed
to abuse the confidence of the employer, the
or raped in the course of the carnapping shall be denied bail
benchmark is the nature of the offender and not the
when the evidence of guilt is strong.
relationship between the parties.
2. Committed with Grave abuse of confidence – there
Concealment of Carnapping
must be a special relation of intimacy, a position of
Any person who conceals carnapping shall be punished with
utmost trust. Mere character or nature of the
imprisonment of six (6) years up to twelve (12) years and a fine
offender’s position is not enough. The special relation
equal to the amount of the acquisition cost of the motor
must be shown. Taking money in possession by a teller
vehicle, motor vehicle engine, or any other part involved in the
of the bank is qualified theft.
violation; Provided, That if the person violating any provision of
3. Stolen property be a [motor vehicle], Mail matter or
this Act is a juridical person, the penalty herein provided shall
[large cattle] – it is important to note that the theft of
be imposed on its president, secretary, and/or members of the
motor vehicle is under the coverage of RA 10883 or
board of directors or any of its officers and employees who may
the Anti-Carnapping Act of 2016 and that theft of
have directly participated in the violation.
large cattle (not robbery) now under PD 533 or the
Anti-Cattle Rustling Law.
4. Stolen property consists of Coconuts taken from the Object Taken Must be a Motor Vehicle as Defined by Law
premises of a plantation – Refer to the discussion Motor vehicle refers to any vehicle propelled by any power
under the case of Empelis v. IAC. other than muscular power using the public highways.
5. Property stolen is Fish taken from a fishpond or fishery
– if the fish is not taken from a fishpond or fishery is Exception: Road rollers, trolley cars, street sweepers, sprinklers,
falls only under Article 308 on simple theft. lawn mowers, bulldozers, graders, forklifts, amphibian trucks,
6. If property be stolen on Occasion of fire, earthquake, and cranes if not used on public highways; vehicles which run
typhoon, volcanic eruption, or any other calamity, only on rails or tracks; and tractors, trailers and traction engines
vehicular accident or civil disturbance. of all kinds used exclusively for agricultural purposes.
Trailers having any number of wheels, when propelled or

RA 10883
intended to be propelled by attachment to a motor vehicle,
New Anti-Carnapping Act of 2016
shall be classified as a separate motor vehicle with no power
rating; In the case of those not covered by the definition, by
NOTE: Theft of motor vehicle has been repealed by the anti-
implication Article 310 applies.
carnapping act. The substantial portion has been repealed.
There are still circumstances that it may fall under Article 308. If
Q. Must the information allege that the motor vehicle subject of
it does not fall under the definition of the motor vehicle.
carnapping is using a public highway?
Carnapping
IZON v. PEOPLE 107 SCRA 113
It is the taking with intent to gain, of a motor vehicle belonging
They were charged with the crime of robbery with violence
to another without the latter’s consent or by means of violence,
against persons, they were armed with bladed weapon and
intimidation or force upon things.
used in stabbing thereby upon Togorio several physical injuries
and took away one motorized vehicle worth P11K pesos. The
Penalties
argument was, because the information did not allege that the
Any person who is found guilty of carnapping shall, regardless
motorized tricycle stolen was using the public highway, so as to
of the value of the motor vehicle taken, be punished by
make it a motor vehicle as the term is defined in the carnapping
imprisonment for not less than twenty (20) years and one (1)
law, and therefore failed to inform them.
Issue: PEOPLE v. GULINAO 179 SCRA 774

Whether or not the license use of public highway is material Gulinao's contention in his fourth assignment of error that there
whether a motor vehicle is covered under anti-carnapping act. was no proof of intent to gain in the taking of Dr. Chua's car is
bereft of merit. Intent to gain, being an internal act, is presumed
There is nothing in the law that requires a license to use a public from the unlawful taking of the car. This presumption was
highway to make the vehicle a "motor vehicle" within the unrebutted.
definition given the anti-carnapping law.
PD 532: CATTLE-RUSTLING
If a vehicle uses the streets with or without the required license,
same comes within the protection of the law, for the severity of Cattle Rustling
the offense is not to be measured by what kind of streets or Is the taking away by any means, method or scheme, without
highway the same is used; but by the very nature of the vehicle the consent of the owner/raiser, of any of the above-mentioned
itself and the use to which it is devoted. animals whether or not for profit or gain, or whether committed
with or without violence against or intimidation of any person
Any vehicle which is motorized using the streets which are or force upon things.
public, not exclusively for private use, comes within the concept
of motor vehicle. A tricycle which is not included in the It includes the killing of large cattle or taking its meat or hide
exception, is thus deemed to be that kind of motor vehicle as without the consent of the owner/raiser.
defined in the law the stealing of which comes within its penal
sanction. Q. Is the mere refusal by the accused to return the cattle to the
lawful owner already constitute cattle rustling?
PEOPLE v. BUSTINERA GR 148233
He was hired to drive the Daewoo Taxi, it was agreed that he ORDONIO v. COURT OF APPEALS 199 SCRRA 873
would return the vehicle with the boundary fee. He failed to Complainant discovered the loss of his cow which he pastured
return the taxi for he was short of the boundary fee. The next a day before, when he asked the neighbor Ordonio, he denied.
day, the manager went to the house of Bustinera and inquired When Pajunar heard the mooing of the cow, he identified that
the wife, the wife did not know. it was his, when he followed the sound and he discovered that
it was his own cow. Ordonio said that it was his brother’s cow,
In 1997, the wife went to the garage, and revealed that it was He asked for the assistance of the barangay authorities.
abandoned, Cipriano recovered. Bustinera defended that he
returned. RTC held him liable under Article 310. The taking was Pajunar took the cow, the calf approached the mother. Since
held to be unlawful, for the refusal of the taxi driver to return Ordonio was not around, entrusted to the barrio official. When
the vehicle in the period of time. While initially the possession they met with complainant, and asked why he refused, he still
was lawful, but it became unlawful by refusing without just insisted that it was his brother’s.
cause.
The RTC convicted petitioner Anti-Cattle Rustling Law. Upon
Issue: petition before Supreme Court, Ordonio for misapprehension
Whether Article 310 or Carnapping Law applies of facts. The actual taking was allegedly not proven, the fact
that it was does not constitute cattle rustling. The refusal to
While the nature of appellant’s possession of the taxi was return does not fall.
initially lawful as he was hired as a taxi driver and was entrusted
possession thereof, his act of not returning it to its owner, which The lower courts did not convict the appellant on the basis of
is contrary to company practice and against the owner’s the missing calfs having been found tied in the accused's
consent transformed the character of the possession into an premises nor on his failure and/or refusal to tell the owner the
unlawful one. whereabouts of the calf, nor on the accused's stepping on the
rope to which the "lost" calf was tied when the complainant was
Appellant himself admits that he was aware that his possession towing it. Rather, the lower courts convicted him on the basis
of the taxi was no longer with Cipriano’s consent as the latter of his actuations when the lost calf was found in his possession.
was already demanding its return. 1. Petitioner denied upon inquiry.
2. Petitioner denied for the second.
However, the anti-carnapping law particularly deals with the 3. When found, insisted it belong of his brother.
theft and robbery of motor vehicles. Hence a motor vehicle is 4. Up to the extent request of authorities.
said to have been carnapped when it has been taken, with 5. Still at the barangay.
intent to gain, without the owner's consent, whether the taking
was done with or without the use of force upon things. Without Note the phraseology of the provision — "taking away by any
the anti-carnapping law, such unlawful taking of a motor means, methods or schemes." Thus, intent to gain may be
vehicle would fall within the purview of either theft or robbery inferred from the deliberate failure to deliver the lost property
which was certainly the case before the enactment of said to the proper person, the finder knowing that the property does
statute. not belong to him.
In this case, the several circumstances enumerated earlier vision is unobstructed, coconut groves cannot be efficiently
constitute an unbroken chain of events which leads to one fair watched because of the nature of the growth of coconut trees;
and reasonable conclusion — which is that the accused indeed and without a special measure to protect this kind of property,
took the calf with the intent to appropriate it. it will be, as it has been in the past the favorite resort of thieves.
However, after realizing that his claim can no longer hold water If the property stolen is fish taken from a fishpond or fishery
because private complainant has proved his ownership of the Fish includes other aquatic animals like crabs or mollusks.
calf in question, appellant now avers in as testimony that he
caught the calf because it was eating and destroying his plants PRESIDENTIAL DECREE NO. 1612
and it was his intention to return the calf to the owner. Anti-Fencing Law
To recapitulate, the stubborn insistence of the accused that the Fencing, Definition
missing calf belonged to his brother, Agustin, knowing fully well The act of any person who, with intent to gain for himself or for
that it belonged to the complainant (as he later admitted in trial another, shall buy, receive, possess, keep, acquire, conceal, sell
court), in essence, is cattle rustling. 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,
Qualified Theft of Coconuts from Premises of Plantation or should be known to him, to have been derived from the
proceeds of the crime of robbery or theft.
EMPELIS v. COURT OF APPEALS 132 SCRA 398
They were charged with qualified theft for stealing 50 coconuts Who is a Fence?
there were four of them. It includes any person, firm, association corporation or
partnership or other organization who/which commits the act
Guillermo Catarining owner of a coconut plantation in Sitio of fencing.
Tambangan, Dapdap, Uson, Masbate, was frequently losing
coconuts in his plantation due to thievery. Thus, on the early NOTE: Fencing is malum prohibitum but requires knowledge
morning of June 10, 1979, while he stayed in his plantation to on the part of the offender.
keep watch, he saw four (4) persons within the premises of his
plantation gathering and tying some coconuts. He then went Presumption of Fencing (Section 5)
home, fetched his neighbors Anastacio Andales and Presumption of Fencing. Mere possession of any good, article,
Teodomero Garay and took along a flashlight. item, object, or anything of value which has been the subject of
robbery or thievery shall be prima facie evidence of fencing.
Catarining beamed his flashlight on the four persons who,
turned out to be the herein appellants. Elpidio Empelis and DIZON-PAMINTUAN v. PEOPLE
Emilio Carbungco were seen carrying coconuts on a piece of This case arose when Encarnacion, when he arrived in his
wood on their shoulders while Salvad and Mamerto Carbungco residence. A set of jewelry and items and cash, these were found
were espied carrying coconuts with their bare hands. As the in Torres St. at the stall of Dizon-Pamintuan. The jewelry taken
four persons noticed the presence of Catarining and the latter's from the undersecretary of the DPWH of several jewelry from
companions, they dropped the coconuts they were carrying his home and found in the stall of petitioner.
and fled leaving behind about 50 pieces of coconuts valued at
P50, two poles, one made of bamboo and the other of wood. After that, the authorities made an entrapment operation which
Pamintuan was arrested, after they identified the properties
When is taking of coconuts a qualified theft and when simple? stolen. As defense, she presented his brother, although they
The stealing of coconuts when they are still in the tree or were not the owner of the stall, but bought it from Fredo.
deposited on the ground within the premises is qualified theft.
When coconuts are stolen in any other place, it is simple theft. Her defense was that she did not know that the items were
stolen and was tendering the stall and did not know the nature
Stated differently, if the coconuts were taken in front of a house of the goods.
along the highway outside the coconut plantation, it would be
simple theft only. Elements of Fencing [RNKI]
1. A crime of Robbery or theft has been committed;
What about rice and sugar? Can they not cry violation of the 2. A person, Not a principal or accomplice in said crime,
equal protection clause? Why only coconuts? buys, receives, possesses, keeps, acquires, conceals,
In the matter of theft of coconuts, the purpose of the heavier sells or disposes, or buys and sells; or in any manner
penalty is to encourage and protect the development deals in any article or item, object or anything of value;
3. With personal Knowledge, or should be known to said
In the matter of theft of coconuts, the purpose of the heavier person that said item, object or anything of value has
penalty is to encourage and protect the development of the been derived from the proceeds of the crime of
coconut industry as one of the sources of our national robbery or theft;
economy. Unlike rice and sugar cane farms where the range of 4. With Intent to gain for himself or for another;
Presumption was not rebutted: the petitioner was unable to committed. As complainant Rosita Lim reported no loss, we
rebut the presumption under P.D. No. 1612. She relied solely cannot hold for certain that there was committed a crime of
on the testimony of her brother which was insufficient to theft. Thus, the first element of the crime of fencing is absent,
overcome the presumption, and, on the contrary, even that is, crime of robbery or theft has been committed. First
disclosed that the petitioner was engaged in the purchase and element was absent.
sale of jewelry and that she used to buy from a certain Fredo.
What is more, there was no showing at all that the accused
The prosecution need only prove that these items were found knew or should have known that the very stolen articles were
in the possession of the accused with the presumption under the ones sold him. Knowledge refers to a mental state of
Section 5, and there is knowledge on the part of the accused awareness about a fact.
that these items were stolen, it is burden of the accused to
explain how she came to the property and how she had no Since the court cannot penetrate the mind of an accused and
knowledge of such. state with certainty what is contained therein, it must determine
such knowledge with care from the overt acts of that person.
One is deemed to know a particular fact if he has the And given two equally plausible states of cognition or mental
cognizance, consciousness or awareness thereof, or is aware of awareness, the court should choose the one which sustains the
the existence of something, or has the acquaintance with facts, constitutional presumption of innocence.
or if he has something within the mind's grasp with certitude
and clarity. Q. Is good faith a valid defense?
Since Section 5 of P.D. No. 1612 expressly provides that "[m]ere DIMAT v. PEOPLE GR 181184
possession of any good, article, item, object, or anything of Nissan Safari was bought, spotted the car with a suspicious
value which has been the subject of robbery or thievery shall be number, the engine and chassis was under the list of stolen
prima facie evidence of fencing," it follows that the petitioner is vehicles. The defense was that the car had different chassis and
presumed to have knowledge of the fact that the items found engine number. When it was inspected it was different from
in her possession were the proceeds of robbery or theft. The deed of sale. He claimed for lack of intent, the presumption
presumption is reasonable for no other natural or logical applies. You cannot claim absence of criminal intent, but the
inference can arise from the established fact of her possession Supreme Court said it was malum prohibitum, the lack of malice
of the proceeds of the crime of robbery or theft. The intent to is not a defense. What need be proven is the object was stolen.
gain is discernable for displaying the goods in her stall.
Presidential Decree 1612 is a special law and, therefore, its
RAMON TAN v. PEOPLE GR 134298 violation is regarded as malum prohibitum, requiring no proof
What is the effect if the owner failed to report the fact of theft or of criminal intent.
robbery?
Of course, the prosecution must still prove that Dimat knew or
Mendez was one of the employees, in 1991 he left the should have known that the Nissan Safari he acquired and later
company. When he left, some of the rods and equipment were sold to Delgado was derived from theft or robbery and that he
missing. She discovered that propellers and stocks were lost. intended to obtain some gain out of his acts.
Mendez was arrested and admitted that they stole from the
complainant’s warehouse. He asked for forgiveness. They Evidently, Dimat knew that the Nissan Safari he bought was not
pointed to Ramon C. Tan as the one who bought. Lim filed a properly documented. He said that Tolentino showed him its
case against Ramon C. Tan for violation of PD 1612. old certificate of registration and official receipt. But this
certainly could not be true because, the vehicle having been
The defense of the accused is that he never met nor talked to carnapped, Tolentino had no documents to show. That
Mendez, further the receipts were shown. The incident was no Tolentino was unable to make good on his promise to produce
reported to the police. The issue raised is whether or not the new documents undoubtedly confirmed to Dimat that the
prosecution has successfully established the elements of Nissan Safari came from an illicit source. Still, Dimat sold the
fencing as against petitioner. same to Sonia Delgado who apparently made no effort to check
the papers covering her purchase. Precursor was carnapping.
Element (1) and (3) are absent.
Rosita Lim never reported the theft or even loss to the police. ARTICLE 311. Theft of the property of the National Library
She admitted that after Manuelito Mendez, her former and National Museum. – If the property stolen be any
employee, confessed to the unlawful taking of the items, she property of the National Library or the National Museum, the
forgave him, and did not prosecute him. Theft is a public crime. penalty shall be arresto mayor or a fine ranging from Forty
It can be prosecuted de oficio, or even without a private thousand pesos (P40,000) to One hundred thousand pesos
complainant, but it cannot be without a victim. (P100,000), or both, unless a higher penalty should be
provided under the provisions of this Code, in which case, the
offender shall be punished by such higher penalty.
The failure to report the fact of theft is fatal to her case, for the
first element was absent for that theft or robbery has been
CHAPTER FOUR an information for the violation thereof, and not for a separate
USURPATION crime involving violence or intimidation. But, whenever,
appropriate, he may be sentenced to suffer the penalty for the
ARTICLE 312. Occupation of real property or usurpation acts of violence and to pay a fine based on the value of the gain
of real rights in property. — Any person who, by means of obtained.
violence against or intimidation of persons, shall take
possession of any real property or shall usurp any real rights Thus, if by reason or on the occasion of such occupation or
in property belonging to another, in addition to the penalty usurpation, the crime of homicide, or any of the physical injuries
incurred for the acts of violence executed by him, shall be penalized in either subdivisions 1 or 2 of Article 263 is
punished by a fine from 50 to 100 per centum of the gain
committed; or when the same shall have been accompanied by
which he shall have obtained, but not less than Fifteen
thousand pesos (P15,000). rape or intentional mutilation; or when, in the course of its
execution, the offender shall have inflicted upon any person not
If the value of the gain cannot be ascertained, a fine of from responsible for its commission any of the physical injuries
Forty thousand pesos (P40,000) to One hundred thousand covered by subdivisions 3 and 4 of Article 263; or when it is
pesos (P100,000) shall be imposed. committed through intimidation or through the infliction of
physical injuries not covered by subdivisions 1 to 4 of Article
Overt Acts 263 of the Revised Penal Code, i.e., physical injuries penalized
1. Taking possession of any real property belonging to under Articles 265 and 266 of the Revised Penal Code, the
another with violence against or intimidation of accused may be convicted for the violation of Article 312.
persons; and
2. Usurping any real right in property belonging to However, he shall be sentenced: (a) to suffer the penalty for
another by means of violence against or intimidation homicide, rape, intentional mutilation and physical injuries
of persons; provided under subdivisions 1 to 4 of Article 263, other physical
injuries 18 or for the intimidation, which may fall under Article
Two-layered Penalty 282 (Grave Threats) or Article 286 (Grave Coercion) of the
1. Amount Revised Penal Code, as the case may be, and (b) to pay a fine
2. For the Violence based on the value of the gain obtained by him, which shall be
an amount equivalent to 50 to 100 per centum of such gain, but
ELEMENTS [T/U-BV-I] in no case less than seventy-five (P75.000) pesos.
1. That the offender Takes possession of a real property
or Usurps any real rights in property; Theft or Robbery Usurpation
2. That the real property or real right Belongs to another; There is intent to gain.
3. That Violence against or intimidation of persons is Taking or asportation Occupation or usurpation
used by the offender in occupying the real property or Personal property is taken Real property is taken
usurping real rights in property.
4. That there is Intent to gain.
ARTICLE 313. Altering boundaries or landmarks. — Any
person who shall alter the boundary marks or monuments of
PEOPLE v. ALFECHE GR 102070 towns, provinces, or estates, or any other marks intended to
Article 312 may also be considered as defining and penalizing designate the boundaries of the same, shall be punished by
the single, special and indivisible crime of occupation of real arresto menor or a fine not exceeding Twenty thousand pesos
property or usurpation of real rights in property by means of (P20,000), or both.
violence against or intimidation of persons. * Intent to gain immaterial.
CHAPTER FIVE
It is likewise not a complex crime as defined under Article 48. CULPABLE INSOLVENCY
However, while Article 294 provides a single penalty for each
class of crime therein defined, Article 312 provides a single,
ARTICLE 314. Fraudulent insolvency. – Any person who
albeit two-tiered, penalty consisting of a principal penalty, shall abscond with his property to the prejudice of his
which is that incurred for the acts of violence, and an additional creditors, shall suffer the penalty of prision mayor, if he be a
penalty of fine based on the value of the gain obtained by the merchant and the penalty of prision correccional in its
accused. maximum period to prision mayor in its medium period, if he
be not a merchant.
This is clear from the clause "in addition to the penalty incurred
for the acts of violence executed by him." For want of a better ELEMENTS
term, the additional penalty may be designated as an 1. That the offender is a Debtor, that is, he has
incremental penalty. obligations due and payable.
2. That he Absconds his property.
What Article 312 means then is that when the occupation of 3. That there be Prejudice to his creditors.
real property is committed by means of violence against or
intimidation of persons, the accused may be prosecuted under NOTE: Actual prejudice is required under 314.
CHAPTER SIX b. By altering the quality, fineness or weight of

SWINDLING AND OTHER DECEITS anything pertaining to his art or business.
c. By pretending to have bribed any Government
ARTICLE 315. Swindling (estafa). – Any person who shall employee, without prejudice to the action for
defraud another by any of the means mentioned herein below calumny which the offended party may deem
shall be punished by: proper to bring against the offender. In this
case, the offender shall be punished by the
1st. The penalty of prisión correccional in its maximum period maximum period of the penalty.
to prisión mayor in its minimum period, if the amount of the d. By postdating a check, or issuing a check in
fraud is over Two million four hundred thousand pesos payment of an obligation when the offender
(P2,400,000) but does not exceed Four million four hundred had no funds in the bank, or his funds
thousand pesos (P4,400,000), and if such amount exceeds the deposited therein were not sufficient to cover
latter sum, the penalty provided in this paragraph shall be the amount of the check. The failure of the
imposed in its maximum period, adding one year for each drawer of the check to deposit the amount
additional Two million pesos (P2,000,000); but the total necessary to cover his check within three (3)
penalty which may be imposed shall not exceed twenty years. clays from receipt of notice from the bank
In such cases, and in connection with the accessory penalties and/or the payee or holder that said check has
which may be imposed and for the purpose of the other been dishonored for lack or insufficiency of
provisions of this Code, the penalty shall be termed prisión funds shall be prime facie evidence of deceit
mayor or reclusion temporal, as the case may be. constituting false pretense or fraudulent act.
2nd. The penalty of prisión correccional in its minimum and Any person who shall defraud another by means of
medium periods, if the amount of the fraud is over One fraudulent acts as defined in paragraph 2(d) thereof shall be
million two hundred thousand pesos (P1,200,000) but does punished by:
not exceed Two million four hundred thousand pesos
(P2,400,000). 1st. The penalty of reclusion temporal in its maximum period,
if the amount of fraud is over Four million four hundred
3rd. The penalty of arresto mayor in its maximum period to thousand pesos (P4,400,000) but does not exceed Eight
prisión correccional in its minimum period, if such amount is million eight hundred thousand pesos (P8,800,000). If the
over Forty thousand pesos (P40,000) but does not exceed amount exceeds the latter, the penalty shall be reclusion
One million two hundred thousand pesos (P1,200,000). perpetua.
4th. By arresto mayor in its medium and maximum periods, if 2nd. The penalty of reclusion temporal in its minimum and
such amount does not exceed Forty thousand pesos medium periods, if the amount of the fraud is over Two
(P40,000): Provided, That in the four cases mentioned, the million four hundred thousand pesos (P2,400,000) but does
fraud be committed by any of the following means: not exceed Four million four hundred thousand pesos
1. With unfaithfulness or abuse of confidence, namely: (P4,400,000).
a. altering the substance, quantity, or quality of
anything of value which the offender shall 3rd. The penalty of prisión mayor in its maximum period, if
deliver by virtue of an obligation to do so, even the amount of the fraud is over One million two hundred
though such obligation be based on an immoral thousand pesos (P1,200,000) but does not exceed Two
or illegal consideration. million four hundred thousand pesos (P2,400,000).
b. By misappropriating or converting, to the
prejudice of another, money, goods, or any 4th. The penalty of prisión mayor in its medium period, if such
other personal property received by the amount is over Forty thousand pesos (₱40,000) but does not
offender in trust or on commission, or for exceed One million two hundred thousand pesos
administration, or under any other obligation (₱1,200,000).
involving the duty to make delivery of or to
return the same, even though such obligation 5th. By prisión mayor in its minimum period, if such amount
be totally or partially guaranteed by a bond; or does not exceed Forty thousand pesos (P40,000).
by denying having received such money, goods,
or other property. 3. Through any of the following fraudulent means:
c. By taking undue advantage of the signature of (a) By inducing another, by means of deceit, to sign
the offended party in blank, and by writing any any document.
document above such signature in blank, to the (b) By resorting to some fraudulent practice to
prejudice of the offended party or any third insure success in a gambling game.
person. (c) By removing, concealing or destroying, in
2. By means of any of the following pretense or whole or in part, any court record, office files,
fraudulent acts executed prior to or simultaneously document or any other papers.
with the commission of the fraud;
a. By using fictitious name, or falsely pretending Swindling and Other Deceits
to possess power, influence, qualifications, It also involves the deprivation of property, either personal or
property, credit, agency, business or imaginary
real property, but the taking here is with the prior consent of
transactions, or by means of other similar
deceits. the owner or the possessor, the content was eventually
breached, vitiated by fraud.
Estafa, Two General Elements Article 315, Paragraph 1 (a)

1. That the offender defrauded another either by the ESTAFA WITH UNFAITHFULNESS OR
three ways either by abuse of confidence, false ABUSE OF CONFIDENCE
pretenses or fraudulent acts, or through fraudulent
means; and Altering the substance, quantity, quality of anything of value the
2. That there be prejudice on the part of the offended offender shall deliver by virtue of an obligation to do so, even
though such obligation be based on immoral or illegal
party that is capable of pecuniary estimation.
consideration.
Three Ways of Estafa
1. Estafa with unfaithfulness or abuse of confidence ELEMENTS OF PARAGRAPH 1(A) [OAD]
2. Estafa by means of false pretenses or fraudulent acts 1. That the offender has an Onerous obligation to deliver
3. Estafa through other fraudulent means something of value;
2. That he Alters its substance, quantity, or quality.
In all these cases, damage or prejudice capable of pecuniary 3. That Damage or prejudice is caused to another.
estimation must be caused to the offended party, in order
consummate estafa. There Must be An Existing Obligation to Deliver
The obligation must be onerous. There is an agreement as to
If there is no damage it is mere attempted or frustrated as the the substance, quality, or quantity of the thing to be delivered,
case may be. It is not indispensable, at the very least there must it may be based on illegal or immoral consideration, it need not
be intent to cause damage. be valid. Shabu can be an object of estafa under 1(a).
The element of prejudice or damage is used to determine as Under the provision at bar, the obligation to deliver already
basis of the penalty, thus it is necessary to determine the existed and the offender on making the delivery, has altered the
amount of damage. substance, quantity or quality of the thing he delivered.
First Form of Estafa: Article 315, Paragraph 1 (b)

ESTAFA WITH UNFAITHFULNESS OR ESTAFA WITH UNFAITHFULNESS OR
ABUSE OF CONFIDENCE ABUSE OF CONFIDENCE
By misappropriating or converting, to the prejudice of another,

ARTICLE 315, PARAGRAPH 1 money, goods, or any other personal property received by the
1. With unfaithfulness or abuse of confidence, offender in trust, or on commission, or for administration, or
namely: under any other obligation involving the duty to make delivery of
a. Altering the substance, quantity, or quality of or to return the same, even though such obligation be totally or
anything of value which the offender shall partially guaranteed by a bond; or by denying having received
deliver by virtue of an obligation to do so, even such money, goods, or other property.
though such obligation be based on an
immoral or illegal consideration. ELEMENTS OF PARAGRAPH 1(B) [MTCAO-M/D-P-D]
b. By misappropriating or converting, to the 1. That Money, goods, or other personal property be
prejudice of another, money, goods, or any received by the offender, in Trust, or on Commission,
other personal property received by the or for Administration, or under any Other obligation
offender in trust or on commission, or for involving the duty to make delivery of, or to return, the
administration, or under any other obligation same. (Also known as juridical possession)
involving the duty to make delivery of or to 2. That there be Misappropriation or conversion of such
return the same, even though such obligation money or property by the offender, or Denial on his
be totally or partially guaranteed by a bond; or part of such receipt;
by denying having received such money, 3. That such misappropriation or conversation or denial
goods, or other property. is to the Prejudice of another, and;
c. By taking undue advantage of the signature of 4. That there is a Demand by offended party to offender.
the offended party in blank, and by writing any o Prima facie presumption; the purpose of
document above such signature in blank, to demand may be substituted.
the prejudice of the offended party or any third
person. FIRST ELEMENT
The receipt of money, goods, or personal property under
Three Modes under Paragraph 1 circumstances giving rise to juridical possession.
A. By altering substance, quality, or quantity of the thing
to be delivered. When the thing is received by the offender from the offended
B. By misappropriating or converting personal property party in trust, or on commission or for administration, the
received. offender acquires both material or physical possession and
C. By taking undue advantage of signature in blank. juridical possession of thing received.
Juridical Possession Two obligations in a Trust Receipts Agreement

