4A Study Circle
A.Y. 2020 – 2021
FEBRUARY 19, 2021
GENERAL PRINCIPLES
Criminal Law – branch of public law that deals with crimes,
treats of their nature, and provides for their penalties.
If a person violates a penal law in the Philippines, it is more
of an offense against the State than against the private
offended party or the victim or the heirs of the victim.
Hence, whenever a violation of the law is committed, there
are two injuries produced:
1. Social injury against the state for the disturbance of
public order
2. Personal injury against the private offended party
or the victim because of the damage/injury caused
on him.
In case of the conviction of the accused, you will notice that
in the judgment of the court, aside from the penalty of
imprisonment or fine, there’s also the imposition of civil
liability.
- The imprisonment or fine will answer for the social
disturbance, disturbance of public order, the social
injury.
- The award of civil indemnity against the accused
goes to the private offended party or to the heirs of
the private offended party.
CRIME: act committed or omitted in violation of the public
law forbidding or compelling it. Crime is an encompassing
word. It includes:
1. FELONY: an act or omission punished by the RPC
(Art. 3).
2. OFFENSE: an act or omission punished by SPL.
3. INFRACTION OF THE LAW: an act or omission
punished by the local ordinances as enacted by the
local sanggunian.
But whether it is a felony, an offense, or an infraction of the
law, they are all called crimes.
SOURCES OF PHILIPPINE CRIMINAL LAW
1. Revised Penal Code
2. Special Penal Laws
3. Penal Executive Orders/Penal Presidential Decrees
– if such power is delegated by Congress.
It is Congress that has the power to enact penal laws. There
are however instances wherein Congress would enact the
law that would delegate to the President the power to issue
Penal Executive Orders. This is not inherent to the powers
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Prosecutor Victoria C. Garcia
of the President. Without the enacted law delegating the
same, the President cannot exercise such powers.
Although Congress has the power to enact penal laws, there
are certain limitations on their power to enact penal
laws:
1. Penal laws enacted by Congress must be general in
application.
Otherwise, it will be violative of the equal
protection clause of the Constitution.
2. Penal laws enacted by Congress must not partake
of the nature of ex-post facto law.
3. Penal laws enacted by Congress must not partake
of the nature of bill of attainder.
4. Penal laws enacted by Congress cannot impose
cruel or unusual punishment, or excessive fine.
BAR Q: Distinguish an ex post facto law and a bill of
attainder.
A: An ex post facto law is a law which an act criminal
although at the time it was committed, it was not yet so.
Whereas a bill of attainder is a law which punishes the
offender without giving him the opportunity to be heard,
without giving him the opportunity to state his side of the
story, without due process of law.
CHARACTERISTICS OF PHILIPPINE CRIMINAL LAW
1. GENERALITY
Our penal laws shall be binding on all persons
residing in the Philippines whether he is a Filipino
citizen or a foreigner, regardless of race, creed,
color, religion, or other personal circumstances.
Therefore, whoever you are, if you are in the
Philippines, you have to comply with Philippine
penal laws. You are obligated, bound to comply, to
follow Philippine penal law. Otherwise, you can
arrested, you can prosecuted, you can be punished.
This characteristic is not absolute. It admits of
exceptions:
(1) GENERALLY ACCEPTED PRINCIPLES OF PUBLIC
INTERNATIONAL LAW
Chiefs of state, sovereigns, and other diplomatic
representatives such as public ministers and
ambassadors are immune from the criminal
jurisdiction of the country where they are assigned.
While they are in the host country, they cannot be
arrested, prosecuted, nor punished for having
violated the laws of the said country because they
enjoy diplomatic immunity from suit.
It is also settled that although a consul is a
diplomatic representative, a consul does not enjoy
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the same diplomatic immunity from suit as
sovereigns and other heads of state. Therefore, a
consul can be prosecuted before the courts of the
host country the moment he commits a violation of
the penal laws of said host country. EXCEPT: (1)
when the act committed by said consul is in the
performance of his functions, and (2) if there is a
treaty stipulation between the mother country of
the consul and the host country saying that this
particular consul is immune from suit.
(2) LAWS OF PREFERENTIAL APPLICATION
There are certain laws which exempt certain or
particular individuals from prosecution. Example
of this, Art. 6 of the 1987 CONSTI, members of
Congress cannot be prosecuted for libel, slander,
defamation, for every speech or debate they made
in the halls of Congress while Congress is in their
regular or special session. In Political Law, this is
known as the congressional privilege of speech and
debate.
So if, in a privileged speech, Sen. Lacson made
defamatory remarks against a well-known
successful and influential businessman, that
businessman cannot file against of libel, oral
defamation, or slander against him because it is a
law of preferential application, the Constitution
itself provides, said Senator cannot be prosecuted.
2. TERRITORIALITY
Our penal laws shall have force and effect within
the Philippine archipelago including its
atmosphere, interior waters, and maritime zone.
Therefore, for every act committed in the
Philippine archipelago, our criminal laws apply.
But, for acts committed outside the territory of the
Philippines, that offender cannot be prosecuted
before Philippine courts.
The exceptions to the territoriality principle of
criminal law is provided for under Art. 2 (2) of the
Revised Penal Code.
Art. 2. Application of its provisions. — Except as provided
in the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within
the Philippine Archipelago, including its atmosphere, its
interior waters and maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or
airship
Criminal Law Review
Prosecutor Victoria C. Garcia
2. Should forge or counterfeit any coin or currency note
of the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the obligations and
securities mentioned in the presiding number;
4. While being public officers or employees, should
commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national
security and the law of nations, defined in Title One of
Book Two of this Code.
3. PROSPECTIVITY
This characteristic provides that our penal laws shall
only operate prospectively. Our penal laws, as a rule,
cannot be given retroactive application. It shall only be
applied at the time of its effectivity and thereafter.
There are limitations to this:
ART. 22: Penal laws shall be given retroactive
application if they favor the accused provided that the
accused is not a habitual criminal.
Q: The President of China arrived in the Philippines and
he went to Malacañan for dinner with the President. In
this dinner there were members of Congress and other
dignitaries in honor of the President of China. While the
waiter was serving the said President of China, he was
a little nervous. As a result, the said waiter accidentally
poured the soup on the pants of the President of China.
The President of China, stood up, and was very mad. As
a result, in front of everybody the President of China
repeatedly boxed the face and the eyes of the poor
waiter. He was only stopped by the bodyguard when the
waiter was taken away and removed from the scene.
The said poor waiter suffered less serious physical
injuries. His eyes need medical treatment. Can the said
waiter file a case of less serious physical injuries
against the President of China?
A: NO. Prosec did not offer any explanation. Student
answered NO, because he was performing his official
functions, he is the chief of state, he enjoys absolute
immunity from suit.
Q: What if the said dinner party was already done and
the President of China was on his way to the hotel
where he was staying. He felt hungry, he did not like the
dishes served in Malacañan. He wanted Chinese food.
The said driver passed by a well-known Chinese
restaurant. The President of China told him to stop, and
they went inside the restaurant in order to dine. While
he was having dinner, the waiver in said restaurant
serving the soup accidentally poured the soup on the
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pants of the said President. He was so mad, he stood up
and boxed the said waiter. Can said waiter file a case of
less seriously physical injuries against the President of
China?
A: NO. Since the President of China, the sovereign, the chief
of state of China, he enjoys blanket diplomatic immunity
from suit for all violations of our penal laws. The same is
afforded to the President of the Philippines.
Q: But what if in the same problem it was the consul of
China who was invited in Malacañan? Can the waiter file
a case for less serious physical injuries?
A: NO. No explanation given by prosec.
Q: But what if the said dinner was already done, the
consul of China was on his way to the embassy, felt
hungry, stopped by a Chinese restaurant, he was dining
therein and the waiter accidentally poured the soup on
the said consul of China. He boxed the waiter. Can the
waiter file a case for less serious physical injuries?
A: YES. Insofar as the Consul is concerned, he shall only be
immune if the said act of violation took place in the
performance of his function. Hence during the first time that
he boxed the waiter, he was having dinner in Malacañan.
For every violation he committed therein, he will be
immune from suit. However, when he was already in the
private restaurant, dining, inflicted injuries upon the waiter,
since he was no longer in the performance of his function,
the said waiter can file a case for less serious physical
injuries and the case will prosper.
Q: X and Y, X is a Filipina who went to the Netherlands.
While she was there, she met a Dutch man Y. They fell
in love and they decided to get married. After, X gave
birth to a baby boy. When the said child was 6 months
old, X and Y decided to go separate ways. They filed for
divorce. Because of some cultural differences, which, to
them, could not be reconciled, they decided to divorce.
This was granted by the Dutch court. Thereafter X told
Y that she is going back to the Philippines. Y said, he will
be giving support to their son. Y promised X that he will
send support. X left, and went back to the Philippines.
However, no support ever came from Y. 4 years later, Y
went to the Philippines. While visiting, he fell in love
with a Filipina. And decided to marry the said Filipina
and began settling in the Philippines now that he is
married with the Filipina, Z. They put up a successful
business. This came to the knowledge of X and so X filed
sent a demand letter asking for support to their son. But
Y wouldn’t receive the said demand letter. So X was
forced to file a case before the office of the public
prosecutor for the violation of R.A. 9262 for failure to
give support. The Investigating Public Prosecutor sent
a subpoena to Y to file his counter-affidavit. In his
counter-affidavit, Y said that he is not liable due to
these grounds: (1) he is a foreigner therefore
Philippine laws do not apply to him; (2) the act of failing
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Prosecutor Victoria C. Garcia
to give support happens in a foreign country.
Therefore, based on these two grounds, he moved for
the dismissal of the complaint. If you were the
prosecutor, how would you resolve the case based on
the arguments raised by Y?