Possession which gives the transferee a right over the thing 1. Sell the goods.
which he may set-up even against its owner. Article 315 (1)(b) 2. Remit the proceeds of the goods to the bank, or if
enumerates the possible circumstances which gives rise to unsold return the same goods to the bank.
juridical possession:
1. Receipt of things in trust Obligations under Section 4
2. Receipt of things on commission 1. In the case of goods or documents,
3. Receipt of things on administration (a) to sell the goods or procure their sale; or
4. Under any other obligation involving the duty to make (b) to manufacture or process the goods with the
delivery of or to return the same. purpose of ultimate sale: Provided, That, in the
case of goods delivered under trust receipt for the
Receipt of Things in Trust purpose of manufacturing or processing before
Receipt of certain goods or objects for a specific purpose, and its ultimate sale, the entruster shall retain its title
should that purpose be unmet, the correlative obligation of the over the goods whether in its original or
recipient to return them to the owner thereof. Receipt of fruits processed form until the entrustee has complied
or proceeds with the obligation to remit the same to the lawful fully with his obligation under the trust receipt; or
owner thereof; execution of trust receipts agreement. (c) to load, unload, ship or tranship or otherwise deal
with them in a manner preliminary or necessary
PD 115 to their sale; or
TRUST RECEIPT AGREEMENT
2. In the case of instruments,
Estafa in Connection with Trust Receipts (a) to sell or procure their sale or exchange; or
A person who executed trust receipts, and despite demands by (b) to deliver them to a principal; or
the bank, shall be guilty of Article 315, 1(b) of RPC if the (c) to effect the consummation of some transactions
offender have failed either: involving delivery to a depository or register; or
a. To turn over to the bank the proceeds of the sale of (d) to effect their presentation, collection or renewal
the goods; or
b. To return said goods if they were not sold. Penalty Clause (Section 13)
The failure of an entrustee to turn over the proceeds of the sale
Section 4. What Constitutes a Trust Receipt Transaction of the goods, documents or instruments covered by a trust
A trust receipt transaction, is any transaction by and between the receipt to the extent of the amount owing to the entruster or
entruster, and entrustee, whereby the entruster, who owns or holds as appears in the trust receipt or to return said goods,
absolute title or security interests over certain specified goods, documents or instruments if they were not sold or disposed of
documents or instruments, releases the same to the possession of the
in accordance with the terms of the trust receipt shall constitute
entrustee upon the latter's execution and delivery to the entruster of a
signed document called a "trust receipt"
the crime of estafa, punishable under the provisions of Article
Three hundred and fifteen, paragraph one (b) of Act Numbered
Wherein the entrustee binds himself to hold the designated goods, Three thousand eight hundred and fifteen, as amended,
documents or instruments in trust for the entruster and to sell or otherwise known as the Revised Penal Code.
otherwise dispose of the goods, documents or instruments with the
obligation to turn over to the entruster the proceeds thereof to the Trust Receipts Agreement
extent of the amount owing to the entruster or as appears in the trust Simply stated, a trust receipt transaction is one where the
receipt or the goods, documents or instruments themselves if they are
entrustee has the obligation to deliver to the entruster the price
unsold or not otherwise disposed of, in accordance with the terms and
conditions specified in the trust receipt, or for other purposes
of the sale, or if the merchandise is not sold, to return the
substantially equivalent to any of the following: merchandise to the entruster.
Discussion: You want to engage in retail, the problem is you There are two obligations under a trust receipt agreement:
don’t have capital or properties to secure any loan with the 1. Refers to money received under the obligation
bank. You obtain a loan from the bank if you want to pursue involving the duty to turn it over to the owner of the
business, but you do not have anything to offer as security for merchandise sold;
the loan. The bank enters with you a trust receipts transaction. 2. Refers to the merchandise received to return it to the
owner.
The bank will buy the goods for you intended to sell in the
business, turn over the possession of the goods to you, so one Intent to Defraud under Trust Receipts, Presumption
can use them in business. Obligations is to sell them, upon sale, Under Trust Receipts Law, intent to defraud is presumed when:
the obligation to remit the proceeds to the bank, to the extent 1. The entrustee ails to turn over the proceeds of the sale
of the value of the trust receipts agreement. If you cannot sell of goods covered by the trust receipt to entruster;
the goods, you have to return because the bank is the owner of 2. When entrustee fails to return the goods under trust,
the goods. This relationship is when a person is holding in trust if they are not disposed of in accordance with the
the goods owned by the bank or the financier. terms of the trust receipts.
In all trust receipt transactions, both obligations are alternative: Exception [Important]
a. The return of the proceeds of the sale or Nonetheless, when both parties enter into agreement knowing
b. The return or recovery of the goods, whether raw or fully well that the return of the goods subject of the trust receipt
processed. is not possible even without any fault on the part of the trustee,
it is not a trust receipt transaction penalized under Section
ALLIED BANKING v. ORDONEZ GR 82495 13 of PD 115 in connection with Article 315, par. 1(b) of the
Does the penal provision of PD 115 apply when the goods Revised Penal Code, as the only obligation actually agreed
covered by the Trust Receipt do not from part of the finished upon by the parties would be the return of the proceeds of
products which are ultimately sold but are instead used in the the sale transaction.
operation of the equipment machineries of the entrustee-
manufacturer? NG v. PEOPLE GR 173905
Where the entrustee is engaged in the business of building and
Facts: Despite repeated demands, PBM failed to return the sale fabricating telecommunication towers, and informed entrustor
thus Allied Banking filed a case against violation of PD 115. Out that the proceeds would be used for purchase of construction
of the said obligation resulted an overdue amount of materials necessary for the completion of several steel towers
P1,475,274.09. Despite repeated demands, PBM failed and he was commissioned to build by several telecommunication
refused to either turn over the proceeds of the sale of the goods companies, PD 115 was not applicable.
or to return the same. On 7 September 1984, petitioner filed a
criminal complaint against private respondent for violation of The Court acquitted Anthony Ng and ruled that the Trust
PD 115 before the office of the Provincial Fiscal of Rizal. Receipts Agreement was created to aid in financing importers
and retail dealers who do not have sufficient funds or resources
After preliminary investigation wherein, private respondent to finance the importation or purchase of merchandise, and
failed to appear or submit a counter-affidavit and even refused who may not be able to acquire credit through utilization, as
to receive the subpoena, the Fiscal found a prima facie case for collateral of the merchandise imported or purchased.
violation of PD 115 on four (4) counts and filed the
corresponding information in court. Since Asiatrust knew that Anthony Ng was neither an importer
nor retail dealer, it should have known that the said agreement
DEFENSE: The objects covered were used in the manufacturing could not possibly apply to petitioner.
process and were not sold.
The true nature of a trust receipt transaction is that it is to be
HELD: The answer must be affirmative, it is stated in Section 4, utilized as a convenient business device to assist importers and
petitioner that the items were intended for sale, hence, there merchants solve their financing problems. Obviously, the State
was no deceit resulting in a violation of the trust receipts which in enacting the law, sought to find a way to assist importers and
would constitute a criminal liability. Again, we cannot uphold merchants in their financing in order to encourage commerce
this contention. in the Philippines.
The non-payment of the amount covered by a trust receipt is Following the precept of the law, such transaction affect
an act violative of the entrustee's obligation to pay. There is no situations when the entruster who owns or holds absolute title
reason why the law should not apply to all transactions covered or security interest over specified goods, documents or the
by trust receipts, except those expressly excluded. instruments, releases these subject goods to the possession of
the entrustee.
In an attempt to escape criminal liability, private respondent
claims PD 115 covers goods which are ultimately destined for The release of such goods to the entrustee is conditioned upon
sale and not goods for use in manufacture. his execution and delivery to the entruster of a trust receipt
wherein the former binds himself to hold the specified goods,
But the wording of Sec. 13 covers failure to turn over the documents or instruments in trust for the entruster and to sell
proceeds of the sale of entrusted goods, or to return said goods or otherwise dispose of such goods, documents or instruments
if unsold or disposed of in accordance with the terms of the with the obligation to turn over the proceeds to the extent of
trust receipts. the amount owing to the entruster, or the goods, documents
or instruments themselves if they are unsold.
The Court takes judicial notice of customary banking and
business practices where trust receipts are used for importation The entruster is entitled only to the proceeds derived from the
of heavy equipment, machineries and supplies used in sale of goods released under a trust receipt to the entrustee.
manufacturing operations.
Considering that the goods in this case were never intended
Even if it is used in manufacturing process, even if not to for sale but for use in the fabrication of steel communication
be sold in themselves, are still covered under PD 115. There towers, the trial court erred in ruling that the agreement is a
is a correlative obligation to return the proceeds of the goods trust receipt transaction.
to Allied Banking.
LAND BANK v. PEREZ GR 166884 (2012) Receipt of Things on Commission

Respondents were officers of ACDC corporation for Covers contract of agency where money or properties are
construction business, they executed trust receipts to secure received by the agent for a particular purpose. Agency under
construction materials for projects. When it matured, ACDC the law which a person can appear at multiple places at the
failed to return to Landbank the proceeds. same time. The agent’s possession and custody over the
properties are by virtue merely of the commission given by his
On several occasions, respondents executed in favor of Land principal to him.
Bank trust receipts to secure their purchase of construction
materials that they will need in their construction projects. In a similar manner, the proceeds or properties received by the
agent in behalf of the principal are owned by the latter. The
When the receipts matured, ACDC failed to return to Land Bank agent has not claim of ownership thereto. Failure of the
the proceeds of the construction projects or the construction principal to give him his just share does not constitute estafa.
materials subject of the trust receipts. • The owner has every right to dispose, the agent is in
commission for the principal.
When both parties enter into an agreement knowing that the
return of the goods subject of the trust receipt is not possible MURAO AND HURTAZUELA v. PEOPLE GR 141485
even without any fault on the part of the trustee, it is not a trust Murao is the owner of LMICE, a company engaged in business
receipt transaction penalized under Section 13 of P.D. 115; the of selling and refilling fire extinguishers. Hurtazuela is a branch
only obligation actually agreed upon by the parties would be manager of LMICE.
the return of the proceeds of the sale transaction.
In terms of their agreement:
This transaction becomes a mere loan, where the borrower is Federico, as a dealer for LMICE, could obtain fire extinguishers
obligated to pay the bank the amount spent for the purchase from LMICE for a 50% discount, provided that he sets up his
of the goods. own sales force, acquires and issues his own sales invoice, and
posts a bond with LMICE as security for the credit line extended
Indeed, goods sold in retail are often within the custody or to him by LMICE.
control of the trustee until they are purchased. In the case of
materials used in the manufacture of finished products, these Failing to comply with the condition under the said Dealership
finished products – if not the raw materials or their components Agreement, Federico nonetheless, was still allowed to act as a
similarly remain in the possession of the trustee until sold. part-time sales agent fro LMICE entitled to a percentage
commission from the sales of fire extinguishers.
But the nature of construction business is peculiar, the client
owns the structure, a trust receipt transaction, the materials is Federico’s first successful transaction as sales agent of LMICE
in the entrustee, in a construction, the material used is towards involved two fire extinguishers sold to Landbank for the price
the third person, when you install or apply to materials to that of P7,200. Landbank issued a check pay to the order of LMICE
structure, they form part of the ownership of the trial. c/o Chito Federico, for the amount of P5,934 less the 15%
discount granted by Federico and 3% withholding tax.
But the goods and the materials that are used for a construction
project are often placed under the control and custody of the Federico then encashed the check at Landbank and remitted
clients employing the contractor, who can only be compelled only P2,436 to LMICE but kept the P3,500 to himself as his
to return the materials if they fail to pay the contractor and commission from the sale.
often only after the requisite legal proceedings.
Federico, on behalf of LMICE, subsequently facilitated a
The contractor’s difficulty and uncertainty in claiming these transaction with the City Government of Puerto Princesa for the
materials (or the buildings and structures which they become refill of 202 fire extinguishers. Pursuant to the purchase orders,
part of), as soon as the bank demands them, disqualify them LMICE refilled and delivered all 202 fire extinguishers. The City
from being covered by trust receipt agreements. Government of Puerto Princesa issued a check in the amount of
P300,000. Within the same day, Hurtazuela claimed the check
So, transaction with at the very outset, the parties know the from the City Government and deposited it under the current
impossibility of returning the goods, is taken out of the account of LMICE with PCIBank.
purview of the PD 115. Thus, construction agreements, the third
party cannot be coerced to be returned. Federico went to see petitioner Hurtazuela at the LMICE branch
office in Puerto Princesa to demand the amount of P154K as his
It is fundamental in a trust receipt transaction that the person commission from the payment by the City Government of
who advanced payment for the merchandise becomes the Puerto Princesa.
absolute owner of said merchandise and continues as owner
until he or she is paid in full, or if the goods had already been Hurtazuela however refused to pay private complainant
sold, the proceeds should be turned over to him or to her. Federico his commission since two of them could not agree on
the proper amount thereof.
Q. Is there estafa when the principal withholds the proceeds of NOTE: You cannot successfully constitute a case for estafa
an agent? Does the principal hold the proceeds on commission against a principal, the proceeds were owned by the LMICE as
in favor of the agent. there was a signed agreement, which eventually the sales agent
shall receive. The principal does not hold the amount in trust
His right to a commission does not make private complainant of the agent.
Federico a joint owner of the money paid to LMICE by the City
Government of Puerto Princesa, but merely establishes the But if it was the agent who obtained the proceeds and failed to
relation of agent and principal. refuse to return to LMICE, then this would be estafa. But if it is
the principal, he has every right to do so, he is the owner. Like
Although private complainant Federico never had the in a partnership, where partners are co-owners, cannot file
opportunity to operate as a dealer for LMICE under the terms estafa against a co-owner, precisely because they are owners.
of the Dealership Agreement, he was allowed to act as a sales
agent for LMICE. He can negotiate for and on behalf of LMICE If you are holding as owner thereof there is no estafa
for the refill and delivery of fire extinguishers, which he, in fact, • A sold his vehicle to B, in their agreement there is a
did on two occasions – with Landbank and with the City resolutory condition that should B fail to pay the
Government of Puerto Princesa. purchase price of the vehicle, he should return the
vehicle to B. This is a conditional contract of sale.
As a sales agent, private complainant Federico entered into
negotiations with prospective clients for and on behalf of his • Therefore, failure to return does not give rise to estafa,
principal, LMICE. When negotiations for the sale or refill of fire because you are already the owner of the property. In
extinguishers were successful, private complainant Federico a contract of sale, the ownership is already vested in
prepared the necessary documentation. Purchase orders, the debtor subject to a resolutory condition in case on
invoices, and receipts were all in the name of LMICE. non-fulfillment of the payment of the purchase price.
Unlike in a contract to sell, where there is a suspensive
It was LMICE who had the primary duty of picking up the empty condition upon the completion of the purchase price
fire extinguishers, filling them up, and delivering the refilled wherein ownership shall only be vested by then,
tanks to the clients, even though private complainant Federico
personally helped in hauling and carrying the fire extinguishers • The offended party can request for collection, for
during pick-up from and delivery to clients. damages and amount of the property.
All profits made, and any advantage gained by an agent in the A fiduciary relationship between the complainant and the
execution of his agency should belong to the principal. accused is an essential element of estafa by misappropriation
or conversion, without which the accused could not have
In the instant case, whether the transactions negotiated by the committed estafa.
sales agent were for the sale of brand new fire extinguishers or
for the refill of empty tanks, evidently, the business belonged Since LMICE, through petitioners, directly collected the
to LMICE. payment, then it was already in possession of the amount, and
no transfer of juridical possession thereof was involved herein.
Consequently, payments made by clients for the fire
extinguishers pertained to LMICE. When petitioner Huertazuela, Given that private complainant Federico could not claim
as the Branch Manager of LMICE in Puerto Princesa City, with ownership over the said payment or any portion thereof, LMICE
the permission of petitioner Murao, the sole proprietor of had nothing at all to deliver and return to him.
LMICE, personally picked up Check No. 611437 from the City
Government of Puerto Princesa and deposited the same under The obligation of LMICE to pay private complainant Federico
the Current Account of LMICE with PCIBank, he was merely his commission does not arise from any duty to deliver or return
collecting what rightfully belonged to LMICE. the money to its supposed owner, but rather from the duty of
a principal to give just compensation to its agent for the
Since LMICE is the lawful owner of the entire proceeds of the services rendered by the latter.
check payment from the City Government of Puerto Princesa,
then the petitioners who collected the payment on behalf of Receipt of Things in Administration
LMICE did not receive the same or any part thereof in trust, or Administration of an estate of the deceased or absentee. The
on commission, or for administration, or under any other administrator of the estate of a deceased person, received
obligation involving the duty to make delivery of, or to return, money or other personal property in such capacity, and
the same to private complainant Federico, thus, the RTC misappropriated the same for his personal benefit, he is guilty
correctly found that no fiduciary relationship existed between of estafa. Where the accused collected a sum of money as
petitioners and private complainant Federico. rentals from the different tenants of his employer, failed to
account for and turn over said amount to his employer, upon
A fiduciary relationship is an essential element without demand therefore, he is guilty of estafa.
which the accused could not have committed estafa.
Under Any Obligation Involving the Duty to Make DEGANOS v. PEOPLE GR 162826
Delivery of, Or to Return the Same Information: Accused conspiring, confederating and helping one
Receipt of thing in trust, on commission, or for administration, another, received from Spouses Atty. Jose Bordador and Lydia
should be confused with the obligation to make delivery of, or Bordador gold and pieces of jewelry worth ₱438,702.00, under express
to return the same to the owner. obligation to sell the same on commission and remit the proceeds
thereof or return the unsold gold and pieces of jewelry, but the said
accused, once in possession of the said merchandise and far from
In the former, a fiduciary relationship is indispensable. In the complying with their aforesaid obligation, inspite of repeated demands
latter, there is no necessity for the existence of a fiduciary for compliance therewith, did then and there willfully, unlawfully and
relationship. In the latter, so long as you have the obligation to feloniously, with intent of gain and grave abuse of confidence misapply,
return then it is sufficient. misappropriate and convert to their own use and benefit the said
merchandise and/or the proceeds thereof, to the damage and prejudice
MANAHAN v. COURT OF APPEALS GR 111656 (1996) of said Sps. Atty. Jose Bordador and Lydia Bordador in the said amount
That on or about and during the period from April 30, 1976 and of ₱438,702.00.
September 7, 1976, in the Municipality of Makati, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the Defense: Degaños claims that his partial payments to the
above-named accused, in accordance to a Lease Agreement received complainants novated his contract with them from agency to
from IFC-LEASING AND ACCEPTANCE CORPORATION One (1) Unit loan, thereby converting his liability from criminal to civil.
Isuzu Dump Truck and One (1) Unit Kimco Hough JH65CN Payloader all
valued at P110,000.00, with the obligation to pay rentals as agreed
He insists that his failure to complete his payments prior to the
upon and to return the said equipments upon termination of the lease
period, but accused far from complying with his obligation, with intent
filing of complaint-affidavit by complainants notwithstanding,
of gain, grave abuse of confidence and to defraud the herein the fact that the complainants later required him to make a
complainant, did then and there willfully, unlawfully and feloniously formal proposal before the barangay authorities on the
misappropriate, misapply and convert to his own personal use and payment of the balance of his outstanding obligations
benefit the said equipments, and despite demands failed and refused confirmed that novation had occurred.
and still fails and refuses to return the said equipments, to the damage
and prejudice of said IFC-LEASING AND ACCEPTANCE CORPORATION, HELD: Degaños’ claim was again factually unwarranted and
represented by one ARMANDO M. MARCELO, in the aforementioned
legally devoid of basis, because the partial payments he made
amount of P110,000.00
and his purported agreement to pay the remaining obligations
did not equate to a novation of the original contractual
Petitioner did receive the dump truck from IFC under a lease
relationship of agency to one of sale.
contract with the specific provision under paragraph 10 thereof
requiring petitioner to return the equipment to IFC "at the
As we see it, he misunderstands the nature and the role of
expiration of the period or extended period hereof or earlier
novation in a criminal prosecution.
termination of (the) agreement.
Novation and Criminal Liability

Although a contract of lease is not fiduciary in nature, still the
Novation is not a mode of extinguishing criminal liability under
clause "any other obligation involving the duty to make delivery
the penal laws of the country. Only the State may validly waive
of or to return" personal property is broad enough to include
the criminal action against an accused.
a civil obligation.
Novation is relevant only to determine if the parties have

Phrase “or any other obligation involving the duty to make
meanwhile altered the nature of the obligation prior to the
delivery of, or to return the same” refers contracts of bailment,
commencement of the criminal prosecution in order to prevent
such as contract of lease of personal property, contract of
the incipient criminal liability of the accused.Novation when
deposit, and commodatum where juridical possession of the
there is the existence of criminal liability, it does not extinguish
thing was transferred to the lessee, depository or borrower and
it, but it existed prior to it may extinguish criminal liability.
wherein the latter is obligated to return the same thing.
The changes alluded to by petitioner consists only in the

NOTE: Transfer of juridical possession should not involve the
manner of payment. There was really no substitution of debtors
transfer of ownership. When ownership of the thing is
since private complainant merely acquiesced to the payment
transferred to the person who has received it, his failure to
but did not give her consent to enter into a new contract.
return it will give rise to civil liability only.
Although the novation of a contract of agency to make it one of

Failure to pay the purchase price of the thing gives rise to civil
sale may relieve an offender from an incipient criminal liability,
liability only.
that did not happen here, for the partial payments and the
proposal to pay the balance the accused made during the
Q. Since juridical possession is predicated on some kind of
barangay proceedings were not at all incompatible with
contract, does novation effectively operate to extinguish
Deganos liability under the agency that had already attached.
criminal liablity? When the terms of the contract are modified,
then does it work to extinguish criminal liability?
Rather than converting the agency to sale, therefore, he even SADDUL v. COURT OF APPEALS 192 SCRA 277
thereby confirmed his liability as the sales agent of the The words convert and misappropriate connote an act of
complainants. The manner of payment is not incompatible using or disposing of another’s property as if it were one’s own
with the contract of agency, it does not tantamount to a or devoting it to a purpose or use different from that agreed
novation to a prior contract, it is a mere confirmation of the upon. To misappropriate to one’s own use includes, not only
agency between them. conversion to one’s personal advantage, but also every attempt
to dispose of the property of another without right.
But novation may be effective in relieving the offender of a • The conversion or misappropriation need not be
fiduciary obligation, or obligation to return prior to the permanent for so long as it is coupled with the intent
existence of criminal liability. to defraud.
The novation of a contract of agency to make it one of sale may Conversion is an unauthorized assumption and exercise of the
relieve the offender from an incipient criminal liability. But in right of ownership over goods or personal chattels. Simply it is
order that novation of contract may relieve the accused of the the use of property without the explicit permission of the
criminal liability, the novation must take place before the owner, or beyond the scope.
criminal liability is incurred. Such that criminal liability for
estafa already committed is not affected by compromise or Facts: Saddul received the Leyland spare parts from the AFP in
novation of contract. trust for LAND ROVER which authorized him to sell them. “We
now authorize you to undertake the disposal of the parts at the
MILLA v. PEOPLE GR 188726 best possible prices available from your local market.” There
it must be clarified that mere payment of an obligation before was no basis for a finding of conversion or misappropriation.
the institution of a criminal complaint does not, on its own,
constitute novation that may prevent criminal liability. The complainant is not the same as LAND ROVER, it could not
be said that it was prejudice by the act of selling, the spare parts
Even in Civil Law the acceptance of partial payments, without were owned by the LAND ROVER from the start, it was the latter
further change in the original relation between the complainant that gave the authority for it to sell. There was no basis for a
and the accused, cannot produce novation. For the latter to finding of conversion or misappropriation. Complainant found
exist, there must be proof of intent to extinguish the original out that it was not the owner; LAND ROVER has the absolute
relationship, and such intent cannot be inferred from the mere authority to decide how to dispose the spare parts and decided
acceptance of payments on account of what is totally due. to give authority to the accused in this case. An owner, part-
owner or co-owner cannot possibly convert or misappropriate
Much less can it be said that the acceptance of partial the object that he owns or co-owns.
satisfaction can affect the nullification of a criminal liability that
is fully matured, and already in the process of enforcement. Estafa by Denying Having Received the Thing
If A borrowed a ring from B to be used by the former on a
With respect to criminal liability, the role of novation may only certain occasion and later when B asked A to return it, the latter
be to either prevent the rise of criminal liability or to cast doubt denied having received it, A is guilty of estafa.
on the true nature of the original basic transaction, whether or
not it was such that its breach would not give rise to a penal THIRD ELEMENT
responsibility, as when the money loaned is made to appear as The act caused damage or prejudice to another.
a deposit, or other similar disguise is resorted to.
“To the Prejudice of Another”” – Not Necessarily Owner
It must be of juridical possession in case of trust, commission, Victim need not be the owner of the thing misappropriated or
there must be fiduciary relation. With respect to carnapping, it converted or denied. Victim may be third person. The offender
only involves incidents theft or motor vehicle, it does not need not actually have realized a gain or profit from the act of
include conversion or misappropriation. misappropriation or conversion. It is sufficient that damage was
caused to another person.
Novation of contract: it does not exculpate criminal liability, at
most it can only prevent existence but cannot extinguish an Notes on Partnerships and Co-Ownership
existing. • Partners are not liable for estafa of money or property
received for the partnership when the business has
SECOND ELEMENT commenced, and profits accrued.
Misappropriation and/or conversion of the thing received, or • Failure of a partner to account for partnership funds
the denial of the receipt thereof. may give rise to civil obligation only not estafa.
o Exception: If the partner has misappropriated
Three Ways of Committing Article 315, par. 1(b) share of another partner in profits is estafa.
1. By misappropriating the thing received. • A co-owner is not liable for estafa, but he is liable if,
2. By converting the thing received. after termination, he misappropriates exclusive share.
3. By denying the thing was received.
FOURTH ELEMENT ELEMENTS ESTAFA BY DECEIT PARGRAPHS 2 AND 3

Demand by the offended party to the offender. 1. That there must be a false pretense, fraudulent act, or
fraudulent means.
It is not indispensable to give rise criminal liability. Significance 2. That such false pretense, fraudulent act or fraudulent
is evidentiary. Failure of the offender to satisfy the demand to means must be made or executed prior to or
account for the object, things or money received or ought to simultaneously with the commission of the fraud.
be remitted gives rise to the prima facie presumption of 3. That the offended party must have relied on such, that
misappropriation. is, he was induced to part with his money or property.
4. That as a result the offended party suffered damage.
Presumption of Misappropriation
The mere failure to return the thing received for safekeeping, Second Form of Estafa:
trust, commission or administration, or under any other ESTAFA BY MEANS OF FALSE PRETENSES OR
obligation to deliver or to return the same and that the FRAUDULENT ACTS EXECUTED PRIOR TO OR
explanation of the accused is absolutely devoid of merit, it can SIMULTANEOUS WITH THE COMMISSION OF THE FRAUD
give rise to this presumption.
ARTICLE 315, PARAGRAPH 2
What is the reckoning point in the imposition of the 2. By means of any of the following false pretenses or
penalties? What amount should you look at? fraudulent acts executed prior to or simultaneous
What if the offender pays a substantial amount. The gravity of with the commission of the fraud:
the crime is determined based on the amount not returned or a. By using fictitious name, or falsely pretending
value of the object before the institution of the criminal action, to possess power, influence, qualifications,
regardless of subsequent payments made. property, credit, agency, business or imaginary
transactions or by means of other similar
Article 315, Paragraph 1 (c) deceits.
ESTAFA WITH UNFAITHFULNESS OR b. By altering quality, fineness, or weight of
ABUSE OF CONFIDENCE anything pertaining to his art or business.
c. By pretending to have bribed any Government
By taking undue advantage of the signature of the offended party employee, without prejudice to the action for
in blank, and by writing any document above such signature in calumny, which the offended party may deem
blank, to the prejudice of the offended party or any third person.
proper to bring against the offender. In this
case, the offender shall be punished by the
ELEMENTS OF PARAGRAPH 1(c) [BDDC] maximum period of the penalty.
1. That the paper with the signature of the offended d. By post-dating a check, or issuing a check in
party be in Blank. payment of an obligation when the offender
2. That the offended party should have Delivered it to had no funds in the bank, or his funds
the offender. deposited therein were not sufficient to cover
3. That above the signature of the offended party a the amount of the check. The failure of the
Document is written by the offender without authority drawer of the check to deposit the amount
to do so. necessary to cover his check within three (3)
4. That the document so written Creates a liablity of or days from receipt of notice from the bank
causes damage to the offended party or any third and/or the payee or holder that said check has
person. been dishonored for lack or insufficiency of
funds shall be prima facie evidence of deceit
Presupposes a signature in a blank document on a document. constituting false pretense or fraudulent act.
The document must be delivered to the offender by the e. By obtaining any food, refreshment or
offended party. accommodation at a hotel, inn, restaurant,
• If the document was stolen by the offender, the crime boarding house, lodging house, or apartment
committed is falsification and not estafa. house and the like without paying therefore,
with intent to defraud the proprietor or
Suppose A was keeping blank papers with the signature of B. C manager thereof, or by obtaining a credit at a
stole one of them and wrote a document above the signature, hotel, inn, restaurant, boarding house, lodging
creating liability against B. What crime was committed? house, or apartment house by the use of any
false pretense, or by abandoning or
It is falsification, because C made it appear that B participated surreptiously removing any part of his baggae
in a transaction when in truth and in fact he did not so from a hotel, inn, restaurant, boarding house,
participate, or attributed to B, a statement other than that made loding house, or apartment house after
by him. This is not estafa, because C, not having been entrusted obtaining credit, food, refreshment, or
with the signature in blank could not have acted with abuse of accommodation thereif without paying for his
confidence, which is element in this form of estafa. food, refreshment, or accommodation.
Gravamen: Estafa through Falsification

Reliance by the offended party on the false pretense, fraudulent Estafa through falsification can be committed only if the
act, or fraudulent means, which was the very cause or only falsification does not require the element of damage. It is
motive that induced him to part with his money or property, important to note that estafa through false pretense made in
thereby resulting to damage or prejudice on the part of the writing is only a simple crime of estafa not a complex crime of
offender party. estafa through falsification.
Example: You convince the buyer that you are the owner of a Article 315, Paragraph 2 (b)
parcel of land for P2M, buyer was convinced. The buyer belied ESTAFA BY FALSE PRETENSES OR FRAUDULENT ACTS
on your pretenses that you were the owner, and he was damage
for the amount of P2M, this is estafa by means of false By altering the quality, fineness, or weight of anything pertaining
pretenses. The key here is that the victim would have not parted to his art or business.
with his money without the false pretense.
Estafa by Altering Pertaining to Art or Business
For the offended party to rely on such false pretense, fraudulent The estafa by altering the quality, fineness, or weight of
means, it must have been performed prior to or simultaneous anything pertaining to his art or business may be illustrated in
with the commission of fraud. the case of a jeweler who, for instance, defrauded a person who
had delivered to him a diamond and piece of gold to be made
If the offended party already parted with his money or property into a rig by changing the stone with a lower quality.
before the false pretense, fraudulent act, or fraudulent means
is performed, there is no estafa. Altering the quality, fineness or weight of anything pertaining
• If it happened after, it is no longer the primary to his art of business. The jewelry owner swaps the stone of
consideration for the act. inferior quality with the same luminance and appearance
(diamond ring analogy)
Article 315, Paragraph 2 (a)
ESTAFA BY FALSE PRETENSES OR FRAUDULENT ACTS NOTE: Fraudulent manipulation of scale is punished under the
Consumer Act of the Philippines (RA 7394).
By using fictitious name, or falsely pretending to possess power,
influence, qualifications, property, credit, agency, business, or Article 315, Paragraph 2 (c)
imaginary transactions, or by means of other similar deceits. ESTAFA BY FALSE PRETENSES OR FRAUDULENT ACTS
Three Ways of Committing Estafa under Paragraph 2(a) By pretending to have bribed any Government employee,
• By using fictitious name, or without prejudice to the action for calumny which the offended
o “Owner” of a pawnshop ticket party may deem proper to bring against the offender shall be
• By falsely pretending to possess power, influence, punished by the maximum period of the penalty.
qualifications, property, credit, agency, business, or
imaginary transaction, or Estafa by Pretending to Have Given Bribe
o Faking as a lawyer This is committed by any person who would ask for money from
o Faked to as to have owned property another for the alleged purpose of bribing a government
o Falsely pretending as an agent to buy the employee, when in truth and in fact the offender intended to
property convert the money to his own personal use and benefit.
• By means of other similar deceits
Thus, a person who obtains money from another by falsely
The pretense must be false at the time it was made; if it pretending that with that money he will bribe the doctor in
became false only after the commission of the fraud, there is no charge of the physical examination of the offended party so as
false pretense to speak of. to declare him unfit for compulsory service in the army, is guilty
• If the presentation was true at the time, but later it for estafa under this paragraph.
became false, there is no estafa;
• The false pretense need not be lawful; pretending as But, If you have successfully bribed then you are liable for
an influential person to authorities which consists Corruption of Public Officers, it must remain a pretense. Thus,
graft and corrupt practices. if he really gives the money to the doctor, the crime is
• Regardless lawful or unlawful, as long as it has been corruption of public officer.
relied upon by the offended party.
NOTE: That in addition to the crime of estafa the provision
Deceit not covered by any of those specifically mentioned but states that “without prejudice to the action for calumny which
similar to any of them may give rise to estafa under that phrase the offender party may deem proper to bring against the
of “by means of other similar deceits.” The pretense must be offender.” The offender may still be liable for the crime of
false and be supported by evidence to show that pretense is defamation which the government employee allegedly bribed
indeed false. may deem proper to bring against the offender.
Article 315, Paragraph 2 (d) • Rediscounting – you give the check and gives a
ESTAFA BY FALSE PRETENSES OR FRAUDULENT ACTS certain amount, the check is swapped with the cash
value, the offended party would have not released the
By postdating a check, or issuing a check in payment of an cash were it not for the check.
obligation when the offender had no funds in the bank, or his
funds deposited therein were not sufficient to cover the amount The check must have been issued for value in exchange for
of the check. The failure of the drawer of the check to deposit the
an actual value.
amount necessary to cover his check within three (3) days from
receipt of notice from the bank and/or the payee or holder that
said check has been dishonored for lack or insufficiency of funds Thus, when a check was issued in payment of a debt contracted
shall be prima facie evidence of deceit constituting false pretense prior to such issuance or to a pre-existing obligation, there is
or fraudulent act. no estafa, even if there is no fund in the bank to cover the
amount of the check. The reason for the rule is that deceit, to
constitute estafa, be efficient cause of the defraudation as
Estafa by Postdating a Check or
such should be either prior to or simultaneously with the fraud.
Issuing a Check in Payment of an Obligation
• When check is issued in substitution of a promissory
The elements of the aforesaid provision are as follows:
note, it is in payment of pre-existing obligation.
1. That the offender:
• The accused must be able to obtain something from
a. postdated a check or
the offended party by means of the check he issues or
b. issued a check in payment of an obligation;
delivers.
2. That such postdating or issuing a check was done
when the offender:
PEOPLE v. ONG 204 SCRA 942
a. Had no funds in the banks, or
In this case, the accused was a depositor of the bank. He
b. Funds deposited therein were not sufficient
deposited certain amounts deposited by checks. Without
to cover the amount of the check.
waiting for the clearance of the check, he withdrew the said
amount from his account. The bank officers allowed him to do
Efficient Cause of Defraudation
so. In normal proceedings, a check must be cleared in order to
The issuance of the check must be efficient cause of the
be allowed to be withdrew. Without such, he was allowed to
defraudation. You convince another person to part with his
withdraw based on the deposit, this was allowed for some time.
money through the check.
• The owner would not have sold the car, were it not for
Until such time, the check was dishonored because the check
the check payment, the owner must rely on the check
was not supported by the sufficient funds. Thus Article 315 (2)
prior to on the consummation of obligation.
(d) was filed against him for the bank suffered prejudice.
The Check Issued Must be Genuine and Not Falsified
Issue: Whether or not there was defraudation by Dick Ong prior
The act of signing a check with a fictitious name and falsely
to or simultaneous with the act.
pretending that said check could be cashed at the bank, the
accused knowing that it could not be cashed, and on the
HELD: The view that by reason of the accused appellant's
strength of such false pretense the accused obtained from the
antecedent acts of issuing and depositing checks, and
offended party a certain amount in exchange for the worthless
withdrawing the amounts thereof before clearing by the
check, constitutes estafa by means of false pretense under 2(a)
drawee banks, which checks were later honored and paid by the
and not under paragraph 2(d).
drawee banks, he was able to gain the trust and confidence of
the Bank, such that the practice, albeit contrary to sound
If the check is falsified and the same is cashed with the bank, or
banking policy, was tolerated by the Bank.
exchanged for cash that crime committed is Estafa through
Falsification of a Commercial Document.
After thus having gained the trust and confidence of the Bank,
he issued and deposited the subject checks, the amounts of
The Check Must be Postdated or Issued in Payment of an
which he later withdrew, fully aware that he had no sufficient
Obligation Contract at the Time of Issuance and Delivery
funds to cover the amounts of said checks in the drawee banks.
The meaning given to the phrase “in payment of an obligation”
is that the check should not be posted or issued in payment of
This view is not supported by the facts of this case. Rather, the
pre-existing obligation.
evidence for the prosecution proved that the Bank on its own
accorded him a drawn against uncollected deposit (DAUD)
It does not cover does not contemplate the issuance of a check
privilege without need of any pretensions on his part.
in payment of a pre-existing obligation.
• One-week debt; he issued check in favor of the
There was no need for him to make pretension, the bank
creditor, when debt was given the issuance of the
automatically accepts and releases the amount, he was able
check was not considered by that time. The payment
to obtain the funds equivalent to the amount of the check
by check was not the primary way.
without need of pretension of this part.
• It was not made prior to or simultaneous
Where the depositor is an important client, the Bank relaxed its NOTE: The term three days refers to three calendar days.
rule and internal policy against uncleared checks and
uncollected deposits and allowed such depositor to withdraw Despite the lapse of notice after three days and fails to deposit
against his uncleared checks and uncollected deposits. the amount necessary. If you have no other way to prove other
Admittedly, the accused-appellant was one of the important way to prove deceit, you provide the notice, then failure to
depositors of the Bank. deposit within three days shall give rise to presumption.
• The primary consideration was because he was an • Three calendar days from receipt of the notice of
important consideration, therefore there is no estafa dishonor on your account to fund the checks.
under Article 315 (2) (d).
Failure to deposit the amount within the period of three
ILAGAN v. PEOPLE 2005 calendar days will only give rise to presumption of credit.
Accused was charged with estafa for indorsing postdated • In the absence thereof, direct evidence may be
checks which were dishonored on maturity. presented to prove that at the time of the issuance of
the check, the accused knew of the insufficiency of
Ground for acquittal: SC noted that the accused and the payee the funds.
had been priorly engaged for four years in rediscounting
transactions. Hence, it would have been unnecessary for the Q. Is the fact that the account has already been closed sufficient
accused to assure the payee that the checks would be evidence to directly show knowledge on the part of the accused
sufficiently funded on maturity to convince her to change them of the insufficiency of funds?
with cash.
Otherwise stated, is it still necessary to give notice of dishonor
PEOPLE v. CARDENAS GR 178064 despite evidence that the account was already closed at the
In the case at bar, it is gathered that during her transactions time of the issuance of the dishonored check?
since 1991 with Nenit, appellant usually issued postdated
checks after jewelry was turned over to her and that in fact Suppose upon issuance of check, the account is already closed,
some of the postdated checks previously issued were and considered inexistent, despite such you still issued a check,
dishonored but were not made subject of criminal complaints. in this second scenario the question arises, this is evidence of
the intent to defraud.
Appellant did not thus have to assure Nenit when she issued on • The fact of a closed account at the time of issuance of
November 15, 1994 Check No. 001260A postdated December check is considered as evidence of intent to defraud in
30, 1994 that it would be funded on maturity to convince her itself. It is by itself the proof of deceit. Thus a notice
to part off with the jewelry. In other words, the issuance of the of dishonor would be a surplusage and useless.
check was not the means to obtain the jewelry. Appellant did
not thus employ fraud. Ergo she did not commit estafa. LOPEZ v. PEOPLE GR 166810
• The issuance of the check was not the sole means of The absence of proof as to receipt of the written notice of
the defraudation for her to depart from money. dishonor notwithstanding, the evidence shows that petitioner
had actual notice of the dishonor of the check because he was
PEOPLE v. LILIUS (1933) verbally notified by the respondent and notice whether written
Inasmuch as the other three checks involved in this case were or verbal was a surplusage and totally unnecessary considering
issued in payment of a debt, even granting that the appellant that almost two (2) months before the issuance of the check,
issued them without sufficient funds to cover the amount petitioners current account was already closed.
thereof, and furthermore, that he acted fraudulently in doing
so, such act does not constitute the offense of estafa, as his Under these circumstances, the notice of dishonor would have
debt, for the payment of which said checks were issued, had served no useful purpose as no deposit could be made in a
been contracted prior to such issuance. closed bank account.
Hence, the deceit, if there was any in the issuance of the Since petitioner’s bank account was already closed even before
questioned checks, did not precede the defraudation. On the the issuance of the subject check, he had no right to expect or
other hand, the record does not show that the debt had been require the drawee bank to honor his check. By the aforequoted
contracted through fraud. provision of law, petitioner is not entitled to be given a notice
of dishonor.
Prima Facie Evidence of Deceit
The failure of the drawer of the check to deposit the amount Q. What if the check is dishonored due to uncollected deposits?
necessary to cover his check;
• Within three days from receipt of notice from the bank For example, then you are waiting for the clearance of the check
and/or payee or holder that has been deposited for the value (uncollected deposit)
• That said check has been dishonored for lack of subject for clearance. You issue a check, believing at that time
insufficiency of funds shall be prima facie evidence of the deposits would have already “reflected” on your account.
deceit constituting false pretense or fraudulent act. What if it did not reflect?
2. Having sufficient funds in or credit with the drawee

DY v. PEOPLE 158312 bank when he makes or draws and issues a check, by
There is no prima facie evidence of deceit in this instance failing to keep sufficient funds or to maintain a credit
because the check was not dishonored for lack or insufficiency to cover the full amount of the check if presenting
of funds. within a period of 90 days from the date appearing
thereon, for which reason it is dishonored by the bank.
Uncollected deposits are not the same as insufficient funds. The o By the lapse of time, the account dwindled,
prima facie presumption of deceit arises only when a check has despite at time of issuance it was sufficient,
been dishonored for lack or insufficiency of funds. Notably, the this is not a defense, precisely because of the
law speaks of insufficiency of funds but not of uncollected second violation.
deposits. o You have to maintain a sufficient fund from
the date appearing from the check.
Clearly, the estafa punished under Article 315, paragraph 2(d)
of the Revised Penal Code is committed when a check is ELEMENTS OF OFFENSE UNDER SECTION 1, PAR. 1
dishonored for being drawn against insufficient funds or closed 1. That a person makes or draws and Issues any check;
account, and not against uncollected deposit. 2. That the check is made or drawn and issued to Apply
on account or for value.
Corollarily, the issuer of the check is not liable for estafa if the 3. That the person who makes or draws and issues the
remaining balance and the uncollected deposit, which was duly check Knows at the time of issue that he does not have
collected, could satisfy the amount of the check when sufficient funds in or credit with the drawee bank for
presented for payment. the payment of such check in full upon presentment.
4. That the check is subsequently Dishonored by the
- Compare Article 315(2)(d) from BP 22 - drawee bank for insufficiency of funds or credit, or
would have been dishonored for the same reason, had
not the drawer, without any valid reason ordered the
BATAS PAMBANSA BLG. 22 bank to stop payment.
ELEMENTS OF OFFENSE UNDER SECTION 1, PAR. 2

SECTION 1. Checks without sufficient funds. – Any person 1. That a person has Sufficient funds in or credit with the
who makes or draws and issues any check to apply on
drawee bank when he makes or draws and issues a
account or for value, knowing at the time of issue that he does
not have sufficient funds in or credit with the drawee bank check.
for the payment of such check in full upon its present, which 2. That he Fails to keep sufficient funds or to Maintain a
check is subsequently dishonored by the drawee bank for credit to cover the full amount of the check if
insufficiency of funds or credit or would have been presented within 90 days from the date appearing
dishonored for the same reason had not the drawer, without thereon.
any valid reason, ordered the bank to stop payment, shall be 3. That the check is Dishonored by the drawee bank.
punished by imprisonment of not less than thirty (30) days Common Element
but not more than one (1) year or by a fine not less but not
The check is subsequently dishonored by the drawee bank for
more than double amount the amount of the check which fine
shall in no case exceed Two Hundred Thousand Pesos, or insufficiency of funds or credit or would have been dishonored
both such fine and imprisonment at the discretion of the for the same reason had not the drawer, without any valid
court. reason, ordered the bank to stop payment.
The same penalty shall be imposed upon any person who, Gravamen is the Issuance of a Worthless Check
having sufficient funds in or credit with the drawee bank Issuance of a worthless check. It is immaterial if it was for a pre-
when he makes or draws and issues a check, shall fail to keep
existing obligation, does not make a distinction as to whether
sufficient funds or to maintain a credit to cover the full
amount of the check if presented within a period of ninety the worthless check Is issued in payment of an obligation or to
(90) days from the date appearing thereon, for which reason merely guarantee an obligation. It applies if the check has been
it is dishonored by the drawee bank. issued on account or for value.
• Unlike in estafa it must be for value.
Where the check is drawn by a corporation, company or
entity, the person or persons who actually signed the check BP 22 requires that the person who made or drew and issued
in behalf of such drawer shall be liable under this Act. the check knew at the time of the issue that he did not have
sufficient funds in or credit with the drawee bank for payment
Two Ways of Violating BP 22 of such check in full upon its presentment. If he had sufficient
1. By making or drawing and issuing any check to apply funds at time of issue, but later he withdrew all his funds or lost
on account or for value knowing at the time of issue credit, he can still be liable if the check is subsequently been
that he does not have sufficient funds in credit with dishonored because second paragraph can apply, if he fails to
the drawee bank for the payment of such check upon keep sufficient funds to maintain a credit to cover the full
its full presentment. amount of the check.
Q. What is the effect of ordering the bank to stop payment of SECTION 2. Evidence of knowledge of sufficient funds. –
the check without any valid reason upon the liability of the The making, drawing and issuance of a check payment of
drawer or maker who issued the check? which is refused by the drawee because of insufficient funds
in or credit with such bank, when presented within ninety
If the drawer or maker had in fact no sufficient funds or credit, (90) days from the date of the check, shall be prima facie
and the check would have been dishonored for that reason had evidence of knowledge of such insufficiency of funds or credit
unless such maker or drawer pays the holder thereof the
not the drawer or maker ordered the bank to stop payment, he
amount due thereon, or makes arrangements for payment in
is liable. full by the drawee of such check within five (5) banking days
after receiving notice that such check has not been paid by the
It is no defense then that the drawer of the check ordered the drawee.
bank to stop payment, if he had no sufficient funds or credit
and the check would have been dishonored had he not made
Presumption of Knowledge of Insufficient Funds
the order. The stoppage must be without any valid reason.
It will be noted that BP 22 requires that the person who makes
or draws and issues a check must have knowledge at the time
Q. Suppose that the drawer had kept sufficient funds in the
of issue that he does not have sufficient funds in credit with the
drawee bank for 100 days from the date appearing thereon to
drawee bank.
cover the check he had issued. The next day he withdrew all the
funds. When the check was presented later on that day to the
Section 2 establishes prima facie evidence of knowledge of such
drawee bank, it was dishonored. Is the drawer liable?
insufficiency of funds or credit.
No. The check was not presented within a period of 90 days

The making, drawing and issuance of a check, payment of which
from the date appearing thereon.
is refused by the drawee because of insufficient funds in or
credit with such bank, is prima facie evidence of knowledge of
NOTE: Lack of written notice of dishonor is fatal, without such
insufficiency of funds or credit, when the check is presented
the presumption of knowledge of insufficiency of funds cannot
within 90 days from the date of the check.
arise when there is no receipt of notice of dishonor.
• Notice of dishonor to corporation is not notice to
In People v. Laggui, it was held that the maker’s knowledge of
officer who issued the check (Lao v. CA, 1997).
the insufficiency of his funds is legally presumed from the
dishonor of his check for insufficiency of funds.
Rule of Preference in Imposing Penalties for BP 22
In the decision of the court in the case of Vaca v. CA, the court
Exceptions:
modified the sentence imposed for violation of BP 22 deleting
1. When the check is presented after 90 days from the
the penalty for imprisonment and imposing only the penalty of
date thereon;
fine in an amount double of the amount of the check. The court
2. When the maker or drawer either:
said in that case that:
a. pays the holder thereof the amount due
thereon or
“Petitioners are first time offenders. They are Filipino entrepreneurs
who presumably contribute to the national economy. Apparently, they
b. makes arrangements for payment in full by
brought this appeal, believing in all good faith, although mistakenly, the drawee of such check
that they had not committed a violation of BP 22. Otherwise, they could within five banking days after receiving notice
simply have accepted the judgment of the trial court and applied for that such check has not been paid by the drawee.
probation to evade prison term. It would best serve the ends of criminal
justice if in fixing the penalty within the ranger of discretion allowed in Difference from Estafa under Article 315(2)(d)
Section 1, par. 1, the same philosophy underlying the ISL is observed, In estafa it is three calendar days, in BP 22 it is five banking days,
namely, that redeeming valuable human material and preventing
in estafa you must fund the check it includes Saturday or
unnecessary deprivation of person liberty and economic usefulness
with due regard to the protection of the social order. In this case, the
Sunday or Holidays; BP 22 does not include non-banking days.
court believes that a fine in an amount equal to double the amount of
the check involved is an appropriate penalty to imposed on each of the Presumption Does Not Arise When
petitioners. • The check is presented after 90 days from the date of
the check;
On SC 12-2000, the court stated that “All courts and judges • The maker or drawer pays the holder thereof the
should henceforth take note of the foregoing policy of the amount due thereof within five banking days after
Supreme Court on the matter of the imposition of penalties for receiving notice of dishonor;
violation of BP 22.” • The maker or drawer makes arrangements for the
payment in full by the drawee of such check within five
Clarified in SC 13-2001, the SC 12-2000 did not remove banking days after receiving notice of dishonor;
imprisonment as an alternative penalty, but it sought to provide • When notice of dishonor has not been received by the
a rule for preference in the application of the penalty. The maker or drawer of the check.
determination of whether the circumstances warrant that
imposition of fine alone rests solely upon the judge.
PEOPLE v. OJEDA June 3, 2004 When the checks were co-signed by petitioner, they were
The checks were used for payment for fabrics or textiles of 22 signed in advance and in blank, delivered to the Head of
post-dated checks all the checks were dishonored. The Operations, Mr. Teodulo Asprec, who subsequently filled in the
complainant Ojeda instead made payment in kinds in the form names of the payee, the amounts and the corresponding dates
of finished garment in amount of P50K. One her defenses was of maturity. After Mr. Asprec signed the checks, they were
that she did not receive a notice of dishonor, the notices were delivered to private complainant Palijo.
allegedly sent by registered mail.
Was not in any way involved in the completion, and the
Was whether there was sufficient evidence to prove that the subsequent delivery of the check to private complainant Palijo.
accused received notices of dishonor received by the accused. At the time petitioner signed the checks, she had no knowledge
• What you should to prove that the accused actually of the sufficiency or insufficiency of the funds of the corporate
received the notices of dishonor. account.
The accused denied receiving the notices of the dishonor. The It was not within her powers, duties or responsibilities to
prosecution has to show, they merely presented the fact of monitor and assess the balances against the issuance. It was
notice were just sent but not receipt. treasurer had the access to the amount.
Q. What is then the proof required to show that the accused Palijo sent notice of dishonor to the head office, Lim Lao did
receipt the notice of dishonor? not receive the notice of dishonor. The treasurer, In her
testimony, she justified her omission by saying that the checks
The prosecution claimed that the demand letter was sent by were actually the responsibility of the main office and that, at
registered mail. To prove this, it presented a copy of the that time of panic withdrawals and massive pre-termination of
demand letter as well as the registry return receipt bearing a clients' investments, it was futile to inform the Binondo office
signature which was, however, not even authenticated or since the main office was strapped for cash and in deep
identified. A registry receipt alone is insufficient as proof of financial distress.
mailing. Receipts for registered letters and return receipts do
not prove themselves; they must be properly authenticated in Elements of BP 22
order to serve as proof of receipt of the letters. This Court listed the elements of the offense penalized under
B.P. 22, as follows:
Q. How to authenticate registry return cards? 1) the making, drawing and issuance of any check to
For notice by mail, it must appear that the same was served on apply to account or for value;
the addressee or a duly authorized agent of the addressee. In 2) the knowledge of the maker, drawer or issuer that at
fact, the registry return receipt itself provides that registered the time of issue he does not have sufficient funds in
article must not be delivered to anyone but the addressee, or or credit with the drawee bank for the payment of
upon the addressees written order, in which case the authorized such check in full upon its presentment; and
agent must write the addressees name on the proper space and 3) subsequent dishonor of the check by the drawee bank
then affix legibly his own signature below it (Ting v. CA, 2001). for insufficiency of funds or credit or dishonor for the
• The addressee who should sign or authorized same reason had not the drawer, without any valid
representative (in writing) to receive and sign the cause, ordered the bank to stop payment.
return cards.
Knowledge of Insufficiency of Funds
Criminal liability is personal such that the accused must be Knowledge of insufficiency of funds or credit in the drawee
personally notified to give rise to the presumption of bank for the payment of a check upon its presentment is an
knowledge. essential element of the offense.
LIM LAO v. COURT OF APPEALS There is a prima facie presumption of the existence of this
Lim Lao was authorized to sign checks, she signed such checks element from the fact of drawing, issuing or making a check,
as Junior Officer of the corporation, for and in behalf. During the payment of which was subsequently refused for
the business, she met the complainant Fr. Palijo. All checks were insufficiency of funds. It is important to stress, however, that
issued and signed by Lim Lao, when complainant presented this is not a conclusive presumption that forecloses or
these were dishonored. He made demands for payment. precludes the presentation of evidence to the contrary.
• In regular course of duties, she was required to co-
sign checks, mostly in the field, it was normal In the present case, the fact alone that petitioner was a
procedure for her to sign check in blanks, it was signatory to the checks that were subsequently dishonored
likewise the other co-signer who decide. merely engenders the prima facie presumption that she knew
• Petitioner had no knowledge of the insufficiency of of the insufficiency of funds, but it does not render her
funds of the accounts, for the responsibility was due automatically guilty under B.P. 22.
to the Treasury Department.
The prosecution has a duty to prove all the elements of the Q. May an employee who, as part of her regular duties, signs
crime, including the acts that give rise to the prima facie blank corporate checks — with the name of the payee and the
presumption; petitioner, on the other hand, has a right to rebut amount drawn to be filled later by another signatory — and,
the prima facie presumption. Therefore, if such knowledge of therefore, does so without actual knowledge of whether such
insufficiency of funds is proven to be actually absent or checks are funded, be held criminally liable for violation of Batas
nonexistent, the accused should not be held liable for the Pambansa Bilang 22 (B.P. 22), when checks so signed are
offense defined under the first paragraph of Section 1 of B.P. dishonored due to insufficiency of funds?
22. Although the offense charged is a malum prohibitum, the
prosecution is not thereby excused from its responsibility of After a thorough review of the case at bar, the Court finds that
proving beyond reasonable doubt all the elements of the Petitioner Lina Lim Lao did not have actual knowledge of the
offense, one of which is knowledge of the insufficiency of funds. insufficiency of funds in the corporate accounts at the time she
affixed her signature to the checks involved in this case, at the
After a thorough review of the case at bar, the Court finds that time the same were issued, and even at the time the checks
Petitioner Lina Lim Lao did not have actual knowledge of the were subsequently dishonored by the drawee bank. The scope
insufficiency of funds in the corporate accounts at the time she of petitioner's duties and responsibilities did not encompass
affixed her signature to the checks involved in this case, at the the funding of the corporation's checks; her duties were limited
time the same were issued, and even at the time the checks to the marketing department of the Binondo branch.
were subsequently dishonored by the drawee bank.
Penalty under BP 22
The scope of petitioner's duties and responsibilities did not Imprisonment of not less than thirty days but not more than
encompass the funding of the corporation's checks; her duties one (1) year or by a fine of not less than but not more than
were limited to the marketing department of the Binondo double the amount of the check which fine shall in no case
branch. exceed Two Hundred Thousand Pesos, or both such fine and
imprisonment at the discretion of the court.
Furthermore, the Regional Trial Court itself found that, since
Petitioner Lina Lim Lao was often out in the field taking charge VACA v. COURT OF APPEALS GR 131714
of the marketing department of the Binondo branch, she signed Petitioners pray that, in the alternative, the penalty be modified
the checks in blank as to name of the payee and the amount to by deleting the sentence of imprisonment and, in lieu thereof a
be drawn, and without knowledge of the transaction for which fine in an increased amount be imposed on them. In support of
they were issued. their plea, they allege that they do not have any record of prior
• Her function was only to co-sign the check, she did conviction; that Eduardo Vaca is of advanced age (late 60s); and,
not have the opportunity, she did not have access to that they come from good families.
the information of the sufficiency of funds.
Petitioners claim that "with their family background and social
Notice of Dishonor standing there is no reason why they, will refuse to pay a due
There is another equally cogent reason for the acquittal of the and demandable debt of only P10,000.00. It is precisely because
accused. There can be no prima facie evidence of knowledge of of their founded belief that the subject obligation has been paid
insufficiency of funds in the instant case because no notice of that they refused to be intimidated by a criminal charge."
dishonor was actually sent to or received by the petitioner.
Q. What is the preference of the imposition of penalties as to
The notice of dishonor may be sent by the offended party or charge of BP 22?
the drawee bank. The trial court itself found absent a personal
notice of dishonor to Petitioner Lina Lim Lao by the drawee Petitioners are first-time offenders. They are Filipino
bank based on the unrebutted testimony of Ocampo "(t)hat the entrepreneurs who presumably contribute to the national
checks bounced when presented with the drawee bank but she economy. Apparently, they brought this appeal, believing in all
did not inform anymore the Binondo branch and Lina Lim Lao good faith, although mistakenly, that they had not committed
as there was no need to inform them as the corporation was in a violation of B.P. Blg. 22. Otherwise, they could simply have
distress." The Court of Appeals affirmed this factual finding. accepted the judgment of the trial court and applied for
Pursuant to prevailing jurisprudence, this finding is binding on probation to evade a prison term.
this Court.
It would best serve the ends of criminal justice if in fixing the
Indeed, this factual matter is borne by the records. The records penalty within the range of discretion allowed by §1, par. 1, the
show that the notice of dishonor was addressed to Premiere same philosophy underlying the Indeterminate Sentence Law is
Financing Corporation and sent to its main office in Cubao, observed, namely, that of redeeming valuable human material
Quezon City. Furthermore, the same had not been transmitted and preventing unnecessary deprivation of personal liberty and
to Premiere's Binondo Office where petitioner had been economic usefulness with due regard to the protection of the
holding office. Likewise no notice of dishonor from the social order.
offended party was actually sent to or received by Petitioner
Lao.
In this case we believe that a fine in an amount equal to double Otherwise stated prosecution for the same act is not prohibited.
the amount of the check involved is an appropriate penalty to What is forbidden is prosecution for the same offense. Hence,
impose on each of the petitioners. the mere filing of the two (2) sets of information does not itself
give rise to double jeopardy.
The circumstances of the accused in this case, would justify the
application of such principle, by imprisoning them it would Legally you can file for the same check for both estafa and BP
reduce valuable material for the society. The court may choose 22 precisely because:
to impose fine only rather than with imprisonment with the • Estafa are two separate and distinct offenses.
view of redeeming valuable human material and preventing • Section 5 of BP 22: Prosecution under this Act shall
unnecessary deprivation of personal liberty and economic be without prejudice to any liability for violation of any
usefulness with due regard to the protection of the social order. provision of the Revised Penal Code.
SECTION 5. Liability under the Revised Penal Code. – Note that deceit and damage are essential elements in Article
Prosecution under this Act shall be without prejudice to any 315(2)(d) of the RPC but are not required in BP 22.
liability for violation of any provision of the Revised Penal
Code. Under the latter law, mere issuance of a check that is
dishonored gives rise to the presumption of knowledge on the
Distinctions between Article 315(2)(d) and BP 22 part of the drawer that he issued the same without sufficient
funds and hence punishable which is not so under the Penal
Article 315(2)(d) BP 22
Code.
Circumstance Check issued Even if check
of Issuance concurrently and issued for pre-
of Check reciprocally in existing
payment of the obligation, liability Article 315, Paragraph 2 (e)
exchange or is incurred. Check ESTAFA BY FALSE PRETENSES OR FRAUDULENT ACTS
consideration is issued on
By obtaining any food, refreshment or accommodation at a
account or for
hotel, inn, restaurant, boarding house, lodging house, or
value
apartment house and the like without paying therefor, with
Existence of Damage to the Damage or deceit intent to defraud the proprietor or manager thereof, or by
Damage and offended and deceit is immaterial obtaining credit at hotel, inn, restaurant, boarding house, lodging
Deceit of the accused is house, or apartment house by the use of any false pretense, or
essential by abandoning or surreptitiously removing any part of his
Nature of the Crime against Crime against baggage from a hotel, inn, restaurant, boarding house, lodging
Crime property public interest house or apartment house after obtaining credit, food,
Period 3 calendar days from 5 banking days refreshment or accommodation therein without paying for his
food, refreshment or accommodation.
within Which notice of dishonor from notice of
to Make dishonor
Good the Three Ways of Committing Estafa under Paragraph 2(e)
Value of the There are three ways of committing estafa under this provision:
Check 1. By obtaining food, refreshment, or accommodation at
Criminal Malum in se Malum prohibitum a hotel, inn, restaurant, boarding house, lodging
Intent house or apartment house, without paying therefor,
with intent to defraud the proprietor or manager
thereof;
Q. Can you prosecute the accused for both estafa and BP 22 on
2. By obtaining credit at any of said establishments by
the fact of the dishonor of one and thee same check?
the use of any false pretense; or
3. By abandoning or surreptitiously removing any part of
NIERRAS v. DACUYCUY 181 SCRA 1
his baggage from any of said establishments after
There is no double jeopardy. While the filing of the two sets of
obtaining credit, food, refreshment or
Information under the provisions of Batas Pambansa Bilang 22
accommodation therein, without paying therefor.
and under the provisions of the Revised Penal Code, as
amended, on estafa, may refer to identical acts committed by
People v. Amala (1952):
petitioner, the prosecution thereof cannot be limited to one
The accused stayed as a paying guest at the hotel, known as
offense, because a single criminal act may give rise to a
Town House, located along Dewey Boulevard, Manila, from
multiplicity of offenses and where there is variance or
September 29 to November 16, 1949.
differences between the elements of an offense in one law and
another law as in the case at bar there will be no double
He surreptitiously left the hotel, leaving his worthless baggage
jeopardy because what the rule on double jeopardy prohibits
in the hotel and without paying his account. He was convicted
refers to identity of elements in the two (2) offenses.
of estafa.
Article 315, Paragraph 3 (c)