A: Both arguments have no merit, the prosecutor must
resolve the case in favor of the complainant and should file
a case of violation of R.A. 9262 against Y.
The first argument has no merit. Even if he is a foreigner,
since he is in the Philippine territory, based on the
generality characteristic of criminal law, R.A. 9262 would
apply.
The second argument has no merit. The said act of failure to
give support may have started in the Netherlands, but it was
continuing in the Philippines. While he was in the
Philippines, still, he failed to give support to the son. Based
on the territoriality characteristic, our penal laws would
apply to him because the failure to give support was
committed in the Philippines.
Therefore, the case should be filed against him.
Q: What if X and Y are happily married in the
Philippines? They have been married for 5 years. X the
husband, needed to go to Japan to undergo a 1 year
training together with other employees in the
corporation. And so X left Y in the Philippines, X left for
training together with the other employees. While X
was undergoing such training in Japan, X fell in love
with a fellow employee who was also undergoing
training. They fell so in love that they cohabited in
Japan. They are living together under the same room.
And, the other concerned employees who were friends
of Y would take photos of X and that other woman Z and
would send it to Y in the Philippines. Y was so mad,
hurt. And so after 1 year, X arrived in the Philippines,
the said woman Z arrived in the Philippines, Y
immediately filed a complaint for concubinage under
Art. 334 against the husband and the mistress. Will the
case prosper?
A: NO. If you were the public prosecutor, you would have to
dismiss the case for lack of jurisdiction. Reason is, the act of
cohabitation took place not in the Philippines but in Japan.
Since the act was committed outside of the Philippine
territory, therefore, our penal laws cannot apply, the said
accused cannot be prosecuted before the Philippine courts.
Territoriality characteristic of criminal law.
Q: What if in the very same problem the case filed by Y
against X is not concubinage but a violation of R.A. 9262.
Will the case prosper?
A: YES. Reason is, under R.A. 9262, in case of psychological
violence, even if the husband or even if a spouse committed
the act of cohabitation in a foreign country, the
psychological violence being felt by the other spouse in this
case is in the Philippines. Supreme Court said, psychological
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A.Y. 2020 – 2021 Prosecutor Victoria C. Garcia
violence under R.A. 9262 is a continuing offense. Therefore, a tooth for a tooth”. For every individual who must be
since it is a continuing offense, the offender can be wrong done, there is a rehabilitated, cured, and not
prosecuted before the courts of the place where any of the commensurate penalty. punished.
elements of the crime happened. Although the cohabitation The determination of penalty
is done mechanically. The
happened in Japan, the psychological violence felt by the
penalty imposed on the
wife happened in the Philippines. Therefore, X can be offender is always in direct The determination of penalty
prosecuted for violation of R.A. 9262. This time, the case will proportion to the injury or is done individually, after the
prosper. damage caused to the victim. offender has been examined
So if the said offender kills the and investigated.
Q: Public officer X was charged with malversation. victim, the penalty to be
Based on the evidence established in Court, he imposed to him will also be
appropriated 11,000 from his collections. And so as a death.
result, the incident happened in 2015. The judgment is The emphasis of the law is on
now to be promulgated and the judge found him guilty the offense and not the
offender. The emphasis of the
beyond reasonable doubt of Malversation. However,
law is on the crime and not the
before the promulgation of judgment, a new law was The emphasis of the law is on
criminal. The classical
passed by Congress, which lowers the penalty to be the offender and not on the
philosophy does not take into
imposed based on damages and injuries caused on the offense; on the criminal and
consideration the reason why
not on the crime. This takes
offended party. Can the said judge consider and apply the offender committed the
into consideration the reason,
this new law in imposing the penalty on X whom the crime. It suffices that he
the motive why the offender
judge found guilty? committed the crime, violated
committed the act.
A: YES. The said new law is favorable to X. It will lower the the law, and for that he has to
imposable penalty. It is favorable to him therefore it can be be punished regardless of
motive, regardless of reason
applied by the court. The penalty should be based on this
for the commission.
new law and not on the RPC.
If you mixed the characteristics of both, we have the so-
Q: What if the judge has already rendered his decision
called mixed or eclectic philosophy. Under this, crimes
against X, convicting him of malversation, imposing
which are heinous in nature shall be dealt with in the
upon him the penalty of reclusion temporal in its
classical manner, and crimes which are considered social or
minimum period. The judgment is already final and
economic in nature, shall be dealt with in the positivist or
executory. When suddenly, here comes R.A. 10951
realistic manner.
taking into effect. Can the judge still consider R.A.
10951 despite the fact that his judgment on the
DOCTRINES IN CRIMINAL LAW
malversation case has already become final and
executory?
DOCTRINE OF PRO REO: penal laws shall always be
A: YES. Although there is this so-called immutability of
applied liberally, interpreted liberally in favor of the
judgment, since it is for the benefit of the accused, since the
accused and strictly against the state. In dubio pro reo. In
penalty would be lowered, the case can still be opened.
case of doubt, rule in favor of the accused. Reason,
constitutional presumption of innocence. All accused under
NOTE: Only insofar as changing the penalty is concerned
the Constitution are presumed innocent unless proven
and not regarding the merits of the accused.
guilty beyond reasonable doubt.
PHILOSOPHIES UNDERLYING THE CRIMINAL LAW
LENITY RULE: whenever a penal provision is susceptible of
SYSTEM
two interpretations, one is lenient to the accused and the
other is strict to the accused, the lenient interpretation shall
CLASSICAL OR JURISTIC POSITIVIST OR shall prevail. Leniency towards the accused. Same reason,
PHILOSOPHY REALISTIC PHILOSOPHY constitutional presumption of innocence.
The basis of criminal liability
The basis of criminal liability
is man’s social environment.
is the moral trait of the EQUIPOSE RULE: whenever the evidence of the
All men are born good, no man
offender. Man is a moral prosecution is equally balanced with the evidence of the
is born evil. What makes man
creature who understands defense, the scale of justice shall be tilted in favor of the
do evil things is the
right from wrong, good from
association that he has with accused. Again, the reason is the constitutional
evil. Hence, when he does a
wrong willfully, voluntarily.
his fellow beings, with his presumption of innocence, and another reason, in every
social environment. criminal action filed in court, it is the State, it is the
The purpose of penalty is to The purpose of penalty is prosecution that has the burden of proving the guilt of the
exact retribution. This rehabilitation. The positivist accused beyond reasonable doubt. The conviction of the
revolves around the philosophy believes that an
accused would depend on the strength of the evidence of
philosophy “an eye for an eye, offender is a socially sick
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the prosecution and not on the weakness of the evidence of
the defense. If the evidence of the prosecution is very weak,
even if the defense of the accused was that at the time he
was at the commission of the crime, he was at the moon, he
will be acquitted because conviction depends on the
evidence of the prosecution.
UTILITARIAN OR PROTECTIVE THEORY: the purpose of
penalty in criminal law is to protect society from actual and
potential wrongdoers. Hence, courts should see to it that in
imposing the penalty, they are only imposed on potential
and actual wrongdoers. And, the SC said, even in case of
violation of SPL, wherein criminal intent is immaterial,
courts should see to it that penalties are only imposed on
actual or potential wrongdoers. The basis of this so called
utilitarian theory is the maxim actus non facet reum nisi men
cit rea. The act is not criminal when the mind is not criminal.
We have also nullum crimen nulla poena sine lege. There is
no crime, when there is no law that punishes the act.
The Philippines is a civil law country. In our jurisdiction, no
matter how obnoxious, immoral, perverted an act is, if there
is no law that defines and punishes the said act, the doer of
the act cannot be prosecuted in court, unlike in common law
countries. In some European countries, if an act is immoral,
through the passage of time, it becomes an illegal criminal
act. That will not happen here in the Philippines because
here, laws are enacted. So for an act to be considered as
criminal and punishable, there must be a law that defines it
and punishes it.
REVISED PENAL CODE PROPER
BOOK I
ARTICLE 2 – APPLICATION OF ITS PROVISIONS
Art. 2 of the RPC provides for the scope of the application of
the RPC.
Art. 2. Application of its provisions. — Except as provided
in the treaties and laws of preferential application, the
provisions of this Code shall be enforced not only within
the Philippine Archipelago, including its atmosphere, its
interior waters and maritime zone, but also outside of its
jurisdiction, against those who:
1. Should commit an offense while on a Philippine ship or
airship
2. Should forge or counterfeit any coin or currency note
of the Philippine Islands or obligations and securities
issued by the Government of the Philippine Islands;
3. Should be liable for acts connected with the
introduction into these islands of the obligations and
securities mentioned in the presiding number;
Criminal Law Review
Prosecutor Victoria C. Garcia
4. While being public officers or employees, should
commit an offense in the exercise of their functions; or
5. Should commit any of the crimes against national
security and the law of nations, defined in Title One of
Book Two of this Code.
Art. 2 provides for the intra-territorial application of the
RPC and the extra-territorial application of the RPC.
Intra-territorial application of the RPC: penal laws are
applicable on all acts committed within the Philippine
archipelago, except as provided in treaties and laws of
preferential application, therefore, if the Philippines
entered into a treaty which is not in compliance with the
RPC, the said treaty shall prevail. If based on the said treaty
said persons will be exempt from the RPC, the said treaty
shall prevail.
Extra-territorial application of the RPC: these are
instances where even if the act was committed outside the
Philippine territory, the RPC would still apply, Philippine
courts would have jurisdiction. These are the exceptions to
the territoriality characteristic of criminal law.