Third Form of Estafa ESTAFA TRHOUGH FRAUDULENT MEANS
ESTAFA THROUGH FRAUDULENT MEANS
By removing, concealing or destroying, in whole or in part, any
ARTICLE 315, PARAGRAPH 2 court record, office files, documents or any other papers.
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to Estafa by Removing, Concealing, or Destroying Documents
sign any document; 1. That there be Court records, office files, documents or
(b) By resorting to some fraudulent practice to any other papers;
insure success in a gambling game. 2. That the offender Removed, concealed or destroyed,
(c) By removing, concealing, destroying, in whole in whole or in part any of them;
or in part, any court record, office files, 3. That the offender has Intent to defraud another.
document or any other papers.
If there is no Intent to Defraud, Only Malicious Mischief
Article 315, Paragraph 3 (a) It must be coupled with intent to defraud, like burning a
ESTAFA THROUGH FRAUDULENT MEANS promissory note to deprive of evidence, but if you destroy for
the sake for destroying them, this is malicious mischief not
By inducing another, by means of deceit, to sign any document. estafa.
Estafa by Inducing Another to Sign any Document NOTE: Article 226 on Infidelity in the Custody of Documents is
1. That the offender Induced the party to sign document; also punishable of the same manner as Article 315(3)(c),
2. That Deceit be employed to make him sign the however, it differs from such that:
document; 1. It requires that the offender is a public officer
3. That the offended party Personally signed the entrusted with the custody of the document;
document; 2. There is no intent to defraud.
4. That Prejudice be caused.
NOTE: The crime of estafa is not obliterated by acceptance of
There Must be Inducement and Deceit promissory note. The accused cannot be convicted of estafa
The offender must induce the offended party to sign the with abuse of confidence under an information alleging estafa
document. If the offended party is willing and ready from the by means of deceit.
beginning to sign the document and there is deceit as to the
character of the document because the contents are different, OTHER FORMS OF SWINDLING
the crime is not estafa, it is falsification, same applies when the
alteration came after. ARTICLE 316. Other forms of swindling. – The penalty of
arresto mayor in its minimum and medium period and a fine
Article 315, Paragraph 3 (b) of not less than the value of the damage caused and not more
ESTAFA THROUGH FRAUDULENT MEANS than three times such value, shall be imposed upon:
1. Any person who, pretending to be owner of any real
By resorting to some fraudulent practice to insure success in a property, shall convey, sell, encumber or mortgage
gambling game. the same.
2. Any person, who, knowing that real property is
encumbered, shall dispose of the same, although
Estafa Insuring Gambling Game Success through Fraud such encumbrance be not recorded.
Whether the consideration was unlawful, and you take 3. The owner of any personal property who shall
advantage of ignorance. If you change or replace the gaff of the wrongfully take it from its lawful possessor, to the
cock with non-fatal weapon therefore you are resorting to this prejudice of the latter or any third person.
4. Any person who, to the prejudice of another, shall
act. The rule in Civil Law that no action can be filed on an
execute any fictitious contract.
immoral or illegal contract has no application in the 5. Any person who shall accept any compensation
prosecution for estafa, even if the offended party consented to given him under the belief that it was in payment of
the fraudulent scheme. services rendered or labor performed by him, when
in fact he did not actually perform such services or
US v. Ner: Some moments before the cockfight, the accused labor.
removed the gaff from one of the gamecocks and replaced it in 6. Any person who, while being a surety in a bond
an entirely different manner from that in which it was before, given in a criminal or civil action, without express
authority from the court or before the cancellation
without the knowledge and consent of its owner.
of his bond or before being relieved from the
obligation contracted by him, shall sell, mortgage,
In the manner the gamecock was fixed, it could not inflict or, in any other manner, encumber the real property
mortal wounds on and kill its opponent. As a result, the owner or properties with which he guaranteed the
lost his best of P100.00. This is a form of estafa. fulfillment of such obligation.
1.
By conveying, selling, encumbering, or mortgaging any 1. the taking must be in the context in employing false
real property, pretending to be the owner of the same, pretense, of misrepresentation in taking the property.
2. The possessor must be a lawful possessor in the
ELEMENTS capacity of pledgee, depository or a lessee, or bailee.
1. That the thing be Immovable, such as parcel of land Possession must be expressly entrusted.
or a building;
2. That the offender who is not the owner of said The prejudice need not be incurred by the actual possessor, it
property should Represent that he is the owner; may be incurred by the lawful possessor of the third person.
3. That the offender should have executed an act of
Ownership (selling, leasing, encumbering, etc.) 4.
4. That the act be made to the Prejudice to the owner or By executing any fictitious contract to the
a third person. prejudice of another.
Difference from 315(2)(a) The crime of estafa by executing any fictitious contract to the
The real property must be existing, this only covers only real prejudice of another may be illustrated in the case of a person
properties. Article 315(2)(a) covers inexistent real property and who simulates a conveyance of his property to another, for the
personal property. The offender must aslo an act of ownership. purpose of defrauding his creditors.
In (2)(a) there is no need to act as ownership, mere pointing is
sufficient. Here you must execute a deed or sale. (4) intent to Ex. Simulated transfer in fraud of creditors.
defraud is sufficient, here there is actual damage caused.
5.
2. By accepting any compensation for services not rendered
By disposing of real property as free from encumbrance, or for labor not performed.
although such encumbrance be not recorded.
The crime in this paragraph consists in accepting any
ELEMENTS compensation given the accused who did not render the service
1. That the thing disposed of be Real property; or perform the labor for which payment was made. But this kind
2. That the offender Knew that the real property was of estafa requires fraud as an important element. If there is no
encumbered, whether the encumbrance was recorded fraud, it becomes solutio indebiti.
or not;
3. That there be Express representation by the offender The receipt of the compensation must be also made in the
that the real property is free from encumbrance; context of defraudation or misrepresentation, you expressly
4. That the act of disposing of the real property be made stated that you did the services, the payor made believing that
to the Damage of another. you made such acts. (e.g. billing appearance fees
misrepresented to the client and not actually rendering the
Despite existence of such encumbrance, offender services made).
misrepresents to a buyer that the property is free from
encumbrance the act is the express misrepresentation, mere But if only mistake in payment, merely solutio indebiti, the
silence of omission is not enough, there must be express liability is merely civil liability. If not returning the money it is
misrepresentation, were it not for such, the offended party considered estafa under 315(1)(b) by converting it to your
would not have entered the contract. personal gain in Saddul v. CA.
The encumbrance must be legally existing, appear in a public 6.

document and registered, if encumbrance is void there is no By selling, mortgaging or encumbering real property or
violation of 316(2). properties with which the offender guaranteed the
fulfillment of his obligation as surety.
3.
By wrongfully taking by the owner his personal property ELEMENTS:
from its lawful possessor. 1. That the offender is a Surety in a bond given in a
criminal or civil action;
ELEMENTS: 2. That he Guaranteed the fulfillment of such obligation
1. That the offender is the Owner of personal property; with his real property or properties;
2. That said personal property is in the Lawful possession 3. That he Sells, mortgages, or in any other manner
of another; encumbers said real property.
3. That the offender Wrongfully takes it from its lawful 4. That such sale, mortgage or encumbrance is made:
possessor; a. Without express authority from the court; or
4. That Prejudice is thereby caused to the possessor or b. Before being relieved from the obligation
third person. contracted by him.
Difference from Theft
In criminal cases like bail bond, it is not required it be in cash, it REMO v. SOJ (2016) GR 192925
can be in property, the surety assures presence and it There is no doubt that petitioners met the first and second
undertakes to ensure that you are physically brought to the standards under Galvez: petitioners are more than five (5) in
court. Like in attachment cases, there are also attachment number and they, as its directors, had management of BATELEC
bonds or injunction bond, in the event deemed unmeritorious. II—an electric cooperative. What is lacking on the part of the
• He must ask for court approval for termination bond. petitioners is the third standard. Petitioners do not constitute a
syndicate under PD No. 1689, as they never used BATELEC II as
a means to defraud its members.
PRESIDENTIAL DECREE 1689
To satisfy the third standard, it must be established that the
SYNDICATED ESTAFA
purported swindlers used the very association they formed or
managed to defraud its members.
ELEMENTS OF SYNDICATED ESTAFA
1. That Estafa or other forms of swindling as defined in
Since the association contemplated by PD No. 1689 must be
Articles 315 and 316 of the RPC is committed;
one that "solicit[s] fund from the general public," it follows that
2. That estafa or swindling is committed by a syndicate
the fraud committed through such association must pertain to
of Five or more persons;
its receipt of contribution or solicitation from its stockholders,
3. That defraudation results in the Misappropriation of
members or the public. Such kind of fraud is evidently missing
the money contributed by stockholders, or members
in the case at bench:
of rural banks, cooperatives, samahang nayons, or
farmer’s associations or of funds solicited by
• How do you consider these corporations as vehicles in
corporations/associations from the general public.
the obtaining of funds from the general public, where
o Mentioned corporations or associations
does the deceit come in?
must be used as the vehicle or means to
• The deceit must come in at the time of the collection
commit estafa.
of the funds from the general public, such that the
latter would not have given.
Syndicated Estafa
Collecting from general public, like investment scam schemes
Such kind of fraud is evidently missing in this case.
with a promise, at the start the obligation was fulfilled, after
1. It is undisputed that the contributions of the members
certain number of investors, the offender runs away. Using
of BATELEC II were paid to the latter not out of any
association as vehicles. You take advantage of the incredulity of
fraudulent act, transaction or scheme. As admitted by
the public. Pyramiding scheme is another example.
Manalo et al., the "contributions" of the members of
BATELEC II comprise of their payments for the
As to last element (b); the bank may be used as a vehicle for it
electricity being supplied by the cooperative. In other
collects deposits from the general public, the money to the
words, the contributions of the members of BATELEC
bank are considered as loan. A bank may also be used as a
II were received by the latter through legitimate
vehicle, but it will not apply when the association is the victim
transactions. There are actual services received there
himself or not the owners or employees of the association.
is no defraudation.
• It must be used as a vehicle; the offenders must be the
owners or the employers.
2. As BATELEC II received the contributions of its
members via legitimate transactions, it cannot be said
PD 1689 does not apply when the corporation or association is
that the petitioners had used the cooperative to
the victim itself of the defraudation, or when the offenders are
commit fraud on any of its members. Any alleged
not the owners or employees who the corporation or
misuse of such contributions committed by
association to perpetrate the crime.
petitioners after BATELEC II has already received them
through legal means would not constitute as
Standards by which a group of purported swindlers may be
defraudation committed through the cooperative but
considered as a syndicate under PD 1689:
would merely be an act of mismanagement
1. At least five in number;
committed against it. Clearly then, the third standard
2. They must have formed or managed a rural bank,
of Galvez was not met.
cooperative, "samahang nayon," farmer's association
or any other corporation or association that solicits
Penalties
funds from the general public;
1. LI – Death; if committed by a syndicate consisting of
3. They formed or managed such association with the
five or more persons formed with the intention of
intention of carrying out an unlawful or illegal act,
carrying out the defraudation;
transaction, enterprise or scheme., they used the very
2. RT – RP – if not committed by a syndicate as defined
association that they formed or managed as the
and if the amount of fraud exceeds P100,000.
means to defraud its own stockholders, members and
There must be the element of the association soliciting funds.
depositors
ARTICLE 317. Swindling a minor. – Any person who taking CHAPTER SEVEN
advantage of the inexperience or emotions or feelings of a CHATTEL MORTGAGE
minor, to his detriment, shall induce him to assume any
obligation or to give any release or execute a transfer of any ARTICLE 319. Removal, sale or pledge of mortgaged
property right in consideration of some loan of money, credit property. — The penalty or arresto mayor or a fine
or other personal property, whether the loan clearly appears amounting to twice the value of the property shall be imposed
in the document or is shown in any other form, shall suffer upon:
the penalty of arresto mayor and a fine of a sum ranging from 1. Any person who shall knowingly remove any
10 to 50 per cent of the value of the obligation contracted by personal property mortgaged under the Chattel
the minor. Mortgage Law to any province or city other than the
one in which it was located at the time of the
ELEMENTS: execution of the mortgage, without the written
1. That the offender Takes advantage of his inexperience consent of the mortgagee, or his executors,
administrators or assigns.
or emotions or feeling of a minor;
2. Any mortgagor who shall sell or pledge personal
2. That he Induces such minor; property already pledged, or any part thereof,
a. To Assume and obligation; under the terms of the Chattel Mortgage Law,
b. To Give or release property right; without the consent of the mortgagee written on the
c. To Execute a transfer of any property right; back of the mortgage and noted on the record
3. That the Consideration is: hereof in the office of the Register of Deeds of the
a. Some Loan of money; province where such property is located.
b. Credit
c. Other Personal property Chattel Mortgage Violation
4. That the transaction is to the Detriment of such minor; We discussed in Article 316 the act of disposing encumbered
real property or pretending to be the owner of real property,
NOTE: There is no need to use deceit upon the minor, need to this article now covers personal property.
show that the offender took advantage of the inexperience, • It involves personal property which essentially
emotions or feelings of a minor to his detriment. deprives the creditor to seek foreclosure of the
• Real property not included. mortgage or the action. No criminal liability when
there is written consent.
ARTICLE 318. Other deceits. – The penalty of arresto mayor
and a fine of not less than the amount of the damage caused ELEMENTS OF ARTICLE 319(1)
and not more than twice such amount shall be imposed upon 1. That personal property is Mortgaged under the
any person who shall defraud or damage another by any Chattel Mortgage Law;
other deceit not mentioned in the preceding articles of this 2. That the offender Knows that such property is so
Chapter. mortgaged;
3. That he Removes such mortgaged personal property
Any person who, for profit or gain, shall interpret dreams,
make forecasts, tell fortunes, or take advantage of the to any province or city other than the one in which it
credulity of the public in any other similar manner, shall was located at the time of the execution of mortgage;
suffer the penalty of arresto mayor or a fine not exceeding 4. That there is No written consent of the mortgagee or
Forty thousand pesos (₱40,000). his executors, administrators, or assigns to such
removal.
Other Deceits
1. By defrauding or damaging another by any other NOTE: There is no felonious intent when the transfer of
deceit not mentioned in the preceding articles. personal property is due to change of residence.
2. By interpreting dreams, by making forecasts, by telling
fortune, or by taking advantage of the credulity of the ELEMENTS OF ARTICLE 319(2)
public in any other similar manner for profit or gain. 1. That personal property is already Pledged under the
terms of the Chattel Mortgage Law.
VILLAFLOR v. CA 2. That the offender, who is the mortgagor of such
Ricardo Villaflor went to the house of complainant Locsin, to property, Sells or pledges the same or any part thereof
secure a loan of P1,000 offering his car as collateral. Both 3. That there is No consent of the mortgagee written on
agreed that the loan would be given on the condition that it the back of the mortgage an noted on the record
would be secured by a proper chattel mortgage. For failing to thereof in the office of the register of deeds.
pay the loan on time, complainant thought of taking appellant’s
car, but he found to his surprise that the car was repossessed Difference from Article 316
by Northern Motors for failing to pay the monthly installments • Both involves selling of mortgaged property
therefore. For failing to heed the demands to pay the loan, • 316 (2) real property; 319 personal property
Villaflor was charge for the crime of estafa by means of deceit. • In 316 sold as free; 319 mere consent.
• Why does this fall under Article 318(1)?
CHAPTER EIGHT On the other hand, acts committed under PD 1613 constituting
ARSON AND OTHER CRIMES INVOLVING Simple Arson are crime with a lesser degree of perversity and
DESTRUCTIONS viciousness that the law punishes with a lesser penalty. Thus,
Simple Arson contemplates crimes with less significant social,
Arson economic, political and national security implications than that
Arson is defined as the malicious destruction of property be fire. of Destructive Arson (People v. Soriano, 2003).
The corpus delicti is fire or intent to cause fire and the act having
been intentionally committed. Whether real or personal Destructive Arson
property is arson. Destructive arson was in PD 1613 but now under RA 7659.
When consummated? As amended by RA 7659_

Any charring on the part of the property whereby a portion is ARTICLE 320. Destructive Arson. – The penalty of reclusion
destroyed is sufficient. Not necessarily the whole property. perpetua to death shall be imposed upon any person who
shall burn:
1. One (1) or more buildings or edifices, consequent to
Burning of the bathroom, and caused the fire alarm, they
one single act of burning, or as a result of
rushed inside the comfort room, a case for arson was filed simultaneous burnings, or committed on several or
under destructive arson, the defense was stating that it was different occasions.
merely a part of the mall, but the crime is already 2. Any building of public or private ownership,
consummated, the door is attached to the mall. The crime of devoted to the public in general or where people
arson refers to the entire mall. usually gather or congregate for a definite purpose
such as, but not limited to, official governmental
Is there frustrated arson? function or business, private transaction,
commerce, trade, workshop, meetings and
US v. Valdez, he attempted to burn the house when he threw
conferences, or merely incidental to a definite
the lighted box strangers threw. There is frustrated arson, purpose such as but not limited to hotels, motels,
corroborated by the decision, it was put out, but by the action transient dwellings, public conveyances or stops or
of the others. terminals, regardless of whether the offender had
knowledge that there are persons in said building or
What if not intentionally caused? edifice at the time it is set on fire and regardless also
For example, you burned a sky lantern and flew burning the of whether the building is actually inhabited or not.
3. Any train or locomotive, ship or vessel, airship or
property, the fire was not intentionally caused. If with
plane, devoted to transportation or conveyance, or
negligence, it be Reckless Imprudence resulting to Arson for public use, entertainment or leisure;
applying the rule under Article 365 of the Revised Penal Code 4. Any building, factory, warehouse installation and
on quasi-offense. any appurtenances thereto, which are devoted to
the service of public utilities.
Three Types of Arson 5. Any building the burning of which is for the purpose
1. Simple Arson (PD 1613) of concealing or destroying evidence of another
violation of law, or for the purpose of concealing
2. Destructive Arson (Article 320, RA 7659)
bankruptcy or defrauding creditors or to collect
3. Other cases of Arson (PD 1613)
from insurance.
PD 1613_ Irrespective of the application of the above enumerated

SECTION 1. Arson. – Any person who burns or sets fire to the qualifying circumstances, the penalty of reclusion perpetua to
property of another shall be punished by prision mayor. death shall likewise be imposed when the arson is
perpetrated or committed by two (2) or more persons or by
The same penalty shall be imposed when a person sets fire to a group of persons, regardless of whether their purpose is
his own property under circumstances which expose to merely to burn or destroy the building or the burning merely
danger the life or property of another. constitutes an overt act in commission or another violation of
law.
Difference between Simple Arson and Destructive Arson The penalty of reclusion perpetua to death shall also be
Said classification is based on the kind, character, and location imposed upon any person who shall burn:
of the property burned, regardless of the value of damage. 1. Any arsenal, shipyard, storehouse or military
powder or fireworks factory, ordinance,
storehouse, archives or general museum of the
The nature of Destructive Arson (Article 320) from Simple
Government;
Arson by the degree of perversity or viciousness of the 2. In an inhabited place, any storehouse or factory of
criminal offender. The acts committed under Article 320 of RPC inflammable or explosive materials.
on Destructive Arson are characterized as heinous crimes for
being grievous, odious and hateful offenses and which by If as a consequence of the commission of any of the act
reason of their inherent or manifest wickedness, viciousness is penalized under this Article, death results, the mandatory
repugnant to the common standards and norms of decency. penalty of death shall be imposed.
PD 1613_ Arson vis-à-vis Murder

SECTION 3. Other Cases of Arson. – The penalty of reclusion
temporal to reclusion perpetua shall be impose if the property PEOPLE v. BALUNTONG GR 182061 (2010)
burned is any of the following: [I]n cases where both burning, and death occur, in order to
1. Any building used as offices of the government or determine what crime/crimes was/were perpetrated – whether
any of its agencies; arson, murder or arson and homicide/murder, it is de rigueur
2. Any inhabited house or dwelling; to ascertain the main objective of the malefactor:
3. Any industrial establishment, shipyard, oil well or
mine shaft, platform or tunnel;
4. Any plantation, farm, pastureland, growing crop, (a) if the main objective is the burning of the building or
grain field, orchard, bamboo grove or forest; edifice, but death results by reason or on the occasion
5. Any rice mill, sugar mill, cane mill or mill central; of arson, the crime is simply arson, and the resulting
and homicide is absorbed;
6. Any railway or bus station, airport, wharf or
warehouse. (b) if, on the other hand, the main objective is to kill a
particular person who may be in a building or edifice,
Section 6. Prima Facie Evidence of Arson when fire is resorted to as the means to accomplish
Any of the following circumstances shall constitute prima facie such goal the crime committed is murder only; lastly,
evidence of arson:
1. If the fire started simultaneously in more than one part (c) if the objective is, likewise, to kill a particular person,
of the building or establishment. and in fact the offender has already done so, but fire
2. If substantial amount of flammable substances or is resorted to as a means to cover up the killing, then
materials are stored within the building note there are two separate and distinct crimes committed
necessary in the business of the offender nor for – homicide/murder and arson.
household use.
3. If gasoline, kerosene, petroleum or other flammable There is No Complex Crime of Arson with Homicide
or combustible substances or materials soaked PD 1613 provides that if by reason of or on occasion of arson,
therewith or containers thereof, or any mechanical, death results, the penalty of reclusion perpetua to death shall
electrical, chemical, or electronic contrivance designed be imposed. The crime of homicide is absorbed.
to start a fire, or ashes or traces of any of the foregoing
are found in the ruins or premises of the burned ARTICLE 324. Crimes involving destruction. – Any person
building or property. who shall cause destruction by means of explosion, discharge
4. If the building or property is insured for substantially of electric current, inundation, sinking or stranding of a
more than its actual value at the time of the issuance vessel, intentional damaging of the engine of said vessel,
of the policy. taking up the rails from a railway track, maliciously changing
railway signals for the safety of moving trains, destroying
5. If during the lifetime of the corresponding fire
telegraph wires and telegraph posts, or those of any other
insurance policy more than two fires have occurred in system, and, in general, by using any other agency or means
the same or other premises owned or under the of destruction as effective as those above enumerated, shall
control of the offender and/or insured. be punished by reclusion temporal if the commission has
6. If shortly before the fire, a substantial portion of the endangered the safety of any person, otherwise, the penalty
effects insured and stored in a building or property of prision mayor shall be imposed.
had been withdrawn from the premises except in the
ordinary course of business. NOTE: RA 9372 also covers Article 324 as terrorism when a
7. If a demand for money or other valuable consideration person who commits an act punishable under Article 324 sows
was made before the fire in exchange for the and creates a condition of widespread and extraordinary fear
desistance of the offender or for the safety of the and panic among the populace to coerce government.
person or property of the victim.
CHAPTER NINE
Section 7. Conspiracy to Commit Arson MALICIOUS MISCHIEF
Conspiracy to commit arson shall be punished by Prision Mayor
in its minimum period.
ARTICLE 327. Who are liable for malicious mischief. – Any
person who shall deliberately cause the property of another
Section 8. Confiscation of Object of Arson any damage not falling within the terms of the next preceding
The building which is the object of arson including the land on chapter shall be guilty of malicious mischief.
which it is situated shall be confiscated and escheated to the
State, unless the owner thereof can prove that he has no
Malicious Mischief
participation in nor knowledge of such arson despite the
This is a crime against property. It is the wilfull damaging of
exercise of due diligence on his part.
another’s property for the sake of causing damage due to hate,
• Forfeited in favor of the state the object of arson.
revenge, or other evil motive.
ELEMENTS OF MALICIOUS MISCHIEF ARTICLE 329. Other mischiefs. – The mischiefs not included
1. That the offender Deliberately caused damage to the in the next preceding article shall be punished:
property of another. 1. By arresto mayor in its medium and maximum
2. That such act does Not constitute arson or other crime periods, if the value of the damage caused exceeds
involving destruction. Two hundred thousand pesos (₱200,000);
3. That the act of damaging another’s property be 2. By arresto mayor in its minimum and medium
periods, if such value is over Forty thousand pesos
committed Merely for the sake of damaging it.
(₱40,000) but does not exceed Two hundred
thousand pesos (₱200,000); and
NOTE: This third element presupposes that the offender acted 3. By arresto menor or a ne of not less than the value
due to hate, revenge or other evil motive. of the damage caused and not more than Forty
thousand pesos (₱40,000), if the amount involved
The offender should act under this impulse of a specific desire does not exceed Forty thousand pesos (₱40,000) or
to inflict injury to another. If follows that, in the very nature of cannot be estimated.
things, the crime of malicious mischief cannot be committed
through negligence since culpa and malice are essentially NOTE: Mischiefs not included in Article 328 are punished
incompatible. according toe the value of the damage caused. If cannot be
estimated like the scattering of human excrement in public
Bumping the Car of Another Due to Anger and Hate building, still has its penalty.
In Taguinod v. People (2011), the hitting of the back portion of
the CRV by the petitioner was deliberate but did not constitute ARTICLE 330. Damage and obstruction to means of
arson or other crimes involving destruction. When the Vitara communication. – The penalty of prision correccional in its
bumped with the CRB, the petitioner was just giving vent to his medium and maximum periods shall be imposed upon any
anger and hate as a result of a heated encounter between him person who shall damage any railway, telegraph or telephone
and the private complainant. lines.
NOTE: It is still malicious mischief if the act of damaging If the damage shall result in any derailment of cars, collision
or other accident, the penalty of prision mayor shall be
another’s property was inspired by mere pleasure of destroying.
imposed, without prejudice to the criminal liability of the
But if there is no malice, merely civil liability. offender for the other consequences of his criminal act.
• When there is intent to gain, it is now theft.
For the purpose of the provisions of the article, the electric
ARTICLE 328. Special cases of malicious mischief. – Any wires, traction cables, signal system and other things
person who shall cause damage to obstruct the performance pertaining to railways, shall be deemed to constitute an
of public functions, or using any poisonous or corrosive integral part of a railway system.
substance; or spreading any infection or contagion among
cattle; or who cause damage to the property of the National Damage and Obstruction to Means of Communication
Museum or National Library, or to any archive or registry,
It is qualified if the damage shall result in any derailment of cars,
waterworks, road, promenade, or any other thing used in
collision, or accident. The derailment or collision of cars should
common by the public, shall be punished:
1. By prisión correccional in its minimum and medium not have been purposely sought for by the offender.
periods, if the value of the damage caused exceeds
Two hundred thousand pesos (₱200,000); It must have resulted from damage to railway, telegraph or
2. By arresto mayor if such value does not exceed the telephone lines. It should not be removing rails it falls under
abovementioned amount but is over Forty thousand Article 324. The object of the offender under Article 330 is
pesos (₱40,000); and merely to cause damage, in Article 324 is for destruction.
3. 3. By arresto menor, if such value does not exceed
Forty thousand pesos (₱40,000).
When a person or persons are killed
What crime is committed if as a result of the damage caused to
Special Cases of Malicious Mischief the railway, certain passengers are killed? It depends.
The cases enumerated in this article are the so-called qualified
malicious mischief. They are the following: Article 330 says “without prejudice to the criminal liability of the
1. Causing Damage to obstruct the performance of offender for other consequences of his criminal act.” If there is
public functions; no intent to kill, it is Damages to Means of Communication with
2. Using any Poisonous or corrosive substance; Homicide because of Article 4 and Article 48.
3. Spreading any Infection or contagion among cattle.
4. Causing damage to the property of the National If there is intent to kill and damaging the railways was the
Museum or National Library, or to any archive or means to accomplish the criminal purpose it is Murder. Article
registry, waterworks, road, promenade, or any other 248 (3) says that murder is also committed by means of
thing Used in common by the public. derailment or assault upon a railroad, using it as a means to kill
another. Thus, the circumstances must be examined.
ARTICLE 331. Destroying or damaging statues, public after the death of the deceased spouse, regardless of whether
monuments or paintings. — Any person who shall destroy the marriage produced children or not. The interpretation was
or damage statues or any other useful or ornamental public used in favor of accused.
monument, shall suffer the penalty of arresto mayor in its
medium period to prisión correccional in its minimum Effect of Absolutory Cause Under Article 332 on Criminal
period. Liability for the Complex Crime of Estafa through
Falsification of Public Documents
Any person who shall destroy or damage any useful or
ornamental painting of a public nature shall suffer the penalty Q. Does Article 332 apply to complex crimes where one of the
of arresto menor or a fine not exceeding Forty thousand component crimes is either theft, estafa or malicious mischief?
pesos (₱40,000), or both such ne and imprisonment, in the
discretion of the court.” However, the coverage of Article 332 is strictly limited to the
felonies mentioned therein. The plain, categorical and
CHAPTER TEN unmistakable language of the provision shows that it applies
EXEMPTION FROM CRIMINAL LIABILITY IN CRIMES exclusively to the simple crimes of theft, swindling and
AGAINST PROPERTY malicious mischief. It does not apply where any of the crimes
mentioned under Article 332 is complexed with another crime,
such as theft through falsification or estafa through falsification.
ARTICLE 332. Persons exempt from criminal liability. —
No criminal, but only civil liability, shall result from the
commission of the crime of theft, swindling or malicious However, a proper appreciation of the scope and application of
mischief committed or caused mutually by the following Article 332 of the Revised Penal Code and of the nature of a
persons: complex crime would negate exemption from criminal liability
1. Spouses, ascendants and descendants, or relatives for the complex crime of estafa through falsification of public
by affinity in the same line. documents, simply because the accused may not be held
2. The widowed spouse with respect to the property criminally liable for simple estafa by virtue of the absolutory
which belonged to the deceased spouse before the cause under Article 332.
same shall have passed into the possession of
another; and
3. Brothers and sisters and brothers-in-law and The absolutory cause under Article 332 is meant to address
sisters-in-law, if living together. specific crimes against property, namely, the simple crimes of
theft, swindling and malicious mischief. Thus, all other crimes,
The exemption established by this article shall not applicable whether simple or complex, are not affected by the absolutory
to stranger participating in the commission of the crime. cause provided by the said provision. To apply the absolutory
cause under Article 332 of the Revised Penal Code to one of the
NOTE: Presumed co-ownership between these individuals. component crimes of a complex crime for the purpose of
Exemption is personal to the offender and it does not apply to negating the existence of that complex crime is to unduly
stranger who participates in the commission of the crime. There expand the scope of Article 332. In other words, to apply Article
is only civil liability. 332 to the complex crime of estafa through falsification of
public document would be to mistakenly treat the crime of
Crimes Involved in the Exemption estafa as a separate simple crime, not as the component crime
1. Theft that it is in that situation. It would wrongly consider the
2. Swindling (estafa) indictment as separate charges of estafa and falsification of
3. Malicious Mischief public document, not as a single charge for the single (complex)
crime of estafa through falsification of public document.
Persons Exempt from Criminal Liability
1. Spouses, ascendants and descendants, or relatives by Under Article 332 of the Revised Penal Code, the State waives
affinity in the same line. its right to hold the offender criminally liable for the simple
2. The widowed spouse with respect to the property crimes of theft, swindling and malicious mischief and considers
which belonged to the deceased spouse before the the violation of the juridical right to property committed by the
same passed into the possession of another. offender against certain family members as a private matter
3. Brothers and sisters and brothers-in-law and sisters- and therefore subject only to civil liability. The waiver does not
in-law, if living together. apply when the violation of the right to property is achieved
NOTE: Stepfather, adopted father, natural children, concubine, through (and therefore inseparably intertwined with) a breach
paramour included. As well as common law spouses of the public interest in the integrity and presumed authenticity
of public documents. For, in the latter instance, what is involved
INTESTATE ESTATE OF GONZALES v. PEOPLE (2010) is no longer simply the property right of a family relation but a
Q. Does death affect the relationship by affinity of the offender paramount public interest.
and the offended party?
The court here attached to the continuing affinity view,
maintains that relationship by affinity between the surviving
spouse and the kindred of the deceased spouse continues even
CRIMINAL LAW II Once it is shown that a man and a woman lived as husband and
wife, and none of the parties denied and contradicted the
REVISED PENAL CODE
allegation in the complaint, the presumption of their being
married must be admitted as a fact.
TITLE XI
CRIMES AGAINST CHASTITY The Offended Party Must be Legally Married to the
Offender at the Time of the Criminal Case
CHAPTER ONE Pilapil v. Ibay-Somera: The person who initiates the adultery
ADULTERY AND CONCUBINAGE case must be an offended spouse and by this is meant that he
is still married to the accused spouse at the time of the filing of
ARTICLE 333. Who are guilty of adultery. – Adultery is the complaint. Thus, where the offended party (foreigner) in an
committed by any married woman who shall have sexual adultery case already obtained a divorce in his country before
intercourse with a man not her husband and by the man who the adultery proceedings are commenced, he no longer has the
has carnal knowledge of her knowing her to be married, even right to institute proceedings against the offenders.
if the marriage be subsequently declared void.
Even if the Marriage be Subsequently Declared Void
Adultery shall be punished by prision correccional in its At no time does the bond of matrimony contain a defect which
medium and maximum periods.
by itself is sufficient to dissolve the union. Until the marriage is
If the person guilty of adultery committed this offense while declared to be null and void by competent authority in a final
being abandoned without justification by the offended judgment, the offense to the vows taken, and the attack on the
spouse, the penalty next lower in degree than that provided family exists, the adultery reunites the essential conditions
in the next preceding paragraph shall be imposed. required for its punishment.
ELEMENTS OF ADULTERY Carnal Knowledge Proved by Circumstantial Evidence