PAR. 1: A vessel or aircraft is said to be a Philippine ship or
airship if it is registered under Philippine laws. Ownership
is immaterial. What matters is registration. So even if it is
owned by foreigners, if it is licensed in the Philippines, it is
a Philippine ship or airship. But even if it is Filipino owned,
if it is not registered in the country but in a foreign country,
it is not a Philippine ship or airship.
This par. applies when the said Philippine ship or airship is
outside the territory but is not yet in the territory of a
foreign country. In the latter case, the laws of that foreign
country shall apply.
Q: MV Capricorn is a vessel registered in the
Philippines, owned by Filipinos and registered in the
Philippines. It was bound to go to Malaysia. It was now
sailing Cebu. Filipinos and Malaysians were on board. X,
a Malaysian, was about to go to the restroom. When
suddenly, he saw his longtime mortal enemy Y. He had
been looking for Y, but he could not find him. But now,
all of a sudden, there is Y in the same vessel where he
was in. Time to do the revenge. So X went directly to the
restroom, upon seeing Y, there he planned what shall
he do to kill Y. He has no deadly weapon, it was
confiscated before boarding the vessel. So he planned
everything. When he got back to his seat, he took his
pointed ballpen. Thereafter, went slowly to Y, who at
the time was already fast asleep on his seat. And then
thereafter, repeatedly stabbed the neck of Y with the
said ballpen. He did not stop until Y was no longer
breathing. There was commotion, panic. X was
arrested, brought before the RTC of Cebu, and was
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charged with the crime of Murder. Will the case
prosper?
A: YES. Although he is a Malaysian citizen, he was on board
a Philippine vessel and the Philippine vessel was still on
Philippine territory on the waters of Cebu. Therefore, based
on the territoriality characteristic of criminal law, he shall
be prosecuted before Philippine courts even if he is a
foreigner.
Q: But what if MV Capricorn was already outside the
Philippine territory and was nearing Malaysian
territory but still on the high seas on international
waters not owned by any country. It was at the time that
X repeatedly stabbed Y until Y died. X was arrested and
brought to Philippine Courts. Will the case prosper?
A: YES, based on the extra-territorial application of the RPC,
those who shall commit an offense while on a Philippine
ship or airship. The Philippine vessel, MV Capricorn, was
already outside the Philippine territory but not yet in
foreign territory. Therefore the extra-territorial application
of the RPC applies to him, the said person, who killed Y on
board the Philippine vessel, shall be prosecuted before the
Philippine Courts.
Q: But what if MV Capricorn had already reached its
destination? The waters of Malaysia. While passengers
were disembarking, X suddenly saw Y. And X
repeatedly stabbed Y on the neck with the use of his
pointed ballpen. X was arrested and brought before the
courts of Malaysia. X’s defense: Malaysia has no
jurisdiction over him. According to him, if ever he
committed a crime, it was on board the Philippine
vessel—a vessel licensed in the Philippines therefore
according to him, he can only be prosecuted before the
Philippine courts.
A: His argument has not merit. Penal laws are territorial in
nature. Since the crime was committed when the Philippine
vessel was already on the waters, on the territory of
Malaysia, Malaysian laws shall apply—that is no longer part
of the extra-territorial application of the RPC because the
said Philippine vessel was already on the waters of a foreign
country.
Q: Is there any exception to this?
A: YES. In case of Philippine warplanes and war vessels. If
the crime is committed on board a Philippine warplane,
Philippine vessel, wherever it may be, it is always the
Philippines that has jurisdiction because said warplane and
war vessel is considered as an extension of Philippine
sovereignty. It is owned by the Philippine Navy, and the
Philippine Air Force. Therefore, it is as if the crime was
committed within the Philippine territory. It is the
territoriality characteristic of criminal law that shall apply.
Q: What if ABCDE went to Hong Kong, and there in HK
they counterfeited Philippine 10 peso coins. They are
Filipino citizens. They placed it inside a big case. They
are now on board the plane going back to the
Criminal Law Review
Prosecutor Victoria C. Garcia
Philippines. At the NAIA, the said case filed with 10 peso
coins was intercepted. Can they be prosecuted before
Philippine courts? Their argument: if they committed a
crime, they committed it in Hong Kong, outside the
territory of the Philippines.
A: The argument as no merit. The extra-territorial
application of the RPC applies. Although they counterfeited
the PH peso coins in a foreign country, they can be
prosecuted before the Philippine courts. Moreso, they did
not only counterfeit, they are also bringing it to the
Philippines in order to alter it in the Philippines.
PAR. 4: these refer to public officers and employees of the
Philippine government who are assigned in a foreign
country, particularly, in the embassies of the Philippines in
a foreign country. And while they are working in said
foreign country, the would commit a crime. If the criminal
act done by them is in any way connected to the
performance of their functions, they shall be prosecuted
before the Philippine courts. However, if the crime they
have committed has nothing to do with the performance of
their functions, they can only be prosecuted before the
courts of the said host country. Although they are public
officers and employees of the Philippine gov’t, they acted in
their private capacity.
Q: X is a DFA employee who was assigned to be a
secretary to a Philippine consul in Japan. As a secretary
she has access to the office of the consul. Here comes Y,
who is an OFW, went to the Secretary and was making a
follow-up of the document that need the signature of
the consul but X told Y that it is not yet signed. X saw
that Y was so sad, Y said, come with me. They went to a
coffee shop. X demanded from Y 200 dollars so she can
make sure that the signing of the document gets
prioritized by the consul. Y gave the 200 dollars. True
enough, it was signed, and X gave the document to Y. But
this came to the knowledge of DFA Secretary Locsin. He
was so mad. He asked X to go back to the Philippines
and an investigation was conducted. Thereafter, X was
charged with direct bribery. Will the case prosper?
A: YES. The said act done by the Secretary was in connection
with the performance of her functions. Therefore, X is liable
for direct bribery before the Philippine courts.
Q: What if this secretary of the consul in order to
augment her salary, has been selling jewelries. He was
selling jewelries, to other Filipino workers. So after
office hours, she would meet these Filipino workers
and she would sell jewelries. One time, one of the OFWs
to whom she sold the jewelries went to her and told her
that the jewelry she sold were all fraud, fake, and she
was paid a big amount. She was about to use it as a
collateral for loan and was discovered that it was a fake.
Can said secretary be liable for estafa in the Philippine
courts?
A: NO. The said act of the Secretary had nothing to do with
the performance of his functions as a secretary to the consul
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therefore the OFW can only file a case against her before the
courts of Japan.
PAR. 5: So if the offender committed the crime of treason,
conspiracy to commit treason, proposal to commit treason,
misprision of treason, espionage, inciting to war and giving
motives for reprisals, violation of neutrality,
correspondence with hostile country, or attempt to flee, he
can be charged before the Philippine Courts. OR if he
commits any of the crimes against the law of nations: piracy,
qualified piracy, mutiny, qualified mutiny, he shall be
qualified before the Philippine courts. The extraterritorial
application of the RPC applies.
ARTICLE 3 – DEFINITIONS
Art. 3. Definitions. — Acts and omissions punishable by
law are felonies (delitos).
Felonies are committed not only be means of deceit
(dolo) but also by means of fault (culpa).
There is deceit when the act is performed with deliberate
intent and there is fault when the wrongful act results
from imprudence, negligence, lack of foresight, or lack of
skill.
Based on this, we have two kinds of felonies:
1. INTENTIONAL FELONIES
An intentional felony is one which is committed
with deliberate intent.
The elements are:
(1) Criminal intent on the part of the offender
(2) Freedom of action in doing the act
(3) Intelligence of the offender
2. CULPABLE FELONIES
Culpable felonies are those wherein the wrongful
act results from imprudence, negligence, lack of
foresight and lack of skill.
The elements are:
(1) Criminal negligence
(2) Freedom of action
(3) Intelligence of the offender
Both intentional and culpable felonies have the same
elements except as to the first element. As to the first, we
have criminal intent, as to the second, we have criminal
negligence. Both intentional and culpable felonies are
voluntary acts. An intentional felony is a voluntary act
obviously by its definition—it is committed with deliberate
Criminal Law Review
Prosecutor Victoria C. Garcia
intent therefore the offender committed the act knowingly,
willfully, voluntarily. Insofar as culpable felonies are
concerned, they are also voluntary acts. Because in culpable
felonies, the wrong was also done by the offender although
without intent or malice.
More than that, insofar as criminal law is concerned,
voluntariness of an intentional felony is the concurrence of
intent, freedom, and intelligence, and voluntariness of a
culpable felony is the concurrence of negligence, freedom,
and intelligence.
A common element of intentional and culpable felony is
freedom of action. The offender is said to have acted with
freedom of action when he performs the act on his own free
will, without force, without duress, without uncontrollable
fear. Therefore, if an offender is prosecuted in court and it
was proven that he performed the criminal act because of
an uncontrollable fear, because of an irresistible force
employed on him, he shall be exempted from criminal
liability. It is an exempting circumstance. Why? Because
there is no freedom of action, an element of voluntariness.
Without voluntariness, there is no intentional felony, there
is no culpable felony.
Another common element of intentional or culpable felony
is intelligence. It is necessary that the offender who
performs the act must have the intelligence to do it.
Therefore, if the said criminal act is done by an imbecile, by
an insane, by a minor (15 and below), he is exempted from
criminal liability because insofar as criminal law is
concerned, he has no intelligence. Without intelligence,
there is no voluntariness, there is neither intentional nor
culpable felonies.
INTENT
An important element of an intentional felony is criminal
intent. Intent is the use of a particular means to achieve the
desired result. It is an internal state of the mind, therefore it
cannot be seen.
Q: So how is intent established?
A: It is established by the overt acts performed by the
offender in the commission of the crime, or by the means
employed by him to consummate the crime. So if an
offender, in attacking the victim, makes use of a lethal or
bladed weapon, he makes use of a knife, a gun—it reveals
his intent to kill.