1. That the woman is Married; Direct proof of carnal knowledge is not necessary to sustain a
2. That she has Sexual intercourse with a man not her conviction for adultery. In the very nature of things, it is seldom
husband; that adultery can be established by direct evidence. The legal
3. That about the man whom she has sexual intercourse, tenet therefore, has been and still is that circumstantial and
he must Know her to be married. corroborative evidence such as will lead the guarded discretion
of a reasonable and just man to the conclusion that the criminal
Discussion act of adultery has been committed.
The gravamen of this crime is the sexual intercourse of a woman not
her husband. This is to prevent introduction of spurious children in the NOTE: This kind of evidence however, is not sufficient for the
family. Simply sexual intercourse. application of Article 247, which requires that a married person
should surprise his spouses in the act of sexual intercourse with
Adultery is not a continued crime; every sexual intercourse is one count another person.
of adultery. Circumstantial evidence is already sufficient, not necessarily
the act. The standards of Article 247 do not apply to Article 333. The
Each Sexual Intercourse Constitutes a Crime of Adultery
man, who had sexual intercourse with the married woman, must know
that woman is married, otherwise, he cannot be made liable. The crime of adultery is not a continuing offense. The crime of
adultery is an instantaneous crime which is consummated and
Should the marriage be valid? No, even if the marriage be declared void, completed at the moment of the carnal union. Each sexual
when it was done during subsistence of marriage is still adultery. intercourse constitutes a crime of adultery.
What if there is abandonment? It is merely a privileged mitigating NOTE: While a married man cannot be held liable for adultery
circumstance and does not exculpate them in the offense.
if he did not know the woman was married; he can be held liable
under concubinage.
How to do you prosecute adultery? You have to file the case against both
of them, you cannot institute prosecute one only it must be both of
them. Q. What if the paramour dies?
It will not bar prosecution against the unfaithful wife, because
What if the man does not know that the woman is not married? You the requirement that both offenders should be included in the
still have to file, it is for the judicial tribunals to decide whether he is complaint is absolute only when the two offenders are alive.
criminally liable or not, you still have file a case to them.
Q. What if the offended spouse dies?
Who may file? It is only the offended spouse may file against the erring
The proceedings must continue. The theory that a man’s honor
wife and the paramour.
ceases to exist from the moment that he dies is not acceptable.
Woman Must be Married Article 353 seeks to protect the honor and reputation not only
The legitimacy of the marriage relation between the offended of those living but of dead persons as well. But if he dies before
husband and the defendant wife is one of the circumstances the complaint could be filed, the case cannot go on, because
which must necessarily attend the crime of adultery. no one can sign and file the complaint.
Effect of Pardon (See Article 344) Sexual Intercourse under Scandalous Circumstances
1. The pardon must come before the institution of the Scandal consists in any reprehensible word or deed that offends
criminal prosecution; public conscience, redounds to the detriment of feeling of
2. Both the offender must be pardoned by the offended honest persons and gives occasion to the neighbor’s spiritual
party. damage or ruin.
In view of these requirements, a motion to dismiss filed on It is only when the mistress is kept elsewhere (outside the
behalf of the defendant wife alone based on an affidavit conjugal) that scandalous circumstances become an element of
executed by the offended husband in which he pardoned only the crime.
her for the infidelity cannot prosper.
The scandal produced by the concubinage of a married man
NOTES occurs on the following instances:
• Consent can be implied from agreement to separate; 1. He and his mistress live in the same room of a house;
• Implied pardon can be implied from subsequent act 2. They appear together in public
of intercourse after the adulterous act; 3. Perform acts in sight of the community which give rise
• There is no accomplice for adultery. to criticism and general protest among the neighbors
ARTICLE 334. Concubinage. – Any husband who shall keep The qualifying express under scandalous circumstance refers to
a mistress in the conjugal dwelling, or shall have sexual the act of sexual intercourse which may be proved by
intercourse, under scandalous circumstances, with a woman circumstantial evidence.
who is not his wife, or shall cohabit with her in any other
place, shall be punished by prision correccional in its So, if you hire spies, it does not elevate such to scandalous
minimum and medium periods. circumstances. It must be readily known to the public. It must
be publicly reprehensible.
The concubine shall suffer the penalty of destierro.
• The people in the vicinity are the best witnesses to
prove scandalous circumstance.
Discussion
The readily distinction is the penalty. Many criticized the disparity of Cohabiting with Any Other Place
penalties, in Article 333 it is PC med-max, in Article 334 is PC min-med.
It refers to an appreciable length of time. The term "cohabit"
There is a reason why concubinage slightly lighter, in adultery there is
means to dwell together, in the manner of husband and wife,
risk in putting spurious heirs while in concubinage there is not.
for some period of time, as distinguished from occasional,
Three ways of committing the crime of concubinage: transient interviews for unlawful intercourse.
1. By Keeping a mistress in the conjugal dwelling;
2. By having Sexual intercourse, under scandalous NOTE: Mere cohabitation is sufficient, proof of scandalous
circumstances, with a woman who is not his wife; or circumstance is not necessary.
3. By Cohabiting with her in any other place.
Hence, the offense is not a single act of adultery; it is cohabiting
ELEMENTS in a state of adultery which may be a week, a month, a year or
1. That the man must be Married. longer. Thus, there is no concubinage if a married man is
2. That he committed any of the following acts: surprised in the act of sexual intercourse with a woman not his
a. Keeping a mistress in the conjugal dwelling; wife in a hotel.
b. By having Sexual intercourse under
scandalous circumstances with a woman Thus, also, a person who keeps a mistress in an apartment
who is not his wife; furnished by him is not guilty of concubinage if he does not live
c. By Cohabiting with her in any other place. or sleep with her in said apartment. If it falls short of
3. That as regard the woman, she must Know him to be concubinage you can file under RA 9262.
married.
The concubine must know that the man must be married. If not,
NOTE: A married man is not liable for concubinage for mere then she is not criminally liable. If she knows, she is only liable
sexual relation with a woman not his wife. for the crime of destierro. She is only liable for destierro.
• Similar in Article 247
Conjugal Dwelling • Different from Article 333.
It is the home of the husband and wife even if the wife happens
to be temporarily absent on any account. A house, constructed Adultery is More Severely Punished than Concubinage
on the proceeds of the sale of the conjugal properties of the Reason: Because adultery makes possible the introduction of
spouses, especially where they had intended it to be so, is a another man’s blood into the family so that the offended
conjugal dwelling, and the fact that the wife never had a chance husband may have another man’s son bearing his name and
to reside and that the husband used it with his mistress instead, receiving support from him.
does not detract from its nature.
CHAPTER TWO The differences are:

RAPE AND ACTS OF LASCIVIOUSNESS (a) If the acts performed by the offender clearly indicate
that his purpose was to lie with the offended woman,
NOTE: ARTICLE 335 has been repealed by RA 8353 and moved to it is attempted or frustrated rape.
Title VIII under Crimes Against Persons under Articles 266-A to 266-D. (b) In the case of attempted rape, the lascivious acts are
but the preparatory acts to the commission of rape;
ARTICLE 336. Acts of lasciviousness. – Any person who whereas, in the other, the lascivious acts are
shall commit any act of lasciviousness upon other persons of themselves the final objective sought by the offender.
either sex, under any of the circumstances mentioned in the
preceding article, shall be punished by prision correccional. Supplemental Notes:
• Embracing, kissing and holding girl’s breast is act of
ELEMENTS lascivious if present the four circumstances;
1. That the offender commits any act of Lasciviousness • But if the touching of the breast or kissing in public
of lewdness; view as made in public (which cancels lewdness) he
2. That the act of lasciviousness is committed against a can only be held guilty for unjust vexation.
Person of either sex; • Lover’s kisses and embrace not acts of lasciviousness
3. That it is done under any of the following
circumstances: Presence of Absence of Lewdness
a. By using Force or intimidation; or It can be inferred from the nature of the act themselves and the
b. When the offended party is Deprived of environmental circumstances. In the instant case, in view of the
reason or otherwise unconscious; manner, place and time under which the acts complained of
c. By means of Fraudulent machination or shall be considered in determining sense of privacy.
grave abuse of authority;
d. When the offended party is Under 12 years No Attempted or Frustrated Acts of Lasciviousness
of age or is demented. In cases of acts of lasciviousness, from the moment the offender
performs all the elements necessary for the existence of the
NOTE: The offended party may either party, and it should be felony, he actually attains his purpose and from that moment,
coupled with the circumstances that qualifies rape. If there is all essential elements of the offense have been accomplished.
none, then it is merely unjust vexation.
From the standpoint of the law, there can be no frustration of
Lewd Intent acts of lasciviousness, because no matter how far the offender
"Lewd" is denned as obscene, lustful, indecent, lecherous. It may have gone towards the realization of his purpose, if his
signifies the form of immorality which has relation to moral participation amounts to performing all the acts of execution,
impurity; or that which is carried on a wanton manner. the felony is necessary produced as a consequence thereof.
The prevailing standard is when the act is committed in public SOMBILON v. PEOPLE GR 175528 (2009)
open to the public you cannot say that there is lewd intent, if When the accused merely kissed and embraced complainant
the acts are committed in a coffee shop visible to the public, it either out of passion or other motive, touching the girl’s breast
destroys the lewd intent. Unlike in bathrooms and theatres. as a mere incident of the embrace is unjust vexation.
• Even if it is in public place but due to the environment
that increases the sense of privacy, it gives rise to the When the accused touched three times the private parts of the
presence of lewd intent. It depends on the case. offended woman over her panties, without employing any force
or intimidation, he is guilty of unjust vexation only.
Distinguished from Attempted Rape
The intent to lie differentiates it from attempted rape. The But the accused’s acts of kissing the victim, fondling her breasts,
intent to lie must be taken in the context of intent to penetrate and touching her private parts constitute acts of lascivious
but otherwise, mere intent to violate the dignity, it is merely conduct intended to quench his salacious desire.
acts of lasciviousness.
Accused’s lewd intent was betrayed when he asked AAA,
The manner of committing the crime is the same, that is, force Dalaga ka ba? as a prelude to his lustful advances on the victim
or intimidation is employed, by means of fraudulent and thereafter conveyed to her that “I am single too” He is guilty
machination or grave abuse of authority, or the offended party of acts of lasciviousness.
is deprived of reason or otherwise unconscious, under 12 years
of age or is demented. The offended party in both crimes is a NOTE: The placing of a man’s private parts over a girl’s genital
person of either sex. The performance of acts of lascivious organ is an act of lasciviousness. Thus, a man who threw a girl
character is common to both crimes. upon the floor, placed his private parts upon or over hers and
• The motive of lascivious acts is not important because remained in that position or made motions of sexual
the essence of lewdness is in the very act itself. Thus, intercourse, is guilty of acts of lasciviousness under Article 336
no need to differentiate motive. of the Revised Penal Code.
RA 7610 and Acts of Lasciviousness Virginity

The lascivious act must have coupled with coercion or influence The meaning of virginity, therefore, must be the same for both
on the part of the adult, as compared with Article 336 only the crimes. The virginity to which the Penal Code refers is not to be
elements are required. Thus, acts of lasciviousness punished understood in so material a sense as to exclude the idea of
under Section 5(b) of RA 7610 shall be punished when the acts abduction of a virtuous woman of good reputation.
of lasciviousness are performed on a child below 18 years of
age exploited in prostitution or subjected to other sexual abuse. The circumstances are such that the offended party gives
• Caoili v. People: When the child is under 12 years of vitiated consent. There be sexual intercourse in qualified
age apply RA 7610; above 12 years apply Article 336. seduction.
CHAPTER THREE The term "domestic" includes all those persons residing with
SEDUCTION, CORRUPTION OF MINOR the family and who are members of the same household,
AND WHITE SLAVE TRADE regardless of the fact that their residence may only be
temporary or that they may be paying for board and lodging.
Seduction - It means enticing a woman to unlawful sexual
intercourse by promise of marriage or other means of Even if the sister or descendant is above, it qualifies as qualified
persuasion without use of force. seduction, as there is abuse authority, confidence and
a. Qualified seduction; relationship. Absence of consent is immaterial.
b. Simple seduction.
ELEMENTS OF QUALIFIED SEDUCTION OF A VIRGIN
ARTICLE 337. Qualified seduction. – The seduction of a 1. That the offended party is a Virgin which is presumed
virgin over twelve years and under eighteen years of age, if she is unmarried and of good reputation;
committed by any person in public authority, priest, home- 2. That she must be Over 12 under 18 years of age.
servant, domestic, guardian, teacher, or any person who, in 3. That the offender has Sexual Intercourse with her.
any capacity, shall be entrusted with the education or custody 4. That there is either:
of the woman seduced, shall be punished by prision a. Abuse of Authority;
correccional in its minimum and medium periods.
i. Persons in public authority;
The penalty next higher in degree shall be imposed upon any ii. Guardian;
person who shall seduce his sister or descendant, whether or iii. Teacher
not she be a virgin or over eighteen years of age. iv. Person, who in any capacity, is
entrusted with the education or
Under the provisions of this Chapter, seduction is committed custody of the woman seduced.
when the offender has carnal knowledge of any of the persons b. Abuse of Confidence;
and under the circumstances described herein.
i. Priest
ii. House servant
Qualified Seduction iii. Domestic
She must be a virgin and over 12 but under 18 years of age. c. Abuse of Relationship on the part of the
Virginity is presumed if the woman is unmarried and of good offender.
reputation. It is the accused who must prove otherwise, and the
proof must be convincing, not just insinuations or conjectures. Qualified Seduction from Rape
ARTICLE 337 ARTICLE 266-A (1)
If the woman is married and the offender knows it, having Crimes Against Chastity Crimes Against Honor
sexual intercourse with her is adultery. The woman must be a virgin No such element
Over 12 years of age but Any age, except under 12
If the victim is less than 12 years of age, the crime is rape. If the under 18 which is statutory rape
victim is over 18 years of age, qualified seduction is not
Abuse of authority Force, threat or intimidation
committed. There is no crime at all, if there is no force or
intimidation or the woman is not unconscious or otherwise
Abuse of confidence Deprivation of reason or
deprived of reason. If the age is exactly 12 years old, you
otherwise unconscious
punish under RA 7610.
Abuse of relationship
Fraudulent machinations or
Two Classes of Qualified Seduction
grave abuse of authority
1. Seduction of a virgin over 12 years and under 18 years
of age by certain persons, such as persons in authority,
Under 12 years of age
priest, teacher, etc.; and
2. Seduction of a sister by her brother, or descendant by
NOTE: If any of the circumstances of rape are present, charge
her ascendant, regardless of her age or reputation.
rape. The accused charged with rape cannot be convicted of
qualified seduction under the same information.
NOTE: The offended party need not be physically virgin.
BABANTO v. ZOSA A. In a work-related or employment environment, sexual

13-year-old victim. Babanto brought her to the ABC Hall. There was no harassment is committed when:
one in the ABC Hall and it was dark. When they arrived at the ABC Hall, 1) The sexual favor is made as a condition in the hiring or in the
Babanto made her lie down with her face upward. While she was in this employment, re-employment or continued employment of said
position, Babanto lifted up her dress and took away her panty. While
individual, or in granting said individual favorable
Babanto was lifting her dress and removing her panty, she kicked him,
but he held her down.
compensation, terms of conditions, promotions, or privileges;
or the refusal to grant the sexual favor results in limiting,
Then Babanto exposed his penis, laid down on top of her and segregating or classifying the employee which in any way
commenced the sexual act. She felt pain in her vagina as his penis would discriminate, deprive or diminish employment
penetrated. She could not shout when she was being abuse because opportunities or otherwise adversely affect said employee;
Babanto covered her mouth, Leonida then cried. After the sexual act
Babanto told her that if she was going to tell her parents he was going (2) The above acts would impair the employee's rights or
to shoot her.
privileges under existing labor laws; or
Issue: Is Babanto liable for qualified seduction?

(3) The above acts would result in an intimidating, hostile, or
offensive environment for the employee.
Held: Considering the circumstances of the case as adduced by
the evidence of the prosecution and defense, the Court is of the
B. In an education or training environment, sexual
opinion and so holds that the accused had sexual intercourse
harassment is committed:
with the comlaining girl although there was no violence nor
(1) Against one who is under the care, custody or supervision
intimidation, which preceded the sexual intercourse. The Court,
of the offender;
however, takes into consideration the observation it made on
the complaining witness that she was 13 years old, a moron,
(2) Against one whose education, training, apprenticeship or
who answers questions in monosyllables.
tutorship is entrusted to the offender;
In the instant case, considering the age, mental abnormality,

(3) When the sexual favor is made a condition to the giving of
and deficiency of the complainant plus the fact that the
a passing grade, or the granting of honors and scholarships, or
accused-petitioner was at the time of the incident in uniform
the payment of a stipend, allowance or other benefits,
and with a side arm, there was sufficient intimidation to convict
privileges, or consideration; or
for rape. The fact that the complainant kicked the accused-
petitioner while the latter was lifting her dress and removing
(4) When the sexual advances result in an intimidating, hostile
her panty and that she cried afterwards negate any consent on
or offensive environment for the student, trainee or apprentice.
her part to the sexual intercourse.
For so long as there is
The court corrected that the finding of presence of intimidation • Abuse of confidence
of the age and mental capacity of the party and the offended • Abuse of authority
was a policeman in uniform during the offense, it is enough to • Abuse of relationship
give rise to the presence of intimidation, and it is considered a
circumstance of rape. In presence of intimidation, it takes the
crime to rape not to qualified seduction.
ARTICLE 338. Simple seduction – The seduction of a woman
who is single or a widow of good reputation, over twelve but
under eighteen years of age, committed by means of deceit,
RA 7877 shall be punished by arresto mayor.
Anti-Sexual Harassment Act of 1995
ELEMENTS
Section 3. Work, Education or Training -Related, Sexual
1. That the offended party is Over 12 and under 18
Harassment Defined. - Work, education or training-related
years of age.
sexual harassment is committed by an employer, employee,
2. That she must be of Good reputation, single or widow.
manager, supervisor, agent of the employer, teacher, instructor,
3. That the offender has Sexual intercourse with her.
professor, coach, trainor, or any other person who, having
4. That it is committed by means of Deceit.
authority, influence or moral ascendancy over another in a work
or training or education environment, demands, requests or
NOTE: From 337, here there is deceit, usually through an
otherwise requires any sexual favor from the other, regardless
unfulfilled promise to marry. The usual form of deceit. The
of whether the demand, request or requirement for submission
offended party need not be virgin, she must be of good
is accepted by the object of said Act.
reputation and single is enough.
Qualified seduction from Sexual Harassment
Note that similar to qualified seduction, the age is over 12 but
1. Mala in se; mala prohibita
under 18 years, if over and absence of any of circumstances
2. Sexual intercourse; mere demand or solicitation
there is no crime.
Q. What if the deceit employed is the giving of things like ARTICLE 341. White slave trade. - The penalty of prision
unfulfilled giving of jewelry? mayor in its medium and maximum period shall be imposed
upon any person who, in any manner, or under any pretext,
If a woman under 18 years old, but over 12, agrees to a sexual shall engage in the business or shall profit by prostitution or
intercourse with a man who promised to give her precious shall enlist the services of any other for the purpose of
jewelry, and the man never fulfills it, there is no seduction, prostitution (As amended by Batas Pambansa Blg. 186.)
because she proves to be a woman of loose morals. She is a
high-class prostitute. The deceit must not involve material Acts Punishable
things, it must involve emotions and affections. 1. Engaging in the business of prostitution.
2. Profiting by prostitution.
Supplemental points: 3. Enlisting the services of women for the purpose of
• Promise of marriage after sexual intercourse does not prostitution.
constitute deceit;
• No continuing offense of seduction. Supplemental points:
• Habituality is not a necessary element of white slave
ARTICLE 339. Acts of lasciviousness with the consent of the trade, it is sufficient that the offender has committed
offended party. – The penalty of arresto mayor shall be any of the act enumerated under Article 341.
imposed to punish any other acts of lasciviousness
committed by the same persons and the same circumstances RA 9208: Act, means and purpose if applicable, then it is
as those provided in Articles 337 and 338. punishable as human trafficking.
ELEMENTS CHAPTER FOUR

1. That the offender commits Acts of lasciviousness or ABDUCTION
lewdness.
2. That the acts are committed upon a Woman who is Abduction
virgin or single or widow of good reputation, under 18 By abduction is meant the taking away of a woman from her
years of age but over 12 years, or a sister or house or the place where she may be for the purpose of
descendant regardless of her reputation or age. carrying her to another place with intent to marry or to corrupt
3. That the offender Accomplishes the acts by abuse of her. It is coupled with lewd designs: There are two.
authority, confidence, relationship, or deceit. 1. Forcible abduction;
2. Consented abduction.
In Article 336, the circumstances are attendant, under Article
339, it would be qualified to seduction were it not for the ARTICLE 342. Forcible abduction. — The abduction of any
absence of sexual intercourse. Acts of lasciviousness and the woman against her will and with lewd designs shall be
circumstances make this fall under Article 339. punished by reclusion temporal.
The same penalty shall be imposed in every case, if the female

ARTICLE 340. Corruption of minors. - Any person who shall abducted be under twelve years of age.
promote or facilitate the prostitution or corruption of
persons underage to satisfy the lust of another, shall be
punished by prision mayor, and if the culprit is a pubic officer ELEMENTS OF FORCIBLE ABDUCTION
or employee, including those in government-owned or 1. That the person abducted is any Woman, regardless
controlled corporations, he shall also suffer the penalty of of her age, civil status, or reputation.
temporary absolute disqualification. 2. That the abduction is Against her will.
3. That the abduction is with Lewd designs.
Corruption of Minors
The act of facilitating prostitution of a minor, to satisfy the lust If Female Abducted is Under 12 Years of Age
of another. If it is to satisfy one own’s ends, Article 340 does not In case the female abducted is under 12 years of age, it is not
apply. Read Article 340 in connection with RA 7610 where in the necessary that she be taken against her will, even if she
latter, there is a higher penalty under Section 5(b). voluntarily goes with her abductor.
What the law punishes is the act of a pimp who facilitates the The law says: “The same penalty shall be imposed in every case
corruption of, and not the performance of unchaste acts upon if the female abducted be under 12 years of age,” The reason
the minor. for this provision is that she has no will of her own and
therefore, is incapable of giving consent.
A mere proposal will consummate the offense. Thus, a father
who proposes to his daughter that she accompany a man to Sexual Intercourse is Not Necessary in Forcible Abduction
satisfy the lust of the latter, commit a consummated corruption If there was sexual intercourse after the forcible abduction, and
of minors. any of the circumstances of rape are present, then the offender
• The victim must of under age. is liable for Forcible Abduction with Rape.
Forcible Abduction with Rape from Rape ARTICLE 343. Consented abduction. - The abduction of a
People v. Godines. Esther Ancajas, the private complainant, testified virgin over twelve years and under eighteen years of age,
as follows: In the evening of March 17, 1988, she was sleeping in the carried out with her consent and with lewd designs, shall be
house of one Alejandro Vilaksi at Sitio Sincamas, Sta. Cruz, San Pascual, punished by the penalty of prision correccional in its
Masbate. She was awakened by a commotion emanating from an minimum and medium periods.
adjacent room occupied by Vilaksi and his wife Milagros. She lit a
kerosone lamp to ascertain what was going on. Thereafter, she saw the
defendants-appellants talking to the couple. Godines eventually ELEMENTS
hacked Milagros. Moreno stood by the window to serve as a lookout 1. That the offended party must be a Virgin.
person. The couple's son Vicente ran away from the house after seeing 2. That she must be Over 12 and under 18 years of age.
Godines hack Milagros. 3. That the Taking away of the offended party must be
with her consent, after solicitation or cajolery from
The appellants, however, saw her and grabbed her. The two men
the offender.
dragged Ancajas and the child out of the house and forcibly brought
4. That the taking away of the offended party must be
them to a nearby vacant lot with tall grasses, about 600 meters away
from the Vilaksi residence. Both men were apparently armed; Godines with Lewd designs.
had a pistol and Moreno had a knife. They threatened to kill Ancajas if
she resisted their advances. NOTE: If the victim was under 12 years of age it is forcible
abduction. When there is no solicitation or cajolery and no
As they were dragging her to the vacant lot, they fondled her private deceit, there is no crime committed even if they had sexual
parts. Upon their arrival at the vacant lot, the appellants took turns in intercourse.
having carnal knowledge of Ancajas. Godines did it first. While one was
raping the girl, the other was holding on to the child. All the while, the
Consented Abduction from Qualified Seduction
appellants threatened to kill Ancajas if she put up any resistance.
Perez v. CA (1988). On October 21, 1974 Yolanda Mendoza
Ancajas tried to resist but the appellants simply overpowered her. After filed criminal complaint against Eleuterio Perez for Consented
the appellants had finished satisfying their carnal desires, they Abduction but was acquitted now she filed for Qualified
threatened her anew with death because they suspected that Ancajas Seduction.
recognized them. Ancajas knew who they were but for fear of losing
her life, she denied knowing any of them. Thus, the appellants warned Is there identity of the two?
her not to report the incident to the authorities if she valued her life.
Ancajas took refuge in the house of a neighbor, Elpidio Aballe. She fell
It is true that the two offenses for which petitioner was charged
unconscious there. She eventually regained her consciousness after
which she narrated to Aballe the ordeal she went through. Ancajas later arose from the same facts. This, however, does not preclude the
informed her parents and the authorities about the incident. filing of another information against him if from those facts,
two distinct offenses, each requiring different elements, arose.
The trial court correctly held that forcible abduction is
absorbed in the crime of rape if the main objective of the An examination of the elements of these two crimes would
appellant is to rape the victim. show that although they may have arisen from the same set of
No doubt the evidence show the appellants through force and facts, they are not Identical offenses as would make applicable
intimidation and conspiring with each other successfully raped the rule on double jeopardy.
the victim by taking turns in raping her while the other held the
child of the victim and threatened her against resisting. The There are similar elements between Consented Abduction and
forcible abduction only made as intimidation then they were Qualified Seduction, namely:
charged only rape. (1) that the offended party is a virgin, and,
(2) that she must be over twelve (12) and under eighteen
Only One Rape can be Complexed (18) years of age.
The other rapes are not absorbed in the crime in forcible
abduction with rape unlike in serious illegal detention with However, two elements differentiate the two crimes. Consented
rape. Only one rape can be complexed because only the first Abduction, in addition to the two common elements, requires
rape was only those used for the forcible abduction. The other that:
rapes did not need forcible abduction as a necessary means. (1) the taking away of the offended party must be with
her consent, after solicitation or cajolery from the
People v. Garcia. There can only be one complex crime of offender, and,
forcible abduction with rape. The crime of forcible abduction (2) the taking away of the offended party must be with
was only necessary for the first rape. Thus, the subsequent acts lewd designs.
of rape can no longer be considered as separate complex
crimes of forcible abduction with rape. On the other hand, an information for Qualified Seduction also
requires that:
They should be detached from and considered independently (1) the crime be committed by abuse of authority,
of the forcible abduction. Therefore, accused should be confidence or relationship, and
convicted of one complex crime of forcible abduction with rape (2) the offender has sexual intercourse with the woman.
and three separate acts of rape. (Application of Article 48).
In terms of the gravamen of the offense of the abduction of a Pilapil v. Ibay-Somera – by virtue of the divorce decree he is
woman with her own consent, who is still under the control of no longer considered as the offended spouse to file a criminal
her parents or guardians is "the alarm and perturbance to the case for adultery. The divorce effects are recognized, so he
parents and family" of the abducted person, and the could not validly intitated a criminal proceeding as he could not
infringement of the rights of the parent or guardian. be considered as the offended spouses.
• But-in cases of seduction, the gravamen of the offense
is the wrong done the young woman who is seduced. Seduction, Abduction or Acts of Lasciviousness
Having sexual intercourse with a woman. These crimes must be prosecuted upon complaint signed by:
a. Offender party; or
Crimes Against Chastity are Private Crimes b. Her parents;
You cannot prosecute them without the participation of the c. Grandparents;
offended party. d. Guardians, in the order in which they are named
above.
CHAPTER FIVE
PROVISIONS RELATIVE TO THE PRECEDING CHAPTERS OF NOTE: When complexed with another crime, complaint need
TITLE ELEVEN not be signed by the offended woman. In cases of rape, any
one now can file complaint.
ARTICLE 344. Prosecution of the crimes of adultery,
concubinage, seduction, abduction, rape and acts of Consent or Pardon
lasciviousness. — The crimes of adultery and concubinage It is only significance before the filing of the case, if it occurs
shall not be prosecuted except upon a complaint filed by the after, the jurisdiction is with already with the state, thus it can
offended spouse. no longer be extinguished with the state.
The offended party cannot institute criminal prosecution

Pardon in crimes against chastity.
without including both the guilty parties, if they are both
alive, nor, in any case, if he shall have consented or pardoned Pardon of the offenders by the offended party is a bar to
the offenders. prosecution for adultery or concubinage. (Art. 344, par. 2) The
pardon may be express or implied.
The offenses of seduction, abduction, rape or acts of
lasciviousness, shall not be prosecuted except upon a Pardon in adultery and concubinage must come before the
complaint filed by the offended party or her parents, institution of the criminal action and both offenders must be
grandparents, or guardian, nor, in any case, if the offender has
pardoned by the offended party if said pardon is to be effective.
been expressly pardoned by the above-named persons, as the
(People vs. Infante, 57 Phil. 138). So, where the offended
case may be.
husband had pardoned the adulterous act of his wife, such
In cases of seduction, abduction, acts of lasciviousness and pardon precluded him from prosecuting for adultery, not only
rape, the marriage of the offender with the offended party his wife but also her paramour.
shall extinguish the criminal action or remit the penalty
already imposed upon him. The provisions of this paragraph Express pardon of the offender by the offended party or other
shall also be applicable to the co-principals, accomplices and persons named in the law, as the case may be, is a bar to
accessories after the fact of the above-mentioned crimes.
prosecution for seduction, abduction, rape or acts of
lasciviousness. (Art. 344, par. 3). Pardon in seduction must also
Adultery and Concubinage: Only Offended Spouse come before the institution of criminal action. (People vs.
The parent or grandparent, or any other person in behalf of the Miranda, 51 Phil. 274)
offended party, is not authorized by law in any case to sign and
file complaint for adultery or concubinage. The pardon must be express in seduction, abduction or acts
of lasciviousness – parent, grandparent or guardian
Even in the case where the offended spouse is underage, his or Article 344 provides that the offenses of seduction, abduction,
her parents cannot file the complaint for adultery or or acts of lasciviousness shall not be prosecuted in any case if
concubinage, as the case may be, against the offenders. Or, if the offender has been expressly pardoned by the offended
because of disease the offended spouse becomes incapacitated party, parents, grandparents, guardians as the case may be.
to file the complaint, nobody else can file it for him or her.
But a parent can only grant pardon to the offender only when
The dismissal by the justice of the peace of a husband's she is dead or otherwise incapacitated to grant it. As a rule,
complaint for adultery after the preliminary investigation is a pardon by the parent must be accompanied by the express
termination of the case. It can be reopened only upon a new pardon of the offended party herself.
complaint of the offended husband. • Rule: Pardon by the offended party who is a minor
must also have the concurrence of the parents due to
NOTE: Both the guilty parties, it both alive, must be included in the tender age of the girl.
the complaint for adultery or concubinage. They must be both • Exception: When there are no ascendants, the minor
included in the complaint even if one of them is not guilty. can solely extend a pardon.
ARTICLE 345. Civil liability of persons guilty of crimes

against chastity. - Person guilty of rape, seduction or
abduction, shall also be sentenced:
1. To indemnify the offended woman.
2. To acknowledge the offspring, unless the law should
prevent him from so doing.
3. In every case to support the offspring.
The adulterer and the concubine in the case provided for in

Articles 333 and 334 may also be sentenced, in the same
proceeding or in a separate civil proceeding, to indemnify for
damages caused to the offended spouse.
ARTICLE 346. Liability of ascendants, guardians, teachers,

or other persons entrusted with the custody of the
offended party. - The ascendants, guardians, curators,
teachers and any person who, by abuse of authority or
confidential relationships, shall cooperate as accomplices in
the perpetration of the crimes embraced in chapters, second,
third and fourth, of this title, shall be punished as principals.
Teachers or other persons in any other capacity entrusted

with the education and guidance of youth, shall also suffer the
penalty of temporary special disqualification in its maximum
period to perpetual special disqualification.
Any person falling within the terms of this article, and any
other person guilty of corruption of minors for the benefit of
another, shall be punished by special disqualification from
filling the office of guardian.
Persons who cooperate as accomplices but are punished

as principals in rape, seduction, abduction, etc.
They are:
(1) Ascendants,
(2) Guardians,
(3) Curators,
(4) Teachers, and
(5) Any other person, who cooperates as accomplice
with abuse of authority or confidential relationship.
Actually, these persons participate as accomplices in the

commission of any of the crimes mentioned, but they are held
liable as principals.
There is another crime where the accomplice is punished as

principal, and that is the crime of slight illegal detention. (Art.
268, par. 2).
CRIMINAL LAW II
REVISED PENAL CODE ARTICLE 348. Usurpation of civil status. - The penalty of
prision mayor shall be imposed upon any person who shall
usurp the civil status of another, should he do so for the
TITLE XII purpose of defrauding the offended part or his heirs;
CRIMES AGAINST CIVIL STATUS OF PERSONS otherwise, the penalty of prision correccional in its medium
and maximum periods shall be imposed.
CHAPTER ONE
SIMULATION OF BIRTHS AND Usurpation of Civil Status
USURPATION OF CIVIL STATUS This is committed when a person represents himself to be
another and assumes the filiation or the parental or conjugal
ARTICLE 347. Simulation of births, substitution of one rights of another person. (e.g. son of another).
child for another and concealment or abandonment of a • There must be intent to enjoy the rights arising from
legitimate child. — The simulation of births and the the civil status of another.
substitution of one child for another shall be punished by • Otherwise it will be Article 178 on use of fictitious
prision mayor and a fine of not exceeding Two hundred name or Article 315 on estafa.
thousand pesos (P200,000).
CHAPTER TWO
The same penalties shall be imposed upon any person who
shall conceal or abandon any legitimate child with intent to ILLEGAL MARRIAGES
cause such child to lose its civil status.
ARTICLE 349. Bigamy. - The penalty of prision mayor shall
Any physician or surgeon or public officer who, in violation be imposed upon any person who shall contract a second or
of the duties of his profession or office, shall cooperate in the subsequent marriage before the former marriage has been
execution of any of the crimes mentioned in the two next legally dissolved, or before the absent spouse has been
preceding paragraphs, shall suffer the penalties therein declared presumptively dead by means of a judgment
prescribed and also the penalty of temporary special rendered in the proper proceedings.
disqualification.
ELEMENTS
Acts Punished 1. That the offender has been Legally married.
1. Simulation of births. 2. That the marriage has Not been legally dissolved or,
2. Substitution of one child for another. in case his or her spouse is absent, the absent spouse
3. Concealing or abandoning any legitimate child with could not yet be presumed dead according to the Civil
intent to cause such child to lose its civil status. Code.
3. That he Contracts a second or subsequent marriage.
Simulation of Birth 4. That the second or subsequent marriage has all the
The simulation of birth takes place when the woman pretends essential requisites for Validity.
to be pregnant when in fact she is not, and on the day of the
supposed delivery, takes the child of another as her own. Discussion
Q. What if the second marriage is null and void? Would it absolve
In this case, the woman introduces a stranger in the family and the erring spouse of criminal liability under Article 349?
defrauds the legitimate heirs. The woman who simulates birth
and the one who furnishes the child are both responsible as Nullity of Marriage; Not a Defense in Bigamy Charge
principals. Mercado v. Tan: The fact that a first marriage is void from the
• Substituting child includes the civil status change. beginning is not a defense in a bigamy charge. As with voidable
marriage, there must be a judicial declaration of the nullity of a
Concealing or Abandoning any Legitimate Child marriage before contracting the second marriage.
In the third way of committing the crime, three requisites must
be present, namely: Article 40 of the Family Code states that, “the absolute nullity
(1) The child must be legitimate; of a marriage may be invoked for purposes of remarriage on
(2) The offender conceals or abandons such child; and the basis solely of a final judgment declaring such previous
(3) The offender has the intent to cause such child to lose marriage void.”
its civil status.
The subsequent judicial declaration of the nullity of the first
The child must be legitimate and a fully developed and living marriage was immaterial because prior to the declaration of
being, as the child born not capable of living has no status, nor the nullity, the crime had already been consummated.
can he transmit any rights whatsoever. The practice of
abandoning new-born infants and very young children at the The assertion of petitioner will only delay bigamy cases and that
door of hospitals, churches. It is in this sense that the word an accused could simply file a petition to declare previous
"abandon" is used in Art. 347. marriage void as prejudicial question.
Liability of Bigamy; Bigamy is Not a Private Crime

Among Legal Consequences Arising from a Void Marriage It can be initiated by anybody as long as the person has
Tenebro v. Court of Appeals: a void marriage is not without personal knowledge.
legal effects, in fact under Article 36 children born under this
are still legitimate children. Also, notwithstanding the Capili v. People: emphasize that the fourth element, can only
declaration of nullity under Article 36, there is still the finding exculpate the accused if declared null and void, other than the
of bigamy. grounds of bigamy. You cannot the same ground of bigamy to
be exculpated of the crime of bigamy.
Although the judicial declaration of the nullity of a marriage on
ground of psychological incapacity retroacts to the date of the ARTICLE 350. Marriage contracted against provisions of
celebration of the marriage insofar as the vinculum between the laws. – The penalty of prision correccional in its medium and
spouses is concerned, it is significant to note that said marriage maximum periods shall be imposed upon any person who,
is not without legal effects. without being included in the provisions of the next
proceeding article, shall have not been complied with or that
Among these effects is that children conceived or born before the marriage is in disregard of a legal impediment.
the judgment of absolute nullity of the marriage shall be
If either of the contracting parties shall obtain the consent of
considered legitimate. There is therefore a recognition written the other by means of violence, intimidation or fraud, he shall
into the law itself that such a marriage, although void ab initio, be punished by the maximum period of the penalty provided
may still produce legal consequences. Among these legal in the next preceding paragraph.
consequences is incurring criminal liability for bigamy.
ARTICLE 351 has been repealed by Republic Act 10665 as it is
To hold otherwise would render the State’s penal laws on an antiquated provision that perpetuates discrimination against
bigamy completely nugatory, and allow individuals to women, effectively enforces a mourning period for women
deliberately ensure that each marital contract be flawed in when no law applies to man and restricts the right of a woman
some manner, and to thus escape the consequences of to marry by making such act a crime punishable by law.
contracting multiple marriages, while beguiling throngs of
hapless women with the promise of futurity and commitment.
ARTICLE 352. Performance of illegal marriage ceremony.
- Priests or ministers of any religious denomination or sect,
People v. Aragon: That there is a possibility that an accused or civil authorities who shall perform or authorize any illegal
may be excused if the second marriage is declared null and void marriage ceremony shall be punished in accordance with the
or subsequently annulled. In this case however, the SC did not provisions of the Marriage Law.
acquit the accused for he was the one responsible for giving
the rise to the ground of annulling of the second marriage. His
Offender Must be Authorized
employment of force and intimidation in coercing a spouse
Article 352 presupposes that the priest or minister or civil
cannot be used a ground to excuse him criminal liability for
authority is authorized to solemnize marriages. If the accused
bigamy. He was the reason of the nullification of the second
is not authorized to solemnize marriage and he performs and
marriage. [Affirmative relieve must be based on equity.]
illegal marriage ceremony he is liable for usurpation of official
function under Article 177.
Santiago v. Court of Appeals: Where the second marriage was
declared null and void in view of the falsified statement made
in the affidavit of cohabitation, as it was necessary to an
exemption of requirement of marriage license. In this case, they
made false allegations in their affidavit of cohabitation for it was
only for five continuous years.
The court did not consider the nullity of the second marriage,
because the accused knowingly made the false affidavit.
People v. De Lara: old case. The accused was acquitted for he

was not responsible for the falsification for the affidavit of the
cohabitation.
Dissenting of Carpio: it would render the fourth element be

nugatory of bigamy following the ruling under Article 36.
Present Rule: Santiago v. Court of Appeals, with respect to the

issue of the validity of the second marriage. You can cite the
case of Tenebro if the case is on all fours.
CRIMINAL LAW II First Element

There must be an imputation of a crime, or of a vice or
REVISED PENAL CODE
defect, or any act, omission, condition, status or
circumstance.
TITLE XIII
CRIMES AGAINST HONOR The following are those considered being imputed in cases of
libelous statements made.
CHAPTER ONE
LIBEL 1. Imputation of a criminal act
The imputation of a crime may be implied from the acts and
Defamation statements of the accused. The imputation of the criminal
This includes libel and slander, means the offense of injuring a intention however, is not libelous. So as the expression of
person’s character, fame or reputation through false and opinion by one affected by the act of another and based on
malicious statements. It is that which tends to injure reputation actual fact is not libelous.
or to diminish the esteem, respect, good will or confidence in
the plaintiff or to excite derogatory feelings or opinions about 2. Imputation of a vice or defect
the plaintiff. When a person in an article, imputes upon the persons
mentioned therein, lascivious and immoral habits, that article is
It is the publication of anything which is injurious to the good of a libelous nature as it tends to discredit the person libeled in
name or reputation of another or tends to bring him into the minds of those reading the said article.
disrepute. Defamation is an invasion of relational interest since
it involves the opinion which others in the community may 3. Imputation of an act or omission
have, or tend to have, of the plaintiff. The words are construed In People v. Tolentino, an article signed by the accused and
in their entirely and taken in their plain, natural and ordinary published in the Philippine Herald says that the offended party
meaning, unless it appears to be used in another sense. used to borrow money without intention to pay; that he had
ordered the fixing of his teeth without paying the fees f the
Section One. – Definition, forms and services rendered by the dentist. There are imputations of an
punishment of the crime. act and omission which is defamatory.
4. Imputation of condition, status or circumstance

ARTICLE 353. Definition of libel. – A libel is public and
Calling a person, a bastard or leper within the hearing of other
malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or persons is defamatory, because there is an imputation of a
circumstance tending to cause the dishonor, discredit, or condition or status which tends to cause dishonor or contempt
contempt of a natural or juridical person, or to blacken the of the offended party.
memory of one who is dead.
Second Element
Discussion The imputation must be made publicly.
It is the reputation of the individual of person that is sought to
be protected, it has the meaning how the public, the opinion of Publication, Concept
the public with respect to the character of the person. Libel Publication is the communication of the defamatory matter to
must be public in nature. At the very least it must be published. some third person or persons. However, when sending a letter
in a sealed envelope through a messenger is not publication.
ELEMENTS OF DEFAMATION [IP-MNT] Thus, there is publication of a defamatory letter not shown to
1. That there must be an Imputation of a crime, or of a be sealed when sent to the addressee.
vice or defect, real or imaginary, or any act, omission, • There is no crime if the defamatory imputation is not
status or circumstance. published. Merely composing a libel is not actionable
2. That the imputation must be made Publicly. unless it be published.
3. That it must be Malicious. • A mere text message is sufficient publication.
4. That the imputation must be directed to a Natural or • Mercado v. CFI: A mere telegram addressed to a
juridical person, or one who is dead. superior is sufficient publication.
5. That the imputation must Tend to cause the dishonor, The requirement of publication is indispensable. At the very
discredit or contempt of the person defamed. least person it must be relayed to a third person.
There must be a defamatory imputation. Third Element

The imputation may cover: The publication must be malicious.
a. Crime allegedly committed by the offended party; The malic or ill-will must be proved – malice in fact; or may be
b. Vice or defect, real or imaginary of the offended party; taken for granted in view of the gross of the imputation or
c. Any act, omission, condition, status of, or malice in law. Malice is a term used to indicate the fact that the
circumstance relating to the offended party. offender is prompted by ill-will to injured person.
Malice in fact Bulletin Publishing v. Noel: Respondents sue for libel for the
This may be shown by proof of ill-will, hatred or purpose to article falsely and maliciously ascribed to the late Amir
injure. There is express malice or malice in fact, because it clearly Mindalano and to the rest of the extended Mindalano family an
appears that the accused has the desire to impeach the inferior status or condition as not belonging to any of the royal
reputation, integrity and honesty of the offended party. Muslim houses of Lanao provinces which respondents assert
substantially injured their good family name and reputation.
Malice in law
It is presumed from a defamatory imputation. Proof of malice What private respondent assert as defamatory is the simple
is not required, because it is presumed to exist from the failure to ascribe to the late Amir membership in a Maranao
defamatory imputation (See Article 354, par. 1). loyal house, the ascription however cannot be defamatory. The
• But where the communication is privileged, malice is court is similarly unable to see anything defamatory.
not presumed from the defamatory words. The
presumption of malice does not arise in case of the Personal hurt or embarrassment or offense, even if real, is not,
two cases of privileged communication in Article 354. however, automatically equivalent to defamation. The law
The plaintiff of prosecution must prove malice in fact against defamation protects one's interest in acquiring,
if such is a privileged communication. retaining and enjoying a reputation "as good as one's character
and conduct warrant," in the community and it is to community
*See in depth discussion of malice in fact and malice in law is standards-not personal or family standards-that a court must
discussed under Article 354 under Requirements of Publicity. refer in evaluating a publication claimed to be defamatory.
Fourth Element Uy Tioco v. Yang Shu Wen: Plaintiffs were members of a

The imputation must be directed at a natural or juridical society known as Kio Koc Sia for boycotting of Japanese goods.
person or one who is dead. having such reputations, it does not necessarily follow that
defamatory remarks, absolutely impersonal on their face,
Identification of the Offended Party is Not Required directed against a society such as the one to which they
It is not sufficient that the offended party recognized himself as belonged, would apply to them.
the person attacked or defamed; it must be shown that at least
a third person could identify him as object of the libelous There is nothing in the article indicating that the price placed
publication. upon the head of the Chinese consul was the unanimous will of
all the members of the society, or even that all the members of
Even if the obnoxious writing does not mention the libeled the society were aware of the plot. It is to be inferred that in so
party by name, the prosecution is permitted to prove by far as their influence went, the plaintiffs would have favored
evidence that the vague imputation refers to the complainant. adhering to a peaceful policy of non-dealing in Japanese
goods. That a faction within the society advocated the methods
In order to maintain a libel suit, it is essential that the victim be referred to in the publication complained of does not
identifiable, although not necessary that he be named. It is immediately condemn the entire society.
enough if by intrinsic reference, the allusion is apparent or that
if the publication contains matters of description or reference Defamatory remarks directed at a class or group of persons in
to facts and circumstances from which other reading the article general language only, are not actionable by individuals
may know the plaintiff was intended. composing the class or group unless the statements are
sweeping; and it is very probable that even then no action
Defamatory remarks directed to a group of persons is not would lie where the body is composed of so large a number of
actionable unless the statements are all-embracing or persons that common sense would tell those to whom the
sufficiently specific for the victim to be identifiable. publication was made that there was room for persons
Where the defamation is alleged to have been directed at a connected with the body to pursue an upright and law-abiding
group or class, it is essential that the statement must be so course, and that it would be unreasonable and absurd to
sweeping as to apply to every individual in that group or class, condemn all because of the actions of a part.
or sufficiently specific so that each individual in that class or
group can prove that the defamatory statement specifically Fifth Element
pointed to him, so that he bring the action separately, if need The imputation must tend to cause dishonor, discredit, or
be (Newsweek, Inc. v. Intermediate Appellate Court). contempt of the offended party.
Borjal v. Court of Appeals: The test is to be reckoned from the People v. Del Rosario on Multiple Imputations
perspective of a third person. The victim is said to be Where the alleged slanderous utterances were committed on
identifiable if the third person can identify as the object of the the same date and same place, against two persons, rise to two
libelous publication. If it is only the offended party, it is not separate prosecution with respect to each of the persons
enough. The public or the third person must be able to identify defamed and as such, it was error for the trial court to dismiss
that the libelous statement is referring to the third person. one of the information pertaining to one of the persons
You need not be named so long as you are identifiable. defamed and to treat the offense in one information.
ARTICLE 354. Requirement for publicity. – Every Malice is Not Presumed in the Following
defamatory imputation is presumed to be malicious, even if it 1. A private communication made by any person to
be true, if no good intention ad justifiable motive for making another in the performance of any legal, moral or social
it is shown, except in the following circumstances: duty;
1. A private communication made by any person to
another in the performance of any legal, moral or Requisites:
social duty; and
a. That the person who made the communication had a
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial, legal, moral, or social duty to make the
legislative or other official proceedings which are communication, or at least he had an interest to be
not of confidential nature, or of any statement, upheld;
report or speech delivered in said proceedings, or of b. That the communication is addressed to an officer or
any other act performed by public officers in the a board superior, having some interest or duty in the
exercise of their functions. matter;
c. That the statements in the communication are made
Malice in Law is Presumed from Defamatory Imputation in good faith without malice (in fact).
The opening sentence of Article 354 states the presumption of
malice in defamation, known as malice in law. When the Overcoming the Defense of Privileged Status
imputation is defamatory, the prosecution or the plaintiff need (1) Show that the defendant acted in malice;
not prove malice on the part of the defendant. (2) There is no reasonable ground to believe that the
charged is true.
The law presumes imputation is malicious. And even if the
defamatory imputation is true, the presumption of malice still Proving Existence of Malice in Fact
exists unless there is no good intention or justifiable motive for The existence of malice in fact may be shown by extrinsic
making it. evidence that the defendant bore a grudge against the offended
party, or that there was rivalry of ill-feeling between them which
Rebutting the Presumption of Malice in Law existed at the date of the publication of the defamatory
The presumption of malice is rebutted, if it is shown by the imputation. There is reckless disregard of what is false or not.
accused that:
a. The defamatory imputation is true, in case the law Synhuliong v. Rivera (2014): On April 6, 2006, at around 11:55
allows proof of the truth of the imputation; a.m., Rivera sent the following text message to one of BANFF’s official
b. It is published with good intention; and cellular phones held by Lumapas:
c. There if justifiable motive for making it.
I am expecting that[.] [G]rabe talaga sufferings ko dyan hanggang
pagkuha ng last pay ko. I don’t deserve this [because] I did my job when
Two Kinds of Privileged Communications I [was] still there. God bless ras[.] [S]ana yung pagsimba niya, alam niya
1. Absolute privileged communication; real meaning.
It is not actionable, even if its author acted in bad faith. This
includes the following: Minutes later, Rivera once again texted another message, which reads:
• Statements by members of congress in the discharge
of their officinal function; Kailangan release niya lahat [nang] makukuha ko diyan including
incentive up to the last date na nandyan ako para di na kami abot sa
• Allegations or statements made by the parties or their
labor.
counsel in their pleadings or motions or during the
hearing of judicial proceedings, as well as answers
In the case at bar, it was Lumapas who informed Rivera of either
given by witnesses in reply to questions propounded
the delay or denial of the latter's claims for payment of salaries,
to them.
benefits and incentives by Syhunliong.
• Matters of national security or military information
Rivera expressed through the subject text message her
NOTE: Even if actual malice may be proved, absolute privileged
grievances to Lumapas. At that time, Lumapas was the best
communication are not actionable.
person, who could help expedite the release of Rivera's claims.
2. Conditional or qualified privileged communication;