If the offender opens the bag of another, without opening
the permission of the owner of the bag, it reveals intent to
gain. Here, intent is established by the overt acts performed
by the offender in the commission of the crime or the means
employed by him in order to consummate the crime.
There are two kinds of intent:
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1. GENERAL CRIMINAL INTENT
This is presumed by law from the mere doing of an
act. This requires no proof. The prosecution need
not prove it because the law presumes its presence.
2. SPECIFIC CRIMINAL INTENT
This must be proven by the prosecution beyond
reasonable doubt, just like any other element of a
crime.
If SCI is not proven by the prosecution, the offender
cannot be convicted of the crime charged; the
offender can either be acquitted of the crime
charged or convicted of another crime.
Q: X and Y were fighting. X pulled out an ice pick, and he
stabbed the arm of Y. Thereafter, he left. Y was brought
to the hospital, the doctor said it is a non-fatal wound, a
non-mortal wound. In fact, it is only a slight wound. Y,
after being released from the hospital, immediately
filed a case of attempted homicide against X. In order to
convict X of attempted homicide, is it necessary for the
prosecution to prove intent to kill?
A: YES. It is only specific criminal intent to kill. It is the
burden of the prosecution to prove that when X stabbed y,
hitting Y on the arm, there was on his part, intent to kill. If,
specific criminal intent was not proven by the prosecution,
then X has to be convicted only of slight physical injuries.
In the case of Rivera v. People, insofar as intent to kill is
concerned, there are several factors which must be looked
into in order to establish intent to kill:
1. Evidence of motive;
2. Nature and number of weapons used by the
offender;
3. The nature and number and location of wounds
inflicted on the victim;
4. Manner of committing the crime; and
5. The acts or statements made by the accused before,
after, or during the commission of the crime.
The Supreme Court said, these factors would establish the
present of absence of intent to kill.
Q: In the said case, was there evidence of motive?
A: YES. Revenge. The accused and the victim had an
altercation prior to the mauling incident.
Nature and number of weapons used. Although the
Rivera brothers were not armed with a bladed weapon, they
had their firsts, legs, and used these to maul the victim. One
of the even used a hollow block.
Nature, number, and location of wounds inflicted on the
victim. Based on the medical certificate, the wounds
sustained by the victim were all over his body although they
were superficial.
Criminal Law Review
Prosecutor Victoria C. Garcia
Manner of committing the crime. The Rivera brothers
acted in conspiracy. They attacked the victim
simultaneously in a synchronized manner. They acted as
one in mauling the victim.
The acts or statements of the accused before, after, and
during the commission of the crime. Before the
commission of the crime, they arrived, they surrounded the
accused. During the commission of the crime, they acted in
conspiracy, simultaneously attacking him. After the
commission of the crime, they left the scene when they
heard the coming of the police.
Supreme Court said all of this would reveal that there was
on the part of the accused intent to kill therefore even if the
wounds were only superficial, they were held liable of
attempted murder.
MOTIVE
Motive is the moving power which impels a person to do an
act to achieve the desired result. Motive always comes
ahead of intent, because motive is the moving factor in
order to accomplish the intent of the offender. Therefore,
motive is always ahead of intent. While intent is necessary
to determine the offender’s criminal liability, motive as a
rule is not.
WHEN MOTIVE IS NOT MATERIAL:
1. Motive is not material when the identity of the
accused is established.
2. Motive is not material when the offender admits
the commission of the crime.
3. Motive is not material when there is direct
evidence or eyewitness to the commission of the
crime.
4. Motive is not material if the act committed if the act
committed is culpable.
5. Motive is not material in acts mala prohibita.
Therefore as a rule, motive is immaterial to determine the
criminal liability of an offender. There are exceptions to
this. In the following instances, motive becomes
material to determine the criminal liability of an
offender:
1. When the act of the offender would result to
variant crimes
2. When there is doubt on the identity of the offender
3. When there is only circumstantial evidence to
prove the commission of the crime—no
eyewitness, no direct evidence.
Q: The judge arrived home, the gate was opened, and so
he drove his van inside. The gate was left open as the
helper was trying to get the attache case. The judge was
alighting from his van when suddenly here comes X on
board a motorcycle, he parked his motorcycle in front
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of the open gate and right there, pulled out his gun, and
fired at the judge. He only stopped when the judge
already fell on the ground, lifeless. X was arrested.
What case should be filed against X?
A: The act of X would result to variant crimes, therefore
motive is material. The victim here is a person in
authority—the judge. At the time of the assault, he was not
engaged in the performance of his function, therefore it is
necessary that the motive of the offender be taken into
account. If X killed the judge because of the latter’s past
performance of duty as a judge, X will be qualified with
qualified direct assault with murder. But if X killed the
judge because of a personal reason, not connected with the
performance of the judge’s functions, then he should be
prosecuted of murder. Since the act of X would result to
variant crimes, you have to know motive on his part.
Q: The victim X was found near a canal, he is already
dead, he has five stab wounds, all fatal wounds, no one
saw who killed him. No one saw who stabbed him. Who
will be charged in court? Here comes the mother of the
victim. She executed a sworn statement saying that the
victim was found dead near the canal 11 o’clock in the
evening. The mother said that 7 o’clock in the evening
three men A, B, and C fetched her son. Another witness
came out and said that at about 8 o’clock in the evening,
he saw A, B, and C together with the victim on board a
jeepney. And a last witness said that about 10 o’clock in
the evening, he was on board a tricycle and passed by
the same canal where the victim was found and there
he saw A, B, and C together with X and they seem to be
having an argument. In fact according to said witness he
saw A push the victim. Do A, B, and C have the motive to
kill the victim?
A: Motive becomes material to determine criminal liability.
They were the last ones seen with the victim. Motive
becomes material. Motive + circumstantial evidence =
conviction. But motive alone means acquittal. There must
be evidence. Motive + clear and convincing evidence =
conviction. But motive alone equals acquittal. There must
be evidence.
Insofar as the case of Fernandez v. People is concerned,
Fernandez was charged, and according to the Supreme
Court, he should be acquitted because the victim and the
accused did not know each other. They do not know each
other. The accused has no motive to kill the victim. Since his
identity was not established, motive becomes material, and
the SC said they could not see any motive on the part of the
accused to kill the victim as they did not know each other
from the very start.
MISTAKE OF FACT
A defense against criminal intent is mistake of fact. This
refers to misapprehension of facts on the part of the person
who caused injury to another. If a person acted under
mistake of fact, he is absolved of criminal liability. It is
Criminal Law Review
Prosecutor Victoria C. Garcia
absolutory cause because the offender acted without
criminal intent.
For one to be absolved by reason of mistake of fact, the
following elements must be proven:
1. That the act done would have been lawful and
justifiable had the facts been as the accused
believed them to be.
Granting for the sake of argument that the facts are
what they accused believed them to be, the said act
will be justified.
2. That the intention of the offender in performing the
act must be lawful.
He must be guided by a lawful, legitimate, justified
intent.
3. That mistake must be without fault, mistake,
carelessness, negligence on the part of the offender.
It is necessary that the offender must have
exercised diligence in ascertaining the true facts of
the case. He cannot have acted with negligence and
at the same time invoke mistake of fact. Therefore,
mistake of fact can only be a defense in
intentional felonies. Mistake of fact is not a
defense in culpable felony.
Q: X and Y had a fight. X lost the fight and so X left the
scene, running towards home. But Y was shouting, “I’m
not done with you! I’m going to kill you! I’m going to go
inside your house and kill you!” Those were the threats
made by Y on X. X reached the house, he was so afraid.
He knew that Y would do it. He had known Y, even
before, and he knew that Y would kill him. And so,
afraid, what X did, was that he took a knife, sharpened
a knife, and everywhere he goes inside the house, X
would be bringing along the said knife. In case Y would
come, he was ready to defend himself. 3:00AM, he felt
sleepy. He went inside the bedroom, he fell asleep, but
still holding the knife on his right hand, ready for any
attack. His brother Z knew how nervous X was of Y. Z
the brother wanted to play a joke on X. And so he took a
long bolo, which is a fake one, and then he went inside
the bedroom went on top of X, raised the bolo, made
noise so that his brother would be awaked, and indeed
he was awakened. Upon seeing that a man had a bolo on
his right hand about to hack him, X stabbed that man.
The man fell, X realized that it was Z his brother. Z
however is already dead. So X is prosecuted for the
crime of homicide. X said no, he is not liable, according
to him, he acted under mistake of fact. Would his
defense of mistake of fact lie in his favor?
A: YES. The elements of mistake of fact are as follows:
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1. That the act done would have been lawful and
justifiable had the facts been as the accused
believed them to be. Granting for the sake of
argument that the facts are what X believed them
to be, that his enemy Y was on top of him raising a
bolo and about to hack him, the act of X is justified.
It amounted to self-defense.
2. That the intention of the offender in performing the
act must be lawful. This intention was to save his
life, there was a man. When he was awakened,
there was a man on top of him, about to hack him.
His intention was to preserve his life.
3. That mistake must be without fault, mistake,
carelessness, negligence on the part of the offender.
There was no fault, there was no negligence on his
part. He awakened and there was that man. Before
he attacked the man, must it still be necessary for
him to ask, “Sino ka? Anong gagawin mo?” NO. His
intention was to save his own life. The bolo was in
a raised position about to hack him.
Criminal Law Review
Prosecutor Victoria C. Garcia
Last element, that mistake must be without fault, mistake,
carelessness, negligence on the part of the offender. There
was fault, there was negligence, there was carelessness on
his part. It is so easy to determine the identity of these
persons had he turned on the light. But he deliberately did
not do so. All the elements of mistake of fact are absent.
Therefore, he has to be convicted as charged for two counts
of homicide.
What if the husband said, there was no intent to kill. THERE
WAS INTENT TO KILL! The victims died—this is the best
evidence of intent to kill.
There are certain crimes that can be committed even if
there is no intent to kill:
1. Culpable felonies: because what is present is
negligence.
2. Acts mala prohibita: does not require criminal
intent.

Therefore, all the elements being present, X is absolved of These are acts which are wrong because there is a
criminal liability. Note that it is an absolutory cause, akin to law that defines and punishes the said act. Common
an exempting circumstance. There is no criminal liability, example is illegal possession of loose firearm. To
but there is civil liability. possess, or to own a firearm is not per se illegal. But
it only becomes an illegal, punishable, criminal act
Q: What if the husband and the wife were fast asleep, if the owner failed to register, did not have the
about 1:00AM, husband was awakened and tried to license, the permit to carry and own the said
reach for the wife on the other side of the bed. The wife firearm. Hence, it is an act malum prohibitum.
wasn’t there, the wife was gone. The husband stood up,
got out of the bedroom, and the husband heard some As opposed to an act malum in se. This is an act
noise, murmurs at the kitchen. So he went down, and which is inherently evil or wrong. It is wrong per
there he saw the silhouette of two persons embracing, se, wrong by its very nature. For example, to kill a
and kissing each other on the lips. There was pain, there person. There need not be a law to state that to kill
was jealousy on the part of the victim. He believed that a person is a wrongful act. Everyone should know
that was his wife embracing and kissing another man. that no one has the right to take the life of another.
And so he deliberately did not turn on the light, walked It is inherently evil or wrong to kill someone.
slowly towards the scene, and took a knife and stabbed
both persons. After stabbing, when these two persons ACTS MALUM IN SE ACTS MALA PROHIBITA
fell on the floor, that was the time when said husband Acts which are inherently evil Acts which are only wrong
turned on the lights and it turned out that these persons or wrong. Wrong per se, because there is a law that
were their helper and her boyfriend. Here comes the wrong by their very nature. defines and punishes the act.
wife rushing. The wife came from the comfort room. X The basis of criminal liability The basis of criminal liability
for prosecuted for two counts of homicide. He said he is the moral trait of the is the actual doing of the
offender. prohibited act.
acted under mistake of fact. Will the defense lie in his
Good faith or lack of criminal
favor? Good faith or lack of criminal
intent is not a valid defense
A: NO. First element, that the act done would have been intent is a valid defense.
unless otherwise provided.
lawful and justifiable had the facts been as the accused Modifying circumstances such
believed them to be. Granting for the sake of argument that No modifying circumstances
as mitigating and aggravating
may be appreciated by the
the facts are what he believed—that there was his wife, circumstances are considered
court unless otherwise
embracing, kissing another man—was he justified in killing by the court in imposing the
expressly provided.
them? NO. He was not justified in killing his wife and penalty.
another man. First element is absent. It must always be an act done,
The stage in the commission
hence, always in the
of the crime whether the
consummated stage. No
Second element, that the intention of the offender in crime is in the attempted,
frustrated, no attempted
performing the act must be lawful. It is absent, his intention frustrated, or consummated
stages, unless provided by
was to KILL the said persons. He was guided by criminal stage is considered by the
law.
intent.
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A.Y. 2020 – 2021 Prosecutor Victoria C. Garcia
court in imposing the said of the crime of Murder, for having killed the victim with
penalty. the use of a motor vehicle. The offender having ran over
The degree of participation of There is no degree the victim with the use of a motor vehicle. These were
an offender whether he is a considered. All perpetrators the allegations in the information. During the trial on
principal, accomplice, or an are punished to the same
the merits of the case, after the presentation of the
accessory is considered in extent. No principal, no
imposing the penalty. accomplice, no accessory.
prosecutor’s evidence, the defense counsel presented
the accused himself. X the accused testified that he has
no intent to kill the victim. In fact, he did not know the
NOTE: If asked in the bar, and the examiner assigned 5
victim. So how could he have intended to kill him? X
points, give all distinctions. But if only 1 point, state only 2-
said he lost control of the brakes of his car, hence he ran
3 distinctions. Otherwise, you will be consuming too much
over the victim, killing the victim. Because of this, the
time.
judge believed the accused, and so the judge, although
the crime charged was murder, convicted the accused X
Q: Can an act malum in se absorb an act mala prohibita?
of reckless imprudence resulting in homicide. X
A: In the case of Loney v. People the SC said NO. SC said, an
appealed and said that the judge committed a grave
act mala in se such as reckless imprudence causing damage
mistake in convicting him of the same in an information
to property cannot absorb mala prohibita like violation of
that alleges murder, because in doing so, the judge
the mining act, etc. SC said, what makes an act malum in se
deprived him to be informed of the nature and cause of
is the presence of criminal intent or negligence on the part
accusation against him. Is the argument of X on his
of the offender, whereas, what makes an act malum
appeal correct?
prohibitum is the presence of a special penal law that
A: NO. Even if the crime charged is murder, an intentional
defines and punishes the act. Therefore, one cannot absorb
the other. felony, it is correct for the court to convict him of reckless
imprudence resulting in homicide if that is what the
NOTE: If you were asked to distinguish acts malum in se evidence has proven. Reason is, the said culpable felony of
reckless imprudence resulting in homicide is necessarily
versus acts mala prohibita, refrain from stating acts mala in
included in the intentional felony of murder. Therefore, it
se are those punished under the RPC, and acts mala
cannot be said that the accused was deprived of his right to
prohibita are those punished under SPL because this is not
be informed of the nature and cause of accusation against
totally true. There are acts under the RPC that are
him.
considered malum prohibitum, and there are also acts in
SPL which are considered malum in se.
Second, a culpable felony is always LESSER in gravity than
that of an intentional felony. Therefore, in this case, the
- Under Art. 221, Technical Malversation of the RPC,
judge was correct in convicting the accused of reckless
this is considered as a felony under the RPC yet the
imprudence resulting in homicide although the crime
Supreme Court said in the case of Isidoro v. People
charged is an intentional felony of murder.
that it is malum prohibitum, not malum in se. Good
faith is immaterial. SC said no matter how noble the
objective of the public officer is, the moment he
transferred the funds from that which has been
earmarked by law for a particular purpose to
another public use, technical malversation is
committed. Therefore, good faith is immaterial,
lack of criminal intent is immaterial. The mere
transfer of funds to another public use gives rise to
the crime.
- Plunder is punished under R.A. 7080. Although it is
punished by an SPL, Supreme Court said in the case
of Estrada v. Sandiganbayan that it is malum in
se. SC said that it is malum in se since it is
inherently evil or wrong for a public officer to
amass, accumulate, acquire ill-gotten wealth.
Hence, criminal intent matters; good faith is a
defense in the crime of plunder, since it is malum in
se although punished by a special penal law.

Q: What if X was charged with the crime of murder? The

information alleges that the undersigned public
prosecutor hereby accused the above-named accused
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FEBRUARY 24, 2021
ARTICLE 4 – CRIMINAL LIABILITY
Art. 4. Criminal liability – Criminal liability shall be
incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different from
that which he intended.
2. By any person performing an act which would be
an offense against persons or property, were it not
for the inherent impossibility of its
accomplishment or an account of the employment
of inadequate or ineffectual means.
PROXIMATE CAUSE DOCTRINE AND EFFICIENT
INTERVENING CAUSE
Under Art. 4(1), criminal liability shall be incurred by any
person committed By any person committing a felony
although the wrongful act done be different from that which
he intended. This provision is otherwise known as
the proximate cause doctrine. Its elements are:
1. That the intended act is a felonious act;
2. That the resulting act is a felony; and
3. The resulting felony is the direct, natural and
logical consequence of the felonious act of the
offender.
When you say proximate cause doctrine, it means that
under this doctrine, an offender becomes criminally liable
of the resulting felony although that is not his intended
felony. Provided that he was performing a felonious act, and
such was the proximate cause of the said resulting felony.
Even if he has no intention to commit the said resulting
felony, his intention is different, for as long as the said
resulting felony is the direct, natural and logical
consequence of his felonious act, he becomes criminally
liable for the said resulting felony.
When you say proximate cause, it is the cause that sets into
motion all other causes and which unbroken by an efficient
intervening cause produces the felony without which the
felony would not have resulted. For one to be liable, it is
necessary that there must be no efficient intervening cause
that has broken the causal connection between the
felonious act done by the offender and the resulting felony.
The moment that there is an efficient intervening cause, the
offender would not become criminally liable for the
resulting felony. He will be liable for another crime because
the proximate cause would be that efficient intervening
cause and his felonious act would only be a remote cause.
Hence, he does not become criminally liable if there is an
efficient intervening cause.
Criminal Law Review
Prosecutor Victoria C. Garcia
An efficient intervening cause is an active force which is a
distinct act or fact absolutely foreign from the felonious act
of the offender.
If a problem is given about proximate cause doctrine, the
first thing that you have to look into in the problem is if the
said offender is performing a felonious act. If the said
offender is performing a felonious act, then, he becomes
criminally liable for the resulting felony which is the direct,
natural and logical consequence. But, if in the first place, he
was not doing a felonious act, whatever felony results, he
does not become criminally liable because in the first place,
he was performing a lawful act.
Q: X asked Y to drink a glass of wine, let us say, a glass
of tuba or a glass of lambanog. X invited Y, "come on
drink!", out of friendship. At first, Y refused because he
has an allergic reaction to tuba. However, later on, out
of pakikisama, he drank the said glass of tuba. True
enough, after drinking it, he bacame dizzy, unconscious
and he fell. He roll down to a deep cliff and thereafter,
he died. Is X criminally liable for the said death of Y?