Prescinding from the above, the Court thus finds no error in the
These are communications which, although containing
CA' s declaration that Rivera's text message falls within the
defamatory imputations, would not be actionable unless made
ambit of a qualified privileged communication since she "was
with malice or bad faith. It has moreover, been held that there
speaking in response to duty [to protect her own interest] and
is malice when the defamer has been prompted by ill-will or
not out of an intent to injure the reputation" of Syhunliong.
spite and speaks not in response to duty, but merely to injure
Besides, "[t]here was no unnecessary publicity of the message
the reputation of the person defamed.
beyond [that] of conveying it to the party concerned."
• This is an illustration by whom a moral duty to keep
• These are two instances cited under Article 354 which
the private communication as a mere grievance
can be overcome by showing malice in fact.
2. A fair and true report, made in good faith, without any Malice in Fact
comments or remarks of any judicial, legislative, or The presumption of malice does not rise under the specified
other official proceedings which are not of confidential instances. There is need for the prosecution to prove that
nature, or of any statement, report or speech delivered actually accused used the defamatory statements maliciously.
in said proceedings, or of any other act performed by These are qualified privileged communication.
public officers in the exercise of their functions.
Difference from absolute privileged communication, the
Requisites privilege cannot be overcome by the proof of malice. Like the
a. That it is a fair and true report of an official proceeding parliamentary speech on privileged speeches in Congress,
which are not of confidential nature, or of a statement, despite showing that these speeches are made with actual
report of speech delivered in said proceedings, or of malice. Or another is like pleadings filed in court, as long as
any other act, performed by a public officer in the relevant, they are also absolutely privileged communication.
exercise of his functions;
b. That it was made in good faith Not a Ground for Dismissal
c. That it is without any comments or remarks. The mere fact that it falls under Article 354 is not enough
ground to dismiss the case for libel, it shifts the burden for the
3. Doctrine of Fair Commentaries and Doctrine of Public prosecution. Prosecution has to prove malice in fact.
Figure (even private person) (Borjal v. CA);
You cannot file a motion to quash basing on Article 354, for it
NOTE: These qualified privileged communications lose its is merely evidentiary, shifting the burden to prosecution, you
privileged character and actionable upon proof of malice. should give prosecution malice in the case.
Santos v. CA (1991): It is plainly evident from a reading of the Q. When is there malice in fact?
published article itself that it is, but a faithful reproduction of a
pleading filed before a quasi-judicial body. Borjal v. Court of Appeals: Set a standard: To be considered
malicious, the libelous statements must be shown to have been
There are no embellishments, wild imputations, distortions or written or published with the knowledge that they are false or
defamatory comments calculated to damage the reputation of in reckless disregard of whether they are false or not.
the offended parties and expose them to public contempt.
"Reckless disregard of what is false or not" means that the
What petitioner has done was to simply furnish the readers with defendant entertains serious doubt as to the truth of the
the information that a complaint has been filed against a publication, or that he possesses a high degree of awareness of
brokerage firm. their probable falsity.
Then he proceeded to reproduce that pleading verbatim in his Flor v. People: Reckless disregard on the used checks for the
column. Now this is decidely part and parcel of petitioner's job two trips to foreign by Governor Villafuerte to Israel.
as a columnist whose "beat" happens to be the stock market.
He is obligated to keep the public abreast of the current news The issue was whether there was actual malice. It was necessary
in that particular field. because the publication of the article refers to the public acts
or official acts which are considered as qualifiedly privileged.
On this crucial point, the Court is inclined to resolve all doubts Because such, there was the burden on the part of the
in favor of petitioner and declare that there is no libel. It may prosecution to show malice.
be well for us to keep in mind that the rule on privileged
communications in defamation cases developed because There was no actual malice. It was already a major political
"public policy, the welfare of society and the orderly issue in the locality at the time. Even Governor Villafuerte took
administration of justice" have demanded protection for public time to rebut the accusation against him for the P700,000. The
opinion. information was provided by one who worked in the provincial
treasurer’s office and had access to the pertinent financial
Therefore, they should not be subjected to microscopic records of the provincial government.
examination to discover grounds of malice and falsehood. Such Their informant was familiar with the procedure with regard to
excessive scrutiny would defeat the protection which the law the approval of cash advances.
throws over privileged communications.
Applied to the case at bar, we hold that the prosecution failed
The controversial publication being a fair and true report of a to meet the criterion of reckless disregard. As the records
judicial proceeding and made without malice, we find the reveal, the issue of cash advances against the coffers of the
author entitled to the protection and immunity of the rule on provincial government of Camarines Sur was a major political
privileged matters under Article 354 (2). It follows that he topic in said locality at that time. Even the private respondent
cannot be held criminally liable for libel. himself admitted during his direct testimony that he went on
radio in order to address the matter.
It was clearly a legitimate topic to be discussed not only by the There is no denying that the questioned articles dealt with
members of the media but by the public as what was involved matters of public interest.
was the dispensation of taxpayer’s money.
NOTE: A person libeled is justified to it back with another libel.
Tulfo v. People: He made statement for Atty. So as most Q. Is proof of truth a defense against libel? Can you prove the
wealthy due to his corruption on the Bureau of Customs. The statements true and defense?
SC held that there was actual malice on part of Tulfo. He made
wild accusations, he did not give specifics, he did not even ARTICLE 361. Proof of the truth. – In every criminal
specify the acts committed. The statements were made in prosecution for libel, the truth may be given in evidence to
reckless disregard of whether they were false or not. the court and if it appears that the matter charged as libelous
is true, and moreover, that it was published with good
Enumeration not Exclusive motives and for justifiable ends, the defendant shall be
In Borjal v. Court of Appeals: doctrine of fair comment and acquitted.
doctrine public figure. This is to encourage and air their own
Proof of the truth of an imputation of an act or omission not
grievances. Even private individuals of public matters. constituting a crime shall not be admitted, unless the
imputation shall have been made against the Government
Excerpt from the Case employees with respect to facts related to the discharge of
A privileged communication may be either absolutely their duties.
privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
author has acted in bad faith. An example is found in Sec. 11,
Art. VI, of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress When Proof of Truth is Admissible
or in any Committee thereof. Upon the other hand, qualifiedly 1. When the act or omission imputed constitute a crime
privileged communications containing defamatory imputations regardless of whether the offended party is a private
are not actionable unless found to have been made without individual or public officer.
good intention or justifiable motive. To this genre belong 2. When the offended party is a Government employee,
"private communications" and "fair and true report without any even if the act or omission imputed does not
comments or remarks." constitute a crime, provided, it is related to the
discharge of his duties.
Indisputably, petitioner Borjal’s questioned writings are not
within the exceptions of Art. 354 of The Revised Penal Code for, Proof of Truth
as correctly observed by the appellate court, they are neither The proof of truth of the accusation cannot be made to rest
private communications nor fair and true report without any upon mere hearsay, rumors or suspicion. It must rest upon
comments or remarks. However, this does not necessarily mean positive, direct evidence upon which a definite finding may be
that they are not privileged. made by the court. But probable cause or belief in the truth of
the statement is sufficient.
To be sure, the enumeration under Art. 354 is not an exclusive
list of qualifiedly privileged communications since fair ARTICLE 355. Libel committed by means of writings or
commentaries on matters of public interest are likewise similar means. – A libel committed by means of writing,
privileged. printing, lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any
To reiterate, fair commentaries on matters of public interest similar means, shall be punished by prision correccional in its
are privileged and constitute a valid defense in an action minimum and medium periods or a fine ranging from Forty
for libel or slander. The doctrine of fair comment means that thousand pesos (P40,000) to One million two hundred
thousand pesos (P1,200,000), or both, in addition to the civil
while in general every discreditable imputation publicly made
action which may be brought by the party.
is deemed false, because every man is presumed innocent until
his guilt is judicially proved, and every false imputation is
deemed malicious, nevertheless, when the discreditable Penalties
imputation is directed against a public person in his public Note that while Article 353 and 354 merely define defamation
capacity, it is not necessarily actionable. and privileged communication, Article 355 prescribes the
penalty for libel.
In order that such discreditable imputation to a public official
may be actionable, it must either be a false allegation of fact or NOTE: Defamation made in television program is libel, but
a comment based on a false supposition. If the comment is an defamation through amplifier is not libel but merely oral
expression of opinion, based on established facts, then it is defamation or slander.
immaterial that the opinion happens to be mistaken, as long as • News programs are covered.
it might reasonably be inferred from the facts. • Fine is preferred in libel cases.
ARTICLE 356. Threatening to publish and offer to prevent ARTICLE 358. Slander. – Oral defamation shall be punished
such publication for a compensation. – The penalty of by arresto mayor in its maximum period to prision
arresto mayor of a fine of from Forty thousand pesos correccional in its minimum period if it is of a serious and
(P40,000) to Four hundred thousand pesos (P400,000), or insulting nature; otherwise the penalty shall be arresto menor
both, shall be imposed upon any person who threatens or a fine not exceeding Twenty thousand pesos (P20,000).
another to publish a libel concerning him or the parents,
spouse, child, or other members of the family of the latter or
upon anyone who shall offer to prevent the publication of What is Slander?
such libel for a compensation or money consideration. It is an oral defamation. Slander is libel committed by oral
means, instead of writing. The term oral defamation or slander
as now understood as the speaking of based and defamatory
Acts Punished under Article 356
words which tend to prejudice another in his reputation, office,
1. By Threatening another to publish a libel concerning
trade, business or means of livelihood.
him, or his parents, spouse, child or other members of
his family;
If it is made orally, it is termed as slander under Article 358, oral
2. By Offering to prevent the publication of such libel for
defamation may either be grave or simple. Grave slander or
compensation or money consideration.
simple slander depending on the availing circumstances,
relationship and expressions used as well as special
Blackmail, Defined
circumstances.
It may have defined as any unlawful extortion of money by
threats or accusation or exposure. Also termed as hush money.
Two Kinds of Oral Defamation or Slander
Aside from being punishable under Article 356, it may be
1. Simple slander;
punishable under light threats.
2. Grave slander; when it is of serious and insulting
nature.
ARTICLE 357. Prohibited publication of acts referred to in
the course of official proceedings. – The penalty of arresto Factors that Determine the Gravity of Oral Defamation
mayor or a fine of Forty thousand pesos (₱40,000) to Two
1. Upon the expressions of the accused;
hundred thousand pesos (₱200,000), or both, shall be
imposed upon any reporter, editor or manager of a 2. Personal relations of the accused and offended party;
newspaper, daily or magazine, who shall publish facts 3. Circumstances surrounding the case.
connected with the private life of another and offensive to the
honor, virtue and reputation of said person, even though said Slander Need Not be Heard by the Offended Party
publication be made in connection with or under the pretext There is oral defamation, even if other persons and not the
that it is necessary in the narration of any judicial or offended party heard the slanderous words, because a man’s
administrative proceedings wherein such facts have been
reputation is the estimate which others hold him, not the good
mentioned.
opinion which he has of himself.
Elements Reyes v. People: shouting putangina mo against a person is

1. That the offender is a Reporter, editor or manager of not a ground for oral defamation. Putangina is a common
a newspaper daily or magazine; expression not really to slander, but to express anger and of
2. That he publishes Facts connected with the private displeasure. It is seldom taken literally.
life of another;
3. That such facts are Offensive to the honor virtue and It has lost its literal meaning in the common usage of the word,
reputation of said person. this case was ruled decades ago. Putangina mo is not
considered a ground.
NOTE: The prohibition applies even though said publication be
made in connection with or under the pretext that it is De Leon v. People (2016): Simple slander or slight oral
necessary in the narration of any judicial or administrative defamation; jogging buddies, the defamatory was “walang hiya
proceedings wherein such facts have been mentioned. ka mangogotong na police ka,” it was in the context in a gun
pointing statement, which led him to say the statement. While
Gag Law they are defamatory, the gravity is merely slight, on account of
The provisions of Article 357 constitute the so called Gag Law. the circumstances.
Newspaper reports on cases pertaining to adultery, divorce,
issues about the legitimacy of children will necessary be barred Victorio v. Court of Appeals. The stature of a lawyer cannot
from publication. This article requires two things to constitute be termed as tunaw na utak, swapang and estafador. In the
a violation of the prohibition: instant case, appellant-petitioner admitted having uttered the
a. That the article published contains facts connected defamatory words against Atty. Vivencio Ruiz.
with the private life of the individual;
b. That such facts are offensive to the honor, virtue and Among others he called Atty. Ruiz, "estapador", which
reputation of said person. attributes to the latter the crime of estafa, a serious and
insulting imputation.
In addition, the fact that the offended party is a lawyer, the Section Two. – General provisions
totality of such words as "kayabang", "tunaw ang utak",
"swapang at estapador", imputed against him has the import of ARTICLE 360. Persons responsible. – Any person who shall
charging him with dishonesty or improper practice in the publish, exhibit, or cause the publication or exhibition of any
performance of his duties, hence, actionable per se. defamation in writing or by similar means, shall be
responsible for the same.
ARTICLE 359. Slander by deed. – The penalty of arresto
The author or editor of a book or pamphlet, or the editor or
mayor in its maximum period to prisión correccional in its
business manager of a daily newspaper, magazine or serial
minimum period or a fine ranging from Twenty thousand
publication, shall be responsible for the defamations
pesos (₱20,000) to One hundred thousand pesos (₱100,000)
contained therein to the same extent as if he were the author
shall be imposed upon any person who shall perform any act
thereof.
not included and punished in this title, which shall cast
dishonor, discredit or contempt upon another person. If said
The criminal and civil action for damages in cases of written
act is not of a serious nature. the penalty shall be arresto
defamations as provided for in this chapter, shall be filed
menor or a fine not exceeding Twenty thousand pesos
simultaneously or separately with the court of first instance
(₱20,000).
of the province or city where the libelous article is printed
and first published or where any of the offended parties
What is Slander by Deed? actually resides at the time of the commission of the offense:
It is a crime against honor which is committed performing an Provided, however, That where one of the offended parties is
a public officer whose office is in the City of Manila at the time
act which casts dishonor, discredit, or contempt upon another
of the commission of the offense, the action shall be filed in
person, like slapping in the face. the Court of First Instance of the City of Manila, or of the city
• It refers to performance of an act, not use of words. or province where the libelous article is printed and first
published, and in case such public officer does not hold office
ELEMENTS: in the City of Manila, the action shall be filed in the Court of
1. That the offender performs any act Not included in First Instance of the province or city where he held office at
any other crime against honor; the time of the commission of the offense or where the
2. That such act is performed in the Presence of another libelous article is printed and first published and in case one
of the offended parties is a private individual, the action shall
person or persons.
be filed in the Court of First Instance of the province or city
3. That such act casts Dishonor, discredit, or contempt where he actually resides at the time of the commission of the
upon the offended party. offense or where the libelous matter is printed and first
published: Provided, further, That the civil action shall be filed
Two Kinds of Slander by Deed in the same court where the criminal action is filed and vice
a. Simple slander by deed; versa: Provided, furthermore, That the court where the
b. Grave slander by deed, which is of a serious nature. criminal action or civil action for damages is first filed, shall
acquire jurisdiction to the exclusion of other courts: And,
provided, finally, That this amendment shall not apply to
Supplemental Annotations: cases of written defamations, the civil and/or criminal
• Slapping the face of another is slander by deed if the actions which have been filed in court at the time of the
intention of the accused is to cause shame and effectivity of this law.
humiliation;
• Fighting the offended party with intention to insult Preliminary investigation of criminal action for written
him is slander by deed; defamations as provided for in the chapter shall be conducted
by the provincial or city fiscal of the province or city, or by the
• Pointing a dirty finger with intention.
municipal court of the city or capital of the province where
such action may be instituted in accordance with the
Unjust Vexation, Slander by Deed, Acts of Lasciviousness provisions of this article.
The common denominator present in unjust vexation, slander
by deed, an act of lasciviousness is irritation and annoyance. No criminal action for defamation which consists in the
Without any other concurring factor, the offense would be imputation of a crime which cannot be prosecuted de oficio
merely unjust vexation because unjust vexation is equated with shall be brought except at the instance of and upon complaint
anything that annoys or irritates another without justification. expressly filed by the offended party.
If in addition to the irritation or annoyance, there was attendant Persons Responsible for Libel
publicity and dishonor or contempt, the offense would be 1. The person who publishes, exhibits, or causes the
slander by deed. However, if, in addition to the annoyance or publication or exhibition of any defamation writing;
irritation, there was present any of the circumstances provided 2. The author or editor of a book or pamphlet;
for in Article 335 with lewd designs it can be acts of 3. The editor or business manager of a daily newspaper
lasciviousness. or magazine or serial publication
4. The owner of a printing plant which publishes a
NOTE: If maltreatment humiliates it is not Article 266(3), but it libelous article with consent and other persons who
can be slander by deed. participate in or have connection with his publication
Tulfo v. People: The publisher and editor claimed that they CYBER LIBEL UNDER RA 10175
have not participation in the editing of the publication of the Section 4(c)(4). Libel. - The unlawful or prohibited acts of libel
article of Tulfo. as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other
The claim that they had no participation does not shield them similar means which may be devised in the future.
from liability. The provision in the RPC does not provide
absence of participation as a defense, but rather plainly and Disini v. SOJ: GR 203335
specifically states the responsibility of those involved in The petition here questions the constitutionality of the
publishing newspapers and other periodicals. provisions however, the court agrees that libel is not a
constitutionally protected speech and that the government has
It is not a matter of whether or not they conspired in preparing an obligation to protect private individuals from defamation.
and publishing the subject articles, because the law simply so Indeed, cyber-libel is actually a new crime since Article 353 in
states that they are liable as they were the author. relation to Article 355 of the RPC already punishes it. In effect,
Section 4(c)(4) above merely affirms that online defamation
As Tulfo cannot simply say that he is not liable because he did constitutes similar means for committing libel.
not fulfill his responsibility as a journalist, the other petitioners
cannot simply say that they are not liable because they did not Q. How about the issue on the higher penalty on cyber libel. How
fulfill their responsibilities as editors and publishers. could you justify the increase?
An editor or manager of a newspaper, who has active charge Section 6 merely makes commission of existing crimes through
and control of its management, conduct, and policy, generally the internet a qualifying circumstance. As the Solicitor General
is held to be equally liable with the owner for the publication points out, there exists a substantial distinction between crimes
therein of a libelous article. committed through use of information and communications
technology and similar crimes committed using other means.
On the theory that it is the duty of the editor or manager to In using the technology in question, the offender often evades
know and control the contents of the paper, it is held that said identification and is able to reach far more victims or cause
person cannot evade responsibility by abandoning the duties greater harm. The distinction, therefore, creates a basis for
to employees, so that it is immaterial whether or not the editor higher penalties for cybercrimes.
or manager knew the contents of the publication
How about those who like or comment these posts?
Rule on Private Crimes on Libel (Last Paragraph) They are not liable, they are still not the author, they are not
No criminal action for defamation which consists in the considered as authors of the libel. Generally, liking or
imputation of a crime which cannot be prosecuted de oficio shall commenting it can be caused by innocent click of the mouse. If
be brought except at the instance of an upon complaint expressly the comment however, constitutes a defamatory statement
filed by the offended party. altogether it can have prosecuted as cyber-libel. The person
imputed a new basis for a vice or defect of the person.
People v. Orcullo: There is also an implication that the
offended party not only an adulterer but also a prostitute.
ARTICLE 362. Libelous remarks. – Libelous remarks or
"Hostess ug nangabit, bisan unsa lang oten and nakapaslak.” comments connected with the matter privileged under
"A hostess and has a paramour, any kind of penis had provisions of Article 354, if made with malice, shall not
penetrated your vagina" exempt the author thereof nor the editor or managing editor
of a newspaper from criminal liability.
It must be noted that it is only when derogatory remarks clearly
and categorically reflect the elements constituting adultery NOTE: Libelous remarks or comments on matter privileged,
would the complaint for libel by the offended party be and malice in fact, do not exempt the author and editor. Thus,
necessary to commence prosecution. if remarks and comments are made upon a matter privileged,
and malice in fact is proved, the author and editor are liable.
In this case, however, the derogatory remarks of accused-
respondent, not only do not clearly show the elements of There is a liablity of newspaper reporter for distorting facts
adultery, but on the contrary, such remarks indubitably impute connected with official proceedings. The reporter for a
the crime of prostitution. Therefore, the information for libel newspaper publication, in publishing what passes in a court of
can be filed without the complaint of the offended party. If it is justice, must publish the whole case, and not merely state the
ambiguous, it can be initiated even without the participation of conclusion which he himself draws from the evidence.
the offended party.
Thus, the author or the editor of a publication who distorts,
Indeed, the words quoted in the information are indubitably an mutilates, or discolors the official proceedings reported by him
imputation of the crime of prostitution which can be or add comments is guilty of the crime libel published in
prosecuted de oficio. connection with a privileged matter.
CHAPTER TWO It should be observed that without detaining, investigating and

INCRIMINATORY MACHINATIONS searching Marcial it would have been impossible, if not difficult
for the accused to plant the marked bill in his pocket.
ARTICLE 363. Incriminating innocent person. – Any person
who, by any act not constituting perjury, shall directly Besides, if the accused simply held Marcial and planted in his
incriminate or impute to an innocent person the commission pocket the bill without arresting him, they could not have surely
of a crime, shall be punished by arresto mayor. and easily discovered what they were up to.
ELEMENTS: Indeed, the accused had to arrest Marcial, even if the absence
1. That the offender Performs an act. of the valid reason, so that under the semblance of a police
2. That by such act he directly Incriminates or imputes investigation they could get the money in his pockets and
to an innocent person the commission of a crime. include in it the marked money.
3. That such act does not constitute Perjury.
In short, the accused had to arrest Marcial so that he could be
NOTE: This article is limited to planting evidence and the like detained and pretending to investigate him, search his person
which tend directly to cause false prosecution. and thereby have possibly accomplished their purpose,
because Marcial would have the opportunity of planting the
False Accusation can be Defamation or Perjury, not 363. marked bill among his belongings during the arrest.
Article 363 of the RPC which penalizes any person who by any
act not constituting perjury shall directly incriminate or impute Thus, the crime is a complex crime of Incriminating an
to an innocent person the commission of a crime, does not Innocent Person through Unlawful Arrest.
apply to false accusations but to acts tending directly to
cause false accusations, such as planting of evidence. ARTICLE 364. Intriguing against honor. – The penalty of
arresto menor or fine not exceeding Twenty thousand pesos
From Perjury (P20,000) shall be imposed for any intrigue which as for its
Incriminating an innocent person is committed by performing principal purpose to blemish the honor or reputation of a
person.
an act by which the offender directly incriminates or imputes to
an innocent person the commission of a crime; in perjury, the
gravamen of the offense is the imputation itself falsely made How Committed
before an officer. It is committed by any person who shall make any intrigue
which has for its principal purpose to blemish the honor or
Incriminating an innocent person is limited to act of planting reputation of another person.
evidence and the like, in order to incriminate and innocent
person; while perjury is giving of false statement under oath or Intriguing Against Honor is Any Scheme or
the making of a false affidavit imputing person of a crime. Plot by Means Which Consist of Some Trickery
It is a scheme or plot designed to blemish the reputation. It is
From Defamation akin to slander by deed, but the offender does not avail
In incriminatory machinations, the offender does not avail directly of written or spoken words, pictures or caricatures to
himself of written or spoke words in besmirching reputation, as ridicule his victim but some plot for such effect.
would be in the case of defamation.
Difference from Defamation
In defamation, the imputation made by the offender must be Defamation is defined as the public and malicious imputation
public and malicious and calculated to cause dishonor, discredit of a crime, or of a vice or defect, real or imaginary, or any act or
or contempt of the aggrieved party; this is not so in the case of omission, condition or status, or circumstance tending to cause
incriminatory machinations. the dishonor, discredit, or contempt of a person.
Q. Is there a complex crime of Incriminating an Innocent Person Having this in mind, the case is of defamation and not intriguing
through Unlawful Arrest? against honor which may be committed by means which consist
some tricky and secret plot.
People v. Alagao: The allegation in the information that the
accused committed the complex crime of incriminatory Difference from Slander
machinations thru unlawful arrest and the allegation that the Where the source of the information can be pinpointed and
act of planting the incriminatory evidence took place during the definitely determined, the act is not intriguing against honor,
supposed investigation after the lawful arrest. The Solicitor but clearly one of slander.
General argued that:
But where source of the author of the derogatory information
Under the circumstances of the case, the accused had to arrest cannot be determined and the defendant borrows the same
Marcial because it was the only way they could with facility and without subscribing the truth thereof, passes it to others,
detain him and search thus commingle with marked bill. the act is intriguing against honor.
REPUBLIC ACT 4200 The nature of the conversations is immaterial to a violation of

ANTI-WIRE TAPPING ACT the statute. The substance of the same need not be specifically
alleged in the information. The mere allegation that an
Acts Penalized individual made a secret recording of a private communication
It shall be unlawful for any person, not being authorized by all by means of a tape recorder would suffice to constitute an
the parties to any private communication or spoken word: offense under Section 1 of R.A. 4200.
1. To tap any wire or cable;
2. By using any other device or arrangement, to secretly Petitioner's contention that the phrase "private
overhear, intercept, or record such communication or communication" in Section 1 of R.A. 4200 does not include
spoken word by using a device commonly known as a "private conversations" narrows the ordinary meaning of the
dictaphone or dictagraph or detectaphone or walkie- word "communication" to a point of absurdity. In its ordinary
talkie or tape recorder, however otherwise described. signification, communication connotes the act of sharing or
imparting signification, communication connotes the act of
It shall also be unlawful for any person, be he a participant or sharing or imparting, as in a conversation, or signifies the
not in the act or acts penalized in the next preceding sentence: "process by which meanings or thoughts are shared between
1. To knowingly possess any tape record, wire record, individuals through a common system of symbols (as language
disc record, or any other such record, or copies signs or gestures)."
thereof, of any communication or spoken word
secured either before or after the effective date of this These definitions are broad enough to include verbal or non-
Act in the manner prohibited by this law; or verbal, written or expressive communications of "meanings or
2. To replay the same for any other person or persons; thoughts" which are likely to include the emotionally-charged
or exchange between petitioner and private respondent, in the
3. To communicate the contents thereof, either verbally privacy of the latter's office.
or in writing, or
4. To furnish transcriptions thereof, whether complete or In this case, the use of tape recorder falls under the devices
partial, to any other person. enumerated in the law (Dictaphone, Dictagraph, Detectaphone,
Walkie-talkie, and Tape recorder).
Provided, That the use of such record or any copies thereof as
evidence in any civil, criminal investigation or trial of offenses Therefore, the act of recording through the tape constitutes an
mentioned in section 3 hereof, shall not be covered by this offense. The instant case turns on a different note, because the
prohibition. (Inadmissible as evidence). applicable facts and circumstances pointing to a violation of
R.A. 4200 suffer from no ambiguity, and the statute itself
Gaanan v. IAC: The phrase “any other device or arrange” does explicitly mentions the unauthorized "recording" of private
not cover an extension line. The law refers to a "tap" of a wire communications with the use of tape-recorders as among the
or cable or the use of a "device or arrangement" for the purpose acts punishable.
of secretly overhearing, intercepting, or recording the
communication. There must be either a physical interruption
through a wiretap or the deliberate installation of a device or
arrangement in order to overhear, intercept, or record the
spoken words.
An extension telephone cannot be placed in the same category

as a dictaphone, dictagraph or the other devices enumerated in
Section 1 of RA No. 4200 as the use thereof cannot be
considered as "tapping" the wire or cable of a telephone line.
The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use.
Ramirez v. Court of Appeals

A civil case was filed by petitioner Ramirez alleging that the
private respondent, Garcia, allegedly insulted and humiliated
her during a confrontation in the office, in an offensive manner
contrary to morals, good customs and public policy.
To support her claim, petitioner produced verbatim transcript

of the event and sought moral damages. In response, private
respondent filed a criminal case alleging violation of RA 4200
for secretly taping the confrontation. The issue raised was the
coverage of the law of recording conversation by tape recorder.
TITLE XIV
ARTICLE 365. Imprudence and Negligence
Intentional and culpable felonies is not merely a means in the

commission of felony, it is a felony itself as discussed in the case
of Ivler v. Modesto-San Pedro, Article 365 is not a mere
modality it is a felony in itself.
• There are fixed penalties under Article 365, depending

on the gravity of the felony committed.
• There are several felonies which cannot be committed
by means of imprudence or negligence.
• The reduced penalty would have been a mitigating
circumstances, but the lawmakers made a separate
title.
The basis is the mental attitude or condition, lack of care or lack

of foresight. The consequences are merely material for the
imposable penalty.
• How then do you impose the penalty?
Ivler v. Modesto-San Pedro: the consequence is for the

purpose for determining penalties, the criminal liability stems
from the fact of negligence and imprudence.
Structurally, these nine paragraphs are collapsible into four

sub-groupings relating to (1) the penalties attached to the
quasi-offenses of "imprudence" and "negligence" (paragraphs
1-2); (2) a modified penalty scheme for either or both quasi-
offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial
courts in imposing penalties (paragraph 5); and (4) the
definition of "reckless imprudence" and "simple imprudence"
(paragraphs 7-8).
The penalties under Article 365 are fixed depending whether it

is a grave, less grave or a light felony, not on the imposable
penalty on the intentional felonies.
You read this in consonance with Anti-Drunk Driving Act.
CRIMINAL LAW II Simple imprudence consists in the lack of precaution

REVISED PENAL CODE displayed in those cases in which the damage impending to
be caused is not immediate nor the danger clearly manifest.
TITLE XIV The penalty next higher in degree to those provided for in this
QUASI-OFFENSE article shall be imposed upon the offender who fails to lend
on the spot to the injured parties such help as may be in his
hands to give.
SOLE CHAPTER
CRIMINAL NEGLIGENCE
Four Ways of Committing Quasi-Offenses
1. By committing through Reckless imprudence, any act
ARTICLE 365. Imprudence and negligence. — Any person which, had it been intentional, would constitute a
who, by reckless imprudence, shall commit any act which, grave or less grave felony or light felony.
had it been intentional, would constitute a grave felony, shall
2. By committing through Simple imprudence or
suffer the penalty of arresto mayor in its maximum period to
prisión correccional in its medium period; if it would have negligence an act which would otherwise constitute a
constituted a less grave felony, the penalty of arresto mayor grave or less grave felony.
in its minimum and medium periods shall be imposed; if it 3. By causing Damage to the property of another
would have constituted a light felony, the penalty of arresto through reckless imprudence or simple imprudence or
menor in its maximum period shall be imposed. negligence.
4. By causing through simple imprudence or negligence
Any person who, by simple imprudence or negligence, shall
some Wrong which, if done maliciously, would have
commit an act which would otherwise constitute a grave
felony, shall suffer the penalty of arresto mayor in its medium constituted a light felony.
and maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its minimum NOTE: If the act performed would not constitute a felony
period shall be imposed. (grave, less grave or light), Article 365 is not applicable. There is
no crime committed, because it will neither be an intentional
When the execution of the act covered by this article shall felony nor a culpable felony.
have only resulted in damage to the property of another, the
offender shall be punished by a fine ranging from an amount
Quasi-Offenses are Distinct Species of Crime
equal to the value of said damages to three (3) times such
value, but which shall in no case be less than Five thousand Ivler v. Modesto-San Pedro: The notion that quasi-offenses,
pesos (₱5,000). whether reckless or simple, are distinct species of crime,
separately defined and penalized under the framework of our
A fine not exceeding Forty thousand pesos (₱40.000) and penal laws, is nothing new. As early as the middle of the last
censure shall be imposed upon any person, who, by simple century, we already sought to bring clarity that "reckless
imprudence or negligence, shall cause some wrong which, if imprudence is not a crime in itself but simply a way of
done maliciously, would have constituted a light felony.
committing it” on three points of analysis:
In the imposition of these penalties, the court shall exercise (1) the object of punishment in quasi-crimes (as opposed
their sound discretion, without regard to the rules prescribed to intentional crimes);
in Article 64. (2) the legislative intent to treat quasi-crimes as distinct
offenses (as opposed to subsuming them under the
The provisions contained in this article shall not be mitigating circumstance of minimal intent) and;
applicable; (3) the different penalty structures for quasi-crimes and
1. When the penalty provided for the offense is equal
intentional crimes:
to or lower than those provided in the first two (2)
paragraphs of this article, in which case the court
shall impose the penalty next lower in degree than The proposition (inferred from Art. 3 of the RPC) that "reckless
that which should be imposed in the period which imprudence" is not a crime in itself but simply a way of
they may deem proper to apply. committing it and merely determines a lower degree of criminal
2. When, by imprudence or negligence and with liability is too broad to deserve unqualified assent. There are
violation of the Automobile Law, the death of a crimes that by their structure cannot be committed through
person shall be caused, in which case the defendant imprudence: murder, treason, robbery, malicious mischief, etc.
shall be punished by prisión correccional in its
medium and maximum periods.
In truth, criminal negligence in our Revised Penal Code is
Reckless imprudence consists in voluntarily, but without treated as a mere quasi offense, and dealt with separately from
malice, doing or failing to do an act from which material willful offenses. It is not a mere question of classification or
damage results by reason of inexcusable lack of precaution on terminology. In intentional crimes, the act itself is punished; in
the part of the person performing or failing to perform such negligence or imprudence, what is principally penalized is
act, taking into consideration his employment or occupation, the mental attitude or condition behind the act, the
degree of intelligence, physical condition and other
dangerous recklessness, lack of care or foresight, the
circumstances regarding persons, time and place.
imprudencia punible.
Were criminal negligence but a modality in the commission of Imprudence or Negligence, Distinguished
felonies, operating only to reduce the penalty therefor, then it Imprudence indicates a deficiency of action; negligence
would be absorbed in the mitigating circumstances of Art. 13, indicates a deficiency of perception. Hence failure in precaution
specially the lack of intent to commit so grave a wrong as the is termed as imprudence, and failure in advertence is known as
one actually committed. Furthermore, the theory would require negligence. The wrongful acts may be avoided on two levels:
that the corresponding penalty should be fixed in proportion to 1. By paying proper attention and using due diligence in
the penalty prescribed for each crime when committed willfully. foreseeing them;
For each penalty for the willful offense, there would then be a 2. By taking necessary precaution once foreseen. Failure
corresponding penalty for the negligent variety. to do first is negligence, failure to do second is
imprudence.
But instead, our Revised Penal Code (Art. 365) fixes the
penalty for reckless imprudence at arresto mayor maximum, RECKLESS IMPRUDENCE
to prision correccional [medium], if the willful act would Reckless imprudence consists in voluntarily, but without malice,
constitute a grave felony, notwithstanding that the penalty for doing or failing to do an act from which material damage
the latter could range all the way from prision mayor to death, results by reason of inexcusable lack of precaution on the part
according to the case. It can be seen that the actual penalty of the person performing or failing to perform such act, taking
for criminal negligence bears no relation to the individual into consideration his employment or occupation, degree of
willful crime, but is set in relation to a whole class, or series, intelligence, physical condition, and other circumstances
of crimes. regarding person, time and place.
This explains why the technically correct way to allege quasi- ELEMENTS OF RECKLESS IMPRUDENCE
crimes is to state that their commission results in damage, 1. That the offender does or fails to do an Act;
either to person or property. 2. Doing of or the failure to do that act is Voluntary;
3. That it be Without malice;
Nature of Quasi-Offenses (People v. Cano, 1966) 4. That Material damage results;
When a person by reckless imprudence caused the death of 5. That there is Inexcusable lack of precaution on the
another, the strict technical offense is more accurately, reckless part of the offender, taking into consideration –
imprudence resulting in homicide. a. His Employment or occupation;
b. Degree of intelligence, physical condition;
When a person, by simple imprudence or negligence, caused c. Other circumstances regarding persons, time
damage to the property of another, the strict technical offense and place.
is more accurately, simple imprudence causing damages to
property. Illustrations:
Doing an act: Defendant went out hinting with companions,
Criminal negligence in our Revised Penal Code is treated as a while hunting at night, defendant shot at one of his companions
mere quasi-offense, and dealt separately from wilfull offenses. in the belief that he was a deer. Defendant committed homicide
through reckless imprudence (People v. Ramirez).
It is not a mere question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or Failing to do an act: A parked his car on a sloping ground
imprudence, what is principally penalized is the mental attitude without putting the handbrake or obstacle on the rear wheels
or condition behind the act, the dangerous recklessness, lack of to prevent it from moving backward. There were children
care or foresight, the "imprudencia punible." playing on the lower part of the ground. Because of such failure,
it suddenly moved backward running over one of the children
Much of the confusion has arisen from the common use of such who was killed.
descriptive phrases as "homicide through reckless
imprudence", and the like; when the strict technical offense is Test of Negligence
more accurately, "reckless imprudence resulting in homicide", The test for determining whether a person is negligent in doing
or "simple imprudence causing damages to property." an act whereby injury or damage results to the person or
property of another is this: Would a prudent man, in the position
our Revised Penal Code (Art. 365) fixes the penalty for reckless of the person to whom negligence is attributed, foresee harm to
imprudence at arresto mayor maximum, to prision correccional the person injured as a reasonable consequence of the course
minimum if the wilfull act would constitute a grave felony, about to be pursued?
notwithstanding that the penalty for the latter could range all
the way from prision mayor to death, according to the case. If so, the law imposes a duty on the actor to refrain from that
course or to take precaution against its mischievous results, and
It can be seen that the actual penalty for criminal negligence the failure to do so constitutes negligence. Reasonable
bears no relation to the individual wilfull crime, but is set in foresight of harm, followed by the ignoring of the admonition
relation to a whole class, or series, of crimes. born of this provision, is the constitutive fact in negligence
(Picart v. Smith).
Reckless Imprudence and Force Majeure Reckless Imprudence Resulting to Homicide