A: No. X is not criminally liable because X's act of merely
inviting Y to drink the glass of tuba cannot be considered as
a felonious act.
Q: What if in the said problem, X told Y, "drink this
tuba." Y refused, "I am allergic." But X said, "if you will
not drink it, my other friends will hold you and I will
forcibly pour this tuba on your mouth. Drink it or not."
Afraid, Y took the said glass of tuba and because he was
allergic, he became dizzy and unconscious. He fell on a
deep cliff and thereafter, he died. Is X criminally liable
for the said death of Y?
A: Yes. X is criminally liable. His act of threatening Y to drink
the tuba was a felonious act. It resulted to a felony, the death
of Y. The said death of Y, homicide, was a direct, natural and
logical consequence of X's act. Therefore, in this case, X
becomes criminally liable for the death of Y.
In the case of Urbano v. IAC, the said offender hacked the
victim. The victim parried the blow so it was his hand that
was hit by the bolo. He was brought to the hospital, and his
wound was determined as not a fatal wound. He was
immediately allowed to go home. 21 days thereafter, he
started showing signs of tetanus poisoning. He was brought
to the hospital and the following day, he died out of tetanus
poisoning.
The same facts in the case of People v. Villacorta, the
accused stabbed the victim with a sharpened bamboo stick.
The victim was brought to the hospital. His wound was not
a fatal wound so he was allowed to go home. 21 days
thereafter, the victim started showing signs of tetanus
poisoning. On the 22nd day, he died out of tetanus
poisoning.
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In the case of Urbano v. IAC, the accused is not liable for
homicide. In the case of People v. Villacorta, the Supreme
Court said that the accused is also not liable for the death of
the victim. In both cases, the Supreme Court said, there was
an efficient intervening cause that has broken the causal
connection between the act of hacking or stabbing and the
resulting death of the victim and that is the tetanus
poisoning. The Supreme Court relied on the expert
testimony of the doctors that tetanus poisoning has an
incubation period of 14 days. Therefore, the Supreme Court
said, if the said hack wound inflicted by the offender on the
victim had tetanus germs at the time of the stabbing or
hacking, the victim would have died within 2 weeks or 14
days. But, in these cases, the victims survived and showed
signs only on the 21st day. Therefore, the Supreme Court
said, these victims performed acts that brought the tetanus
germs on their wounds. Hence, the accused would not be
liable for the death of the victim.
In the case of Urbano v. IAC, because there was settlement
as to the civil liability, it was an acquittal. In the case
of People v. Villacorta, the Supreme Court only convicted the
accused of slight physical injuries because the prosecution
relied solely on the proximate cause doctrine that it failed
to prove intent to kill. Because of that, the Supreme Court
said, it is only slight physical injuries but qualified by
treachery because the attack was done suddenly without
the victim having any opportunity to defend himself. So, in
that case, the efficient intervening cause, the tetanus
poisoning, has broken the causal connection between the
act of stabbing or hacking and the resulting felony. Hence,
the accused is not criminally liable.
Q: X and Y decided to have a little celebration, a
drinking spree. It will be a long weekend so X and Y,
officemates and best of friends, had a drinking spree.
However, as they become drunk, they also kept on
discussing politics. X is pro-Duterte and Y is against.
The 2 would not meet. Because of that, their argument
became a heated one until they engaged in a fight.
During the said fight, X, who has a fan knife, stabbed Y
on the chest. X left. However, the stab wound inflicted
by X on Y, although on the chest, was only shallow. It
was not deep and fatal. While Y was on his way home,
he passed by a big house wherein there was a birthday
celebration. One of the guests came out of the terrace,
pulled out his gun and fired shots in the air. One of the
stray bullets hit Y and died instantly. An autopsy,
however, was conducted on Y and the stab wound
inflicted by X was discovered. The wife filed a case of
homicide against X under the proximate cause doctrine.
Is X criminally liable for the death of Y?
A: No. X is not criminally liable for the death of Y. Although
he was performing a felonious act, although it resulted to a
felony, the said felony was not the direct, natural and logical
consequence of the said felonious act. There was an efficient
intervening cause, the stray bullet hitting Y. Therefore, X
cannot be held criminally liable for the death of Y. If intent
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Prosecutor Victoria C. Garcia
to kill will be proven, X can be held liable for attempted
homicide. Otherwise, it will only be physical injuries.
Under Art. 4(1), there are 3 circumstances wherein the
offender becomes criminally liable for the resulting felony
although different from that which he intended. We have
the so-called: (a) aberratio ictus or mistake in the blow; (b)
error in personae or mistake in the identity; and (c) praeter
intentionem when the consequence went beyond the
intention.
ABERRATIO ICTUS
Aberratio Ictus or mistake in the blow is a situation wherein
the offender directed the blow at his intended victim but
because of poor aim, the blow landed on another person. In
this case, both the intended victim and actual victim are
there at the scene of the crime. However, because of lack of
precision on the part of the said offender, the blow intended
for the intended victim was done on the actual victim. It was
the actual victim who suffered the blow.
Generally, it results to two crimes: (a) the crime against the
intended victim; and (b) the crime against the actual victim.
If these 2 crimes happen to be grave or less grave felonies,
Art. 48 of the Revised Penal Code or complexity of crimes
shall be applied. Therefore, only 1 Information shall only be
filed in court. But, if one of the resulting felonies happens to
be a light felony, it cannot be complex. Therefore, 2 cases
shall be filed in court.
In effect, if the complexity of crimes under Art. 48 will be
applied in the mistake in the blow, it will be beneficial to the
accused. He will not be prosecuted for 2 crimes, instead, he
will be prosecuted only for 1 crime. Only 1 Information shall
be filed in court, although, if found guilty, the penalty for the
most serious crime in its maximum period shall be the one
imposed.
Q: The husband, X, works in Manila. He goes home to the
province every weekend. One Saturday morning, the
husband arrived home. The brother of the husband
informed him that their neighbor, Y, tried to molest the
wife, Z. X was so mad at the neighbor for taking
advantage of the fact that he was working in Manila in
trying to molest Z. Because of that, the following day, X
sharpened his bolo, went directly to the house of Y and
upon seeing Y, without any warning, he hacked Y.
However, Y evaded the blow. The blow landed on the 4-
year-old granddaughter of Y, whom Y was holding at
that time. The bolo hit the head of the child and the child
instantly died. What crime/s is/are committed by X?
A: First, insofar as Y, the intended victim is concern, the
crime committed is attempted murder. X deliberately
adapted the ways, means and methods so that Y would not
be able to put up a defense. Therefore, it is attempted
murder. However, Y was able to evade the blow. So, murder
was not consummated. Second, insofar as the child is
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concern, the crime committed is murder for 2 reasons: (a)
whenever the victim is a child which is totally defenseless,
the act of killing is always done with treachery; and (b) in
the case of People v. Flora, the treachery that is present
when the accused attacked the intended victim is also
present on the actual victim.
Since these 2 grave felonies, attempted murder and murder,
were the product of a single act of hacking and complex
under Art. 48, therefore, only 1 Information shall be filed in
court - People v. X for the crime of murder with attempted
murder. If convicted, the penalty for the most serious crime,
murder, shall be the one imposed in its maximum period.
Q: What if in the same problem, X went to the house of
Y with the use of his long-sharp bolo, he hacked Y. Y,
however, evaded the blow and the blow landed on his
4-year-old granddaughter, whom he was carrying at
that time. The granddaughter was hit on the abdomen.
The granddaughter was brought to the hospital and
because of immediate medical operation done on the
said child, the child survived. What crime/s is/are
committed by X, of what crime shall he be prosecuted
of?
A: Insofar as the intended victim is concern, the crime
committed is the same, attempted murder. Insofar as the
child is concern, the crime committed is serious physical
injuries. Although the child sustained a fatal wound, there
was no intent to kill. Therefore, it cannot be frustrated
murder because the intent of X was against Y, it just so
happened that the bolo landed on the child. Hence, it will
only be serious physical injuries.
We have here, 2 felonies: (a) attempted murder, which is a
grave felony; and (b) serious physical injuries, which were
the product of a single act. Therefore, Art. 48 still applies.
The crime committed will be the complex crime of
attempted murder with serious physical injuries. If
convicted, the penalty for the most serious crime, in this
case, attempted murder, shall be imposed in its maximum
period.
Q: What if in the same problem, when X went to the
house of Y. He hacked Y but Y evaded the blow. Because
of X's poor aim, Y was not hit. It was the child whom Y
was carrying who was hit. The child was hit on the
forearm and was brought to the hospital. The doctor
said that it was only a very light wound, it would heal
within a period of 5 days. What crime/s is/are
committed by X?
A: Insofar as the intended victim, Y, was concern, still it is
attempted murder. Insofar as the child is concern, it will be
slight physical injuries. Since one of the resulting felonies is
a light felony, Art. 48 cannot be applied. Therefore, X, this
time, will be prosecuted for 2 crimes: (a) 1 Information for
attempted murder insofar as Y is concern; and (b) 1
Information for slight physical injuries insofar as the child
is concern. Complexity of crimes will not apply because
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Prosecutor Victoria C. Garcia
complex crimes only apply if the resulting felonies would be
2 or more grave or less grave felonies.
ERROR IN PERSONAE
The 2nd situation under Art. 4(1) is error in personae or
mistake in the identity. It is a situation wherein the offender
directed the blow at a person whom he thought was the
intended victim but the intended victim was not at the scene
of the crime. He has mistaken the actual victim to the
intended victim.
Q: What is the effect of error in personae or mistake in
the identity on the criminal liability of the offender?