Where immediate personal harm or damage to property, Arising from Medical Malpractice
preventable by the exercise of reasonable care, is threatened
upon another by reason of the course of conduct about to be Cabugao v. People (2014)
pursued by the actor, his failure to use reasonable care to On June 14, 2000 at 4PM, 10-year-old JR complained of abdominal pain
prevent injury constitutes reckless negligence. to his mother. At 5PM, JR’s parents brought him to the clinic of Dr.
Cabugao, a general practitioner. Dr. Cabugao gave JR medicines for the
pain and told JR’s parents to call him up if his stomach pains continue.
The expression force majeure has reference to an event which
Due to persistent abdominal pains at 4:30AM, the next day, they
cannot be foreseen, or which being foreseen is inevitable. It returned to Dr. Cabugao, who advised them to bring JR to another
implies an extraordinary circumstance independent of the will hospital for confinement.
of the actor.
He was admitted to the hospital; blood samples were taken, and
NOTE: A tire blow-out is not a force majeure for it was a diagnostic ultrasound was conducted on JR’s lower abdomen which
mechanical defect and failure to detect such is negligence. made a finding of inflammatory process wherein appendiceal or
periappendiceal pathology cannot be excluded. Dr. Cabugao did a
rectal examination and since the initial impression was acute
Q. What if suddenly the brakes do not work and there is car
appendicitis, he referred the case to Dr. Ynzon, a surgeon. Dr. Ynzon
collision leading to injury? went to the hospital and read the CBC and ultrasound results, and
ordered the administration of massive antibiotics and pain reliever to
This rule throws upon the drivers of motor vehicles the entire JR. Thereafter, JR was placed under observation for 24 hours.
responsibility of the soundness of the vehicles they are driving
and compels them to know and to be certain about it. The next morning, JR complained again of abdominal pain and his
parents noticed a swelling in his scrotum. In the afternoon of the same
A contrary rule would expose the pedestrians and other day, JR vomited out greenish stuff three time and had watery bowels
also three times. The nurses on-duty related JR’s condition to Dr. Ynzon
motorists to increasing perils and would make it easier for the
who merely gave orders via telephone. Dr. Ynzon continued the
drivers at fault to escape liability by the simple expedient of medications to alleviate JR’s abdominal spams and diarrhea.
disclaiming knowledge of the defects of their vehicles.
• However, when the driver could not have known the By midnight, JR again vomited twice, had loose bowel movements and
defect of the brakes, then only he is not liable. was unable to sleep. The following morning, JR’s condition continued
to deteriorate that by 2PM his temperature soared to 42 degrees C and
Failure or Doing of the Act Must be Voluntary eventually died.
Thus, if the accused is compelled to do the act or is prevented
HELD: Dr. Ynzon failed to observe the required standard of care
from doing the act by means of irresistible force or because of
expected from doctors. It was sufficiently established that to prevent
uncontrollable fear (Art. 12, pars. 5 and 6), or if he is an insane certain death, it was necessary to perform surgery on JR immediately.
or a minor under nine years old (Art. 12, pars. 1 and 2) he cannot Dr. Ynzon revealed want of reasonable skill and care in attending to the
be held liable for criminal negligence. needs of JR by neglecting to monitor effectively the developments and
changes on JR’s condition during the observation period, and to act
Legally, there can be no negligence on the part of a seven-year- upon the situation after the 24-hour period when his abdominal pain
old child who is incapable of acting with discernment. persisted, and his condition worsened.
Lamentable, Dr. Ynzon appeared to have visited JR briefly only during

Material Damage Results
regular rounds in the mornings. He was not there during crucial times
Criminal negligence presupposes lack of intention to commit on June 16, 2000 when his condition started to deteriorate until JR’s
the wrong done, but that it came about due to imprudence on death. As the attending surgeon, he should be primarily responsible in
the part of the offender. monitoring the condition of JR, as he is in the best position considering
his skills and experience to know if the patient’s condition had
Thus, once intent to kill is proved, the killing of a person is not deteriorated.
homicide through imprudence, but plain homicide under Art.
249. Also, once intent to cause damage due to hate, revenge, While the resident-doctors-on duty could likewise monitor the patient’s
condition, he is the one directly responsible for the patient as the
or other evil motive is shown, the crime is not damage to
attending surgeon. Indeed, it is reckless and gross negligence of duty
property through imprudence, but malicious mischief. to relegate his personal responsibility to observe the condition of the
patient. Again, acute appendicitis was the working diagnosis, and with
Basis for Determining Inexcusable Lack of Petition the emergence of graver symptoms after the 24-hour observation, Dr.
In determining the inexcusable lack of precaution on the part Ynzon ruled out surgery for no apparent reason.
of the offender, the court must consider the:
(1) employment or occupation Among the elements constitutive of reckless imprudence, what perhaps
(2) degree of intelligence and physical condition of the is most central to a finding of guilt is the conclusive determination that
the accused has exhibited, by his voluntary act without malice, an
offender, and
inexcusable lack of precaution. It is that which supplies the criminal
(3) other circumstances regarding persons, time, and intent so indispensable as to bring an act of mere negligence and
place. imprudence under the operation of the penal law.
This is because a conscious indifference to the consequences of the (b) The driver of a vehicle approaching but not having entered
conduct is all that is required from the standpoint of the frame of an intersection shall yield the right of a way to a vehicle within
mind of the accused. Quasi-offenses penalize the mental attitude or such intersection or turning therein to the left across the line
condition behind the act, the dangerous recklessness, the lack of care of travel of such first-mentioned vehicle, provided the driver
or foresight, the "imprudencia punible," unlike willful offenses which of the vehicle turning left has given a plainly visible signal of
punish the intentional criminal act. This is precisely where this Court intention to turn as required in this Act.
found Dr. Ynzon to be guilty of - his seemingly indifference to
deteriorating condition of JR consequence, failed to exercise lack of The provision governs the situation when two vehicles approach the
precaution which eventually led to JR's death. intersection from the same direction and one of them intends make a
turn on either side of the road. But the rule embodied in the said
Employment or Occupation provision, also prevalent in traffic statutes in the United States, has also
The profession of pharmacy demands care and skills; and been liberally applied to a situation in which two vehicles approach an
intersection from directly opposite directions at approximately the
druggists must exercise care of a especially high degree, the
same time on the same street and one of them attempts to make a left-
highest degree of care known to practical men, so that human hand turn into the intersecting street, so as to put the other upon his
life may not constantly be exposed to the danger from the right, the vehicle making the turn being under the duty of yielding to
substitution of deadly positions for harmless medicines. the other.
Other Circumstances Regarding Persons, Time and Place (4) Nevertheless, the right of way accorded to vehicles
People v. Azaola: In attempting to overtake another vehicle, the rear approaching an intersection is not absolute in terms. It is
of the jeepney driven by the accused collided with a 60-year-old actually subject to and is affected by the relative distances of
woman who was ambling along the edge of the road. The woman died the vehicles from the point of intersection. Thus, whether one
because of the impact. The driver was driving only 15-25 kms. an hour. of the drivers has the right of way or, as sometimes stated,
has the status of a favored driver on the highway, is a
Held: The motorist must not only keep within the speed limit but question that permeates a situation where the vehicles
observe due care; and the latter is always a function of the surrounding approach the crossing so nearly at the same time and at such
circumstances of person, time and place. At the time of the accident, it distances and speed that if either of them proceeds without
was drizzling, and road was slippery. The victim was an old woman regard to the other a collision is likely to occur. Otherwise
ambling along the edge of the road. stated, the statutory right of way rule under Section 42 of our
traffic law applies only where the vehicles are approaching
the intersection at approximately the same time and not
Duty of accused when an approaching vehicle in running where one of the vehicles enter the junction substantially in
on the wrong side of the road. advance of the other.
If an approaching vehicle is running on the wrong side of the road, or
on the proper lane of the accused, in order to avoid the impending (5) Whether two vehicles are approaching the intersection at the
collision, it becomes the duty of the accused, who first notice the same time does not necessarily depend on which of the
approaching vehicle when it is still at some distance, to exercise due vehicles enters the intersection first. Rather, it is determined
care under the existing circumstance in conformity with the conduct by the imminence of collision when the relative distances
expected of a reasonably prudent man, as by slowing down, stopping, and speeds of the two vehicles are considered.
or further turning to the right where there is enough space for his
vehicle to go to that side. It is said that two vehicles are approaching the intersection
at approximately the same time where it would appear to a
Right of Way of Motor Vehicles reasonable person of ordinary prudence in the position of
In Caminos, Jr v. People, May 8, 2009, the Supreme Court held: the driver approaching from the left of another vehicle that
(1) In traffic law parlance, the term right of way is understood as if the two vehicles continued on their courses at their speed,
the right of one vehicle to proceed in a lawful manner in a collision would likely occur, hence, the driver of the vehicle
preference to another approaching vehicle under approaching from the left must give the right of precedence
circumstances of direction, speed and proximity as to give to the driver of the vehicle on his right.
rise to a danger of collision unless one of the vehicles grants
precedence to the other. (6) Nevertheless, the rule requiring the driver on the left to yield
(2) Although there is authority to the effect that the right of way the right of way to the driver on the right on approach to the
is merely of statutory creation and exists only according to intersection, no duty is imposed on the driver on the left to
express statutory provision, it is generally recognized, where come to a dead stop, but he is merely required to approach
no statute or ordinance governs the matter, that the vehicle the intersection with his vehicle under control so that he may
first entering an intersection is entitled to the right of way, yield the right of way to a vehicle within the danger zone on
and it becomes the duty of the other vehicle likewise his right. He is not bound to wait until there no other vehicle
approaching the intersection to proceed with sufficient care on his right in sight before proceeding to the intersection but
to permit exercise of such right without danger of collisions. only until it is reasonably safe to proceed.
(3) The right of way rule is under RA 4136, Section 42:
Section 42. Right of Way. Thus, in Adzuara v. Court of Appeals, it was established that
(a) When two vehicles approach or enter an intersection at a motorist crossing a thru-stop street has the right of way
approximately the same time, the driver of the vehicle on the over the one making a turn; but if the person making the turn
left shall yield the right of way to the vehicle on the right, has already negotiated half of the turn and is almost on the
except as otherwise hereinafter provided. The driver of any other side so that he is already visible to the person on the
vehicle traveling at an unlawful speed shall forfeit any right thru-street, he is bound to give way to the former.
which he might otherwise have hereunder.
NOTE: A firetruck or apparatus going to and from the scene of SIMPLE IMPRUDENCE
fire has the right of way over all vehicles, even if it had Simple imprudence consists in the lack of precaution displayed
proceeding under a false alarm. in those cases in which the damage impending to be caused is
not immediate nor the danger clearly manifest.
Motor Vehicle Overtaking Another Vehicle
Dumayag v. People (2012): Section 37 of R.A. No. 4136, as amended, ELEMENTS OF SIMPLE IMPRUDENCE
mandates all motorists to drive and operate vehicles on the right side 1. That there is Lack of precaution on the part of the
of the road or highway. When overtaking another, it should be made offender.
only if the highway is clearly visible and is free from oncoming vehicle. 2. That the Damage impending to be caused is not
Overtaking while approaching a curve in the highway, where the
immediate or the danger is not clearly manifest.
driver’s view is obstructed, is not allowed.
Corollarily, drivers of automobiles, when overtaking another vehicle, are People v. Custodio: Just as the truck driven by A was about to go up
charged with a high degree of care and diligence to avoid collision. the pontoon bridge, he found B's truck stalled on top of it. B asked A
The obligation rests upon him to see to it that vehicles coming from to pull his truck. C, helper of B, was requested to tie a steel cable to the
the opposite direction are not taken unaware by his presence on the two trucks which were then facing each other at a distance of about
side of the road upon which they have the right to pass. two meters. At a signal, A backed out his truck. Scarcely had the truck
moved about two meters when the truck of B started functioning, and
The evidence indubitably shows that before the collision, the passenger B directed A to stop. C untied the steel cable. It was then that C was
bus was cruising along its rightful lane when the tricycle coming from sandwich between the two trucks, resulting in the death of C.
the opposite direction suddenly swerved and encroached on its lane.
Considering the salient physical circumstances surrounding the
The accident would not have happened had Genayas, the tricycle driver, accident, such as (1) the narrow distance between the two vehicles, (2)
stayed on his lane and did not recklessly try to overtake another vehicle their inclined position, (3) the approximate time (5:00 pm.) when it
while approaching a blind curve. occurred, and (4) the temporary and slippery condition of the pontoon
bridge, the court believed that the two drivers were negligent, when
Driving Within Speed Limit is Not a Guaranty for Due Care both failed to exercise the necessary and reasonable prudence and care
in ascertaining before and whether or not their trucks were already
Speed limits are merely maxima which are not to be exceeded,
untied and the deceased safely ensconced prior to maneuvering their
so that driving within a certain speed limit is not a guaranty of vehicles.
due care.
However, the negligence exhibited by the two drivers does not
The degree of care required of motorist is not governed by approximate negligence of a reckless nature but merely amounts to
speed limits but by circumstances and conditions obtaining at simple negligence
a particular time.
NOTE: Placing a loaded pistol in one’s pocket from which it fell,
Complex Crime of Reckless Imprudence Resulting in resulting in the injury of another when it fired, is not negligence
Multiple Homicide with Serious Physical Injuries for it was considered an accident.
and Less Serious Physical Injuries
People v. De Los Santos (2001): The accused, being then a young When the execution of the act covered by this article
college graduate and an experienced driver, should have known to resulted in the damage to the property of another the
apply the brakes or swerve to a safe place immediately upon hearing penalty is only fine
the first bumping thuds to avoid further hitting the other victims. Marikina Auto Line v. People (2006): A passenger bus accused
was driving struck the terrace of an apartment. The accused was
By his own testimony, it was established that the road was slippery and convicted for reckless imprudence resulting in damage to
slightly going downward; and worse, the place of the incident was
property. The accused was sentence to suffer imprisonment for
foggy and dark.
one year and to pay offended party.
He should have observed due care in accordance with the conduct of
a reasonably prudent man, such as by slackening his speed, applying Held: The trial court erred in sentencing the accused to suffer
his brakes, or turning to the left side even if it would mean entering the the straight penalty of one year. This is so because under the
opposite lane (there being no evidence that a vehicle was coming from third paragraph of Article 365, the offender must be sentenced
the opposite direction). to pay a fine when the execution of the act shall have only
resulted in the damage to property.
It is highly probable that he was driving at high speed at the time. And
even if he was driving within the speed limits, this did not mean that he
was exercising due care under the existing circumstances and
NOTE: The measure of the damage should be the difference in
conditions at the time. value of the property before the incident and immediately after
the repair
Considering that the incident was not a product of a malicious intent
but rather the result of a single act of reckless driving, the accused Article 64 Relative to Mitigating and Aggravating
should be held guilty for the complex crime of reckless imprudence Circumstances is Not Applicable to Quasi-Offenses
resulting in multiple homicide with serious physical injuries and less Paragraph 5 of Article 365 expressly states that in the imposition of the
serious physical injuries. penalties provided for in the Article, the courts shall exercise their sound
discretion without regard to the rules prescribed in Article 64.
The rationale of the law can be found in the fact that in quasi-offenses Emergency Rule
penalized under Article 365, the carelessness, imprudence or The rule is stated thus: An automobile driver who, by the
negligence which characterizes the wrongful act as may vary from one negligence of another and not by his own negligence, is
situation to another, in nature, extent, and resulting consequences, and
suddenly placed in an emergency and compelled to act
in order that there may be a fair and just application of the penalty, the
courts must have ample discretion in its imposition, without being
instantly to avoid a collision or injury is not guilty of negligence
bound by what we may call the mathematical formula provided for in if he makes such a choice which a person of ordinary prudence
Article 64 of the Revised Penal Code. The trial court was not bound to placed in such a position might make even though he did not
apply paragraph 5 of Article 64 even if the accused had two mitigating make the wisest choice.
circumstances in his favor with no aggravating circumstances to offset
them. Example: The act of a motorist in attempting to pass a car in front of
him at a moment when another vehicle is approaching constitutes
When are the penalties in Article 365 not applicable? gross negligence and renders him liable for any damage resulting from
1. When penalty provided for the offense is equal to or said act. The "emergency" rule cannot be applied to exempt him from
lower than those provided in the first two paragraphs liability, because there is proof of negligence on his part.
of this article (Art. 365), in which case the courts shall
impose the penalty next lower in degree than that Applicability of the Emergency Rule
which should be imposed, in the period which they A person who is confronted with a sudden emergency may be left no
time for thought, must make speedy decision based largely upon
may deem proper to apply.
impulse or instinct, and cannot be held to the same conduct as one who
has had an opportunity to reflect, even though it later appears that he
2. When, by imprudence or negligence and with made the wrong decision.
violation of the Automobile Law, the death of a person
shall be caused, in which case the defendant shall be But the "emergency" doctrine is applicable only where the situation
punished by prision correccional in its medium and which arises to confront the actor is sudden and unexpected and is such
maximum periods. as to deprive him of all opportunity for deliberation. A further
qualification which must be made is that some emergencies must be
anticipated, and the actor must be prepared to meet them when he
Q. What if there are two negligent drivers?
engages in an activity from which they are likely to arise.
Where the concurrent or successive negligent acts or omission of two
or more persons, although acting independently of each other are, in
If a person has knowledge that unusual consequences may result from
combination, the direct and proximate cause of a single injury to a third
his negligent act, he can be held liable for an injurious consequence of
person, and it is impossible to determine in what proportion each
such act notwithstanding it is not the ordinary consequence of an act
contributed to the injury, either is responsible for the whole injury, even
of that kind.
though his act alone might not have caused the entire injury.
The "raison d'etre" behind this legal principle is that the negligence of
Doctrine of Last Clear Chance from Emergency Rule
one person is in no sense justified by the concurring negligence of Engada v. CA (2003): Iran was driving Toyota Tamaraw jeepney
another. (People v. Desalisa). bound for Iloilo with Seyan among those on board. While traversing the
road along Barangay Acquit, the Tamaraw passengers allegedly saw
Doctrine of Last Clear Chance from the opposite direction a speeding Isuzu pick-up driven by the
petitioner. The pick-up had just negotiated a hilly gradient on the
The doctrine in essence, is to effect that where:
highway. When it was just a few meters away from the Tamaraw, the
a. both parties are negligent, but the negligent act of Isuzu pick up’s right signal light flashed, at the same time, it swerved to
one is appreciably later in time than that of other, or its left, encroaching upon the lane of the Tamaraw and headed towards
b. when it is impossible to determine whose fault or a head-on collision course with it.
negligence should be attributed to the incident.
Seyan shouted at Iran to avoid the pick-up. Iran swerved to his left put
The one who had the last clear opportunity to avoid the the pick-up also swerved to its right. Thus, the pick-up collided with the
impending harm and failed to do is chargeable with the Tamaraw, hitting the latter at its right front passenger side. The impact
consequences thereof. caused head and chassis of the Tamaraw to separate from its boy. Seyan
and Iran was thrown out of the Tamaraw and landed on a rice field. The
petitioner was found guilty of Simple Imprudence resulting in physical
Stated differently, the rule would also mean that an antecedent injuries and damage to property.
negligence of a person does not preclude the recovery of
damages for supervening negligence of, or bar a defense Petitioner tries to extricate himself from liability by invoking the
against the liability sought by, another if the latter, who had the doctrine of last clear chance. He avers that between him and Iran, the
last fair chance, could have avoid the impending harm by the latter had the last clear chance to avoid collision, hence Iran be liable.
exercise of due diligence.
Held: The doctrine of last clear chance states that a person who has the
last clear chance or opportunity of avoiding accident, notwithstanding
In accordance with the doctrine of last clear chance," the
the negligent acts of his opponent, is considered in law solely
contributory negligence of the party injured will not defeat the responsible for the consequences of the accident. However, no
action if it be shown that the accused might, by the exercise of convincing evidence was adduced by petitioner to support his
reasonable care and prudence, have avoided the consequences invocation of the above cited doctrine. Instead, what has been shown
of the negligence of the injured party. is the presence of an emergency and the proper application of the
emergency rule.
Petitioners act of swerving to the Tamaraws lane at a distance of 30

meters from it and driving the Isuzu pick-up at a fast speed as it - END OF CRIMINAL II –
approached the Tamaraw, denied Iran time and opportunity to ponder
the situation at all. There was no clear chance to speak of. Accordingly,
the Court of Appeals did not err in holding petitioner responsible for
the vehicular collision and the resulting damages, including the injuries
suffered by Mrs. Sheila Seyan and the total loss of the Tamaraw jeepney.
Failing to Lend Help is a Qualifying Circumstance

The failure to render assistance constitutes a qualifying
circumstance because the presence thereof raises the penalty
by one degree (like treachery which qualifies homicide to
murder).
The same must be alleged in the information to apprise the

defendant of this charge unlike an ordinary aggravating
circumstance which, even if not alleged in the information, can "It does not do to dwell on dreams
be taken into account if proved at the trial without objection. and forget to live.”
NOTE: A quack doctor who treated a sick man, resulting in the –Harry Potter and The Philosopher’s Stone
latter’s death guilty of homicide through reckless imprudence.
Carillo v. People (1994)

Petitioner filed a petition for review on certiorari on the decision of the
Court of Appeals affirming his conviction by the RTC of the crime of
simple negligence resulting in homicide, for the death of his 13-year
old patient Catherine Acosta after an appendectomy procedure
conducted on the patient. Dr. Carillo was liable for guilty of simple
negligence resulting to homicide.
Simple negligence, penalized under what is now Article 365 of the

Revised Penal Code, is defined as "a mere lack of prevision in a situation
where either the threatened harm is not immediate or the danger not
openly visible."
Put in a slightly different way, the gravamen of the offense of simple

negligence is the failure to exercise the diligence necessitated or called
for the situation which was not immediately life-destructive, but which
culminated, in the present case, in the death of a human being three (3)
days later.
In the case at bar, we consider that the chain of circumstances above

noted, namely:
(1) the failure of petitioner and Dr. Madrid to appreciate the
serious post-surgery condition of their patient and to
monitor her condition and provide close patient care to her;
(2) the summons of petitioner by Dr. Madrid and the cardiologist
after the patient's heart attack on the very evening that the
surgery was completed;
(3) the low level of care and diligence exhibited by petitioner in
failing to correct Dr. Madrid's prescription of Nubain for
post-operative pain;
(4) the extraordinary failure or refusal of petitioner and Dr.
Madrid to inform the parents of Catherine Acosta of her true
condition after surgery, in disregard of the requirements of
the Code of Medical Ethics; and
(5) the failure of petitioner and Dr. Madrid to prove that they
had in fact exercised the necessary and appropriate degree
of care and diligence to prevent the sudden decline in the
condition of Catherine Acosta and her death three (3) days
later, leads the Court to the conclusion, with moral certainty,
that petitioner and Dr. Madrid were guilty of simple
negligence resulting in homicide.

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Criminal Law II Santiago

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CRIMINAL LAW II

REVISED PENAL CODE

CRIMINAL LAW II First Mode: Levying War against the Government

TITLE ONE It must be directed to the government, with the intent to

No person shall be convicted of treason unless on the Extend of Aid or Comfort

FIRST MODE OF ESPIONAGE Section 3. Disloyal acts or words in time of peace

ELEMENTS Section 4. Disloyal acts or words in time of war

ELEMENTS The crimes provoking war or disloyalty in case of war are:

ELEMENTS: Section Three. – Piracy and Mutiny on the High Seas

NOTE: It is qualified piracy when the crime was accompanied by

Article 122 before its amendment, provided that piracy must

PD 532. The coverage of the law on piracy embraces any

Qualified Piracy is a Composite Crime

NOTE: Any person who aids or protects pirates or abets the

CRIMINAL LAW II ELEMENTS OF ARBITRARY DETENTION

Arrest Without Warrant, When Lawful Arbitrary Detention through Imprudence

“In his presence”

“Shall detain any person for some legal ground”

Article 125 Does Not Apply When the Arrest

ELEMENTS Petition 1. Umil v. Ramos

Dural was referred to the Caloocan City Fiscal who conducted

Reasonable Ground Must be With Testimony of Masamlok Inadequate

Right of Officer to Break building or Enclosure ELEMENTS

Section Three. – Prohibition, interruption and dissolution ELEMENTS

PEOPLE v. BAES (1939)

Facts: The Parish Priest Jose M. Baes of Lumban, Laguna

The fiscal instead of filing for an information put the following

Political Crimes from Common Crimes, Distinguished Act Punishable

ELEMENTS OF INCITING TO REBELLION OR INSURRECTION Rebellion

PEOPLE v. LOVEDIORO (1995) Burden of Proof of Political Motive - Accused

OCAMPO v. ABANDO (2014) Prosecutor’s Action and Arrest

ELEMENTS OF SEDITION 2. No object of sedition, no sedition.

Nature of the Crime There Must be An Agreement and A Decision

Different Acts of Inciting Sedition b. Dangerous tendency rule

Admissibility of the Exhibits Conviction Under Treason and Sedition Law

Meeting of a Legislative Body Must be Disturbed ELEMENTS

Facts on Petitioner Martinez CHAPTER THREE

CHAPTER FOUR ELEMENTS OF THE SECOND FORM OF DIRECT ASSAULT

ELEMENTS OF SIMPLE OBEDIENCE Person in Authority

When the group reached the gate of Puzon Compound, he Issue D:

Testimonies of the Witnesses On Conspiracy

Issue CHAPTER FIVE

Article 153 in relation to Articles 131 and 132 ACTS PUNISHABLE

“Shall discharge any firearm” Offender is Usually an Outsider

The offense under this article is usually committed by an ELEMENTS:

“Before beginning to serve such sentence”

Elements of Evasion of Service of Sentence Violation of Conditional Pardon

English and Spanish Text on Evasion of Sentence Issue

At the time of the incident, they were members of the “Batang

CRIMINAL LAW II Article 162. Using forged signature or counterfeit seal or

The Signature of the President Must be Forged Coin, Defined

Constructive Possession, Included drawn by or upon authorized officers of the Philippines,

Knowledge of the Fact that the Coin is False Acts Punishable

Notes and Other Obligations and Securities That May be ELEMENTS

The Bill, Resolution or Ordinance Must be Genuine ELEMENTS:

Documents May be Simulated or Fabricated There Must be an Intent or Attempt to Imitate

REQUISITES NOTE: Such acts of falsification can be committed only by a

Estafa Through Falsification of Public Document Falsification through Reckless Imprudence

Requisites of the Fourth Kind of Falsification Statement is Utterly False

CASES UNDER USE OF FALSIFIED DOCUMENTS American Jurisprudence on Forgery

At the trial, the prosecution presented Antonio Roxas Dava for

In the course of Severino's testimony, the defense counsel

COMMENTARY ON FIXERS: We cannot help but comment on

The accused, a telegraph operator, who