A: The answer should be "I qualify." You have to qualify,
depending on the provision of Art. 49 of the Revised Penal
Code. Under Art. 49, if the intended felony is different from
the resulting felony in case of mistake in the identity, the
offender shall be prosecuted for the said resulting felony.
However, the penalty to be imposed should be the lesser of
the 2 penalties between the intended felony and the felony
actually committed. Therefore, in this case, mistake in the
identity is a mitigating circumstance. It lowers the
imposable penalty since the lesser of the 2 penalties shall be
imposed in its maximum period.
However, if the intended felony is just the same as the felony
actually committed, there is no difference, there is no
variance between the intended felony and the felony
actually committed, then, the same penalty shall be imposed
upon the offender. Hence, mistake in the identity has no
effect on the criminal liability of the offender. It will no
longer mitigate or extenuate the penalty to be imposed.
Q: The son, Y, arrived in the house crying and informed
his father, X, that when he was walking, he was stopped
at the crossing by Z who forcibly took his bag and
money. X was so mad since his only son who was only 9
years old was bullied. So, X went to the house of Z.
However, Z was not there. So, X immediately went to Z's
place of work in a construction site. Walking towards
the construction site, X already saw Z at a distance.
While walking very fast, X picked up a piece of stone
and upon reaching Z, he immediately used the said
stone to hit and hit Z. Z was unaware of the attack,
hence, he was not able to defend himself until he fell on
the ground. He was already bleeding on the floor when
X left the scene. X has no intention to kill Z, his only
intention was to injure Z. As X was leaving the
construction site, he saw Z coming fresh. He was
shocked so he looked back. It was only then that he
realized that the person whom he hit repeatedly and
seriously injured was the identical twin brother of Z.
The twin brother of Z filed a case for serious physical
injuries against X. According to X, he has no intention to
injure the twin brother, his intention was to injure Z.
Therefore, he is not criminally liable absent criminal
intent. Also, it was a clear case of mistake in the
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identity, therefore, he should be absolved of any
criminal liability. Are the arguments of X meritorious?
A: The 1st argument has no merit. Even if he has no intent
to injure the twin brother, the fact that he was performing a
felonious act, he becomes criminally liable for its resulting
felony although on a different victim. The 2nd argument
also has no merit. Mistake in the identity is not an
absolutory clause. It is only a mitigating or an extenuating
circumstance if there is a variance between the intended
felony and the resulting felony. In this case, there was no
variance between his intended felony to injure Z and the
resulting felony which is the injuries on the twin brother.
Therefore, X should be held criminally liable for serious
physical injuries and the penalty prescribed by law shall be
the one imposed.
Q: In the course of a fight, X gave a big strong punch on
the face of Y who thereafter landed on the ground. X left
because he felt that he had already defeated Y.
However, Y wanted to retaliate. As he was standing up,
he was pulling his fan knife on his pocket. He opened it
and without looking, he stabbed the person next to him.
He thought that it was X, however, X was already gone
and the person whom he stabbed was his own father.
His own father, upon seeing X punched his son, Y, went
to the scene of the incident to aid Y. However, he was
stabbed by his own son. The father, thereafter, died. Y
is now being prosecuted for the crime of parricide. Y
argued that he has no intent to kill his father. Will his
defense lie?
A: His defense would not lie in his favor and he should be
held guilty of the crime of parricide. His act of stabbing the
father was a felonious act, although, on a different victim.
Since he was performing a felonious act, he becomes
criminally liable for the resulting felony, although on a
different victim. Although he was guilty of the crime of
parricide because it was the crime actually committed, Art.
49 applies because there is a difference, there is a variance,
between X's intended felony and resulting felony. X merely
intended to stab X, therefore, to commit homicide. However,
since X stabbed his father, the felony actually committed
was parricide. Although, he is convicted of parricide, since
Art. 49 applies, the lesser of the 2 penalties between the
intended felony and the felony actually committed shall be
the one imposed. Hence, the judge shall convict Y of
parricide but the penalty to be imposed will not be that of
parricide, but, will be that of homicide.
PRAETER INTENTIONEM
The 3rd situation under Art. 4(1) is known as Praeter
Intentionem when the consequence went beyond the
intention. It is a situation wherein the offender directed the
blow at his intended victim and the intended victim actually
received the blow, however, the injurious result is far
greater than what could have been anticipated from the
means employed by the offender.
Criminal Law Review
Prosecutor Victoria C. Garcia
In order for praeter intentionem to lie, the following
elements must be present:
1. That a felony has been committed;
2. That there is a notable disparity between the
means employed by the offender and the resulting
felony and out of the means employed, the
resulting felony could not have been foreseen.
In the case of People v. Noel Sales, the father was charged
with parricide. After repeatedly hitting his son with a piece
of wood while the body of the son was tied to a tree, the son
died. He said that he has no intention to kill the son, his
intention was only to discipline the son. The Supreme Court
held that he was liable for parricide no matter how much he
said that he has no intention to kill his son. The fact that the
child died, intent to kill becomes a general criminal intent
which requires no proof.
The RTC, in this case, gave him the benefit of praeter
intentionem. However, according to the Supreme Court, the
RTC was erroneous in considering praeter intentionem n
favor of Noel Salas. Praeter intentionem would not lie
because there was no notable disparity between the acts
done by the father and the resulting felony. The acts done
by the father, in repeatedly hitting the son with a piece of
wood while the body of the son was tied to a tree, are acts
that would produce, and indeed it produced, the death of
the son. Hence, the Supreme Court said, praeter
intentionem cannot be considered in favor the said father
so as to mitigate his criminal liability.
Q: The husband and the wife were having an argument.
In the course of the said argument over financial
matters, the argument was in the kitchen. The wife was
setting the table, as she was walking back and forth,
bringing the plates, utensils and glasses, the husband
suddenly slapped her strongly. The wife loss her
balance so she fell on the floor and hit her head. She
started to bleed. The husband immediately brought her
to the hospital, however, the wife died. The husband is
liable for the crime of parricide, but, should he be given
of the benefit of praeter intentionem?
A: Yes. The husband's act of slapping the wife was a
felonious act and parricide resulted which is the direct,
natural and logical consequence of his felonious act of
slapping. However, praeter intentionem would lie in his
favor. There was a notable disparity between the said
husband's act of slapping and resulting felony, which is
death. No one could have foreseen that out of the said act of
merely slapping the wife, death would result. Therefore,
praeter intentionem can be considered in favor of the said
husband so as to mitigate the imposable penalty.
IMPOSSIBLE CRIME DOCTRINE
Under Art. 4(2), criminal liability shall be incurred by any
person performing an act which would have been a crime
against persons or property where it not for its inherent
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impossibility or the employment of ineffectual inadequate
means.
An impossible crime is one wherein the act done would
have resulted to a crime against persons or property but it
is not accomplished because of its inherent impossibility or
because of the employment of inadequate or ineffectual
means. Therefore, an impossible crime is not, in reality, a
crime. The acts done by the offender did not ripen into a
crime, a crime was not produced because of its inherent
impossibility. Nevertheless, even though objectively no
crime was committed, the offender will be charged for an
impossible crime because of the offender's criminal
tendency. Therefore, the criminal charge filed in court is an
impossible crime.
The elements of an impossible crime are:
1. The act done would have amounted to a crime
against persons or property;
2. The act was done with evil intent;
3. The act was not accomplished because of its
inherent impossibility or the means employed are
ineffectual or inadequate; and
4. The act does not fall under any other provision of
the RPC.
Based on the first element, an impossible crime would only
apply if the acts done by the offender, had it been
consummated, would have amounted to a crime against
person (Title VIII, Book II of the RPC) or property (Title X,
Book II of the RPC). An impossible crime would not apply to
any other crime.
Q: The husband discovered that the said wife was
committing adultery. So, the husband filed a case of
adultery against the wife and here paramour. The case
was filed before the Office of the Public Prosecutor.
When subpoenaed was served, the affidavit of the wife
stated that adultery would not lie against her because
she was not born a female. She was born male, she just
had sex-change. Because of this, based on the facts, the
public prosecutor indicted the said accused, woman, of
the crime of impossible crime of adultery. Is the public
prosecutor correct?
A: The charge is wrong. The first element is immediately
absent. Adultery is under Title XI, Book II of the RPC (Crimes
Against Chastity) and not under Title VIII nor Title X.
Therefore, impossible crime would not lie in case of
adultery.
Under the second element, it is necessary that there is evil
intent. Under the third element, the act was not
accomplished because of its inherent impossibility. When
you say inherent impossiility, under any and all
circumstances, the act would not ripen into a crime.
In the case of Intod v. CA, the Supreme Court discussed the
kinds of inherent impossibility. These are:
Criminal Law Review
Prosecutor Victoria C. Garcia
1. Legal Impossibility - all the intended acts, even if
accomplished, would not amount to a crime
2. Physical or Factual Impossibility - extraneous
circumstances are unknown to the offender,
beyond the control of the offender, which
prevented the consummation of the crime
In the said case, Intod and his company were charged with
attempted murder. However, the Supreme Court said that
they are guilty only of an impossible crime. All the elements
of impossible crime are present. First, the act done, had it
been accomplished, would have amounted to a crime of
murder of the victim. Second, the act was done with evil
intent because the intention was to kill the victim. Third, the
act was not accomplished because of its inherent
impossibility - physical impossibility. Unknown to Intod
and company, the victim was not there. Therefore, no
matter how much they peppered their room with bullets,
she would not die, she was not there in the first place.
Hence, the Supreme Court said, it would be impossible
crime and not an attempted murder.
This decision was strongly criticized by the legal luminaries.
They are saying that it is an erroneous decision because the
Supreme Court failed to consider the fourth and last
element - the act done does not fall under any other
provision of the RPC. Based on this, an impossible crime is
a crime of last resort. The crime of impossible crime should
only be filed if the act done by the offender would not
constitute any other violation of the RPC. Legal luminaries
are one and the same in saying that, yes, it could not be
attempted murder because the victim was not there.
However, it could have been a malicious mischief because
the room was seriously damaged because of the act of the
offenders in firing repeatedly at the said room. However,
the decision stays that it is an impossible crime.
In the case of Jacinto v. People, the SC said that the crime
committed is an impossible crime and not qualified theft.
The act done would’ve amount to theft, a crime against
property. It was done with evil intent and the act was not
accomplished because unknown to them, the check was
worthless, it has no fund. The last element was totally
disregarded by the SC. The SC only stated 3 elements. The
Office of the SolGen argued that although the offenders
were not able to get the value of the checks, the fact that
they took the checks and did not remit it, means that there
is already theft. The SC said no, theft requires intent to gain.
It is necessary that the thing taken has no value. Here, the
worthless checks has no value, hence, it is an impossible
crime.
Q: X was mad at his master. Coming from the market, he
found the master on the bench, sleeping. He went
inside. 30 minutes later, he went and saw the master
still on the bench. He tiptoed towards the master and he
believed that the master was asleep. He took a knife to
take a revenge and repeatedly stabbed the master.
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Based on the autopsy report, even before the stabbing,
the master was already dead. The cause of death was
not the stabbing, it was heart attack. Can the servant X
be charged in court?
A: He should be charged of an impossible crime of murder.
The act done by him would’ve amounted to murder, a crime
against person. It was done with evil intent. The act was not
accomplished because of its inherent impossibility. Even if
he performs all the acts of murder, it will not be produced
because the person is already dead. There is legal
impossibility. It is an impossible crime of murder. The act
would not fall under any other provision in the RPC.
Q: X had been looking at the cellphone of Y. X followed
Y and they were already in a portion of the street, then
X told Y “This is a holdup. Give me the phone or I will
stab you.” Y gave the phone and ran away. X looked at
the phone and noticed that it looks exactly like the one
he lost a week ago. And indeed, it was his phone. He was
arrested and charged with an impossible crime of
robbery. Is he liable?
A: No. The act done would’ve amounted to simple robbery
because it was done with intimidation. The act was done
with evil intent. However, the act was not accomplished
because of its inherent impossibility. Robbery would not
arise because it is necessary that the thing taken must
belong to another. There is legal impossibility. However, the
last element is absent. The act done would fall under any
other provision of the RPC which is grave coercion by
compelling someone by means of violence or intimidation
to do an act against his will. Hence, X would not be charged
of an impossible crime of robbery, but grave coercion under
Art 286, in particular, compulsive coercion.
ARTICLE 5 – DUTY OF THE COURT IN
CONNECTION WITH ACTS WHICH SHOULD BE
REPRESSED BUT WHICH ARE NOT COVERED BY
THE LAW, AND IN CASES OF EXCESSIVE
PENALTIES
Art. 5. Duty of the court in connection with acts which should
be repressed but which are not covered by the law, and in
cases of excessive penalties. — Whenever a court has
knowledge of any act which it may deem proper to repress
and which is not punishable by law, it shall render the
proper decision, and shall report to the Chief Executive,
through the Department of Justice, the reasons which
induce the court to believe that said act should be made the
subject of legislation.
In the same way, the court shall submit to the Chief
Executive, through the Department of Justice, such
statement as may be deemed proper, without suspending
the execution of the sentence, when a strict enforcement of
the provisions of this Code would result in the imposition of
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Prosecutor Victoria C. Garcia
a clearly excessive penalty, taking into consideration the
degree of malice and the injury caused by the offense.
Under Art 5, if a person is charged in court, and the court
finds that the act of which he was charged was not defined
and penalized by any other law, the court must dismiss the
case. DO NOT SAY ACQUIT THE ACCUSED. Acquittal comes
after trial on the merits.
Under Art 5, the court may, through the DoJ, recommend
that this act be subject of a penal legislation.
If a judge tried the case and all the elements have been
proven, even if the judge took pity of the accused under the
circumstances, the judge have no recourse but to impose
the penalty prescribed by law. Judges only apply the
penalty. However, the judge through the Secretary of Justice
can recommend to the President that this accused be given
clemency.
ARTICLE 6 – CONSUMMATED, FRUSTRATED,
AND ATTEMPTED FELONIES
Art. 6. Consummated, frustrated, and attempted felonies. —
Consummated felonies as well as those which are frustrated
and attempted, are punishable.
A felony is consummated when all the elements necessary
for its execution and accomplishment are present; and it is
frustrated when the offender performs all the acts of
execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt acts, and does not
perform all the acts of execution which should produce the
felony by reason of some cause or accident other than this
own spontaneous desistance.
TWO PHASES IN THE COMMISSION OF THE CRIME
1. Subjective Phase – this is the portion in the
commission of the act wherein the offender
commences the commission of the crime up to the
time that he offender still has control over his acts.
The offender can either proceed with the
commission of the crime or desist. If he desisted, he
does not incur criminal liability.
2. Objective Phase – the moment the offender loses
control over his acts, he is already in the objective
phase of committing a felony.
THREE STAGES IN THE COMMISSION OF A FELONY
A. Attempted Stage
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There is an attempt when the offender commences
the commission of a felony directly by overt acts,
and does not perform all the acts of execution
which should produce the felony by reason of some
cause or accident other than his own spontaneous
desistance.
Elements of an attempted felony:
1. The offender commences the commission of a
felony directly by overt acts;
2. He was not able to perform all the acts of execution;
and
3. He was not able to perform all the acts of execution
by reason of some cause or accident other than his
own spontaneous desistance.
In the first element, it is necessary that the attempted felony
charged is that which is directly connected to the overt act
although the offender may have a different crime in mind.
The second element requires that he be not able to
consummate the crime. What is the reason? The third
element. By reason of some cause or accident other than
this own spontaneous desistance. Because if the reason is
the offender’s spontaneous desistance, then he is not liable
of any crime. Desistance would only negate a person’s
criminal liability if the felony is in the attempted stage. The
moment the felony is already in the frustrated or
consummated stage, no amount of desistance would negate
the criminal liability.
Q: The neighbor of X arrived from the US. X was mad
that he was not given any token from the US. He said he
wanted to rob his neighbor of his dollars. He waited for
nighttime. At about 11:30 in the evening, he went near
the kitchen of the house and removed the jalousies
from the window. The opening is enough for him to
enter. He was about to do so when suddenly a tricycle
carrying 3 barangay tanods arrived. He was caught in
the act trying to enter the house. X was charged with
attempted robbery. Is the charge correct?
A: No. The overt acts of the offender in this case are directly
connected to entering, trespassing, not robbery. Based on
the first element, he cannot be charged with attempted
robbery although that was the crime he had in mind. His
over act is not directly connected with robbery. The correct
charge is attempted trespass.
In the cases of Lamahang and Baleros, the SC said that what
we actually have is an indeterminate offense. However,
indeterminate offenses have no juridical standpoint in
criminal law. Hence, the attempted felony that he is to be
punished must be that connected with his overt act. An
indeterminate offense is one wherein the intent of the
offender in relation to act that he performed is ambiguous.
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Prosecutor Victoria C. Garcia
Q: X was on his way home. By chance, he saw Y sitting in
front of a store. After Y attempted to molest X’s
daughter, Y had been in hiding. X went home, took the
gun he has been hiding, went to Y and pointed the gun
at him. With intent to kill, he fired the gun. The gun
jammed and the bullet did not come out. Y was able to
leave unhurt. What crime if any has been committed by
X?
A: X is liable of attempted homicide. His overt acts of
pointing the gun with intent to kill and pressing the trigger
are directly connected to killing. He was not able to perform
all acts of execution because of an accident, the bullet did
not come out of the gun.
Q: What if in the same problem, when X pointed the gun
at Y with intent to kill, he pulled the trigger and no
bullet came out. He pulled again a number of times but
still no bullet would come out. When X looked, there
was no bullet inside the gun. Is X liable of any crime?
A: X is liable for an impossible crime of homicide. A gun
without a bullet under any circumstances would not fire
and kill the intended victim. There is an inherent
impossibility.
Q: How is an impossible crime different from an
attempted felony?
A:
Attempted Felony Impossible Crime
The evil intent is possible The evil intent is not
of accomplishment possible of
accomplishment
The crime was not The crime was not
accomplished by reason of accomplished because of
some cause or accident its inherent impossibility
other than the offender’s
own spontaneous
desistance
B. Frustrated Stage
A felony is frustrated when the offender performs all the
acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by
reason of causes independent of the will of the perpetrator.
Elements of a frustrated felony:
1. The offender performs all the acts of execution
which would produce the felony; and
2. The felony was not produced by reason of
causes independent of the will of the
perpetrator.
Frustrated Felony Attempted Felony
The offender already The offender has not
performed all the acts of performed all the acts of
execution, he only

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execution which would commences the
produce the felony commission of the crime
The felony was not The felony was not
produced by reason of produced by reason of
causes independent of the some cause or accident
will of the perpetrator other than the offender’s
own spontaneous
desistance
The offender is already in The offender is only in the
the objective phase. No subjective phase. He still
more control over his acts has control over his actions
C. Consummated Stage
A felony is consummated when all the elements necessary
for its execution and accomplishment are present. The
moment all the elements of the felony under Book II are
present, it is already consummated. If any of the elements is
absent, it can either be attempted, frustrated or a different
felony.
Q: In the course of a fist fight, X pulled out a knife and
stabbed Y, intending to kill him. Y evaded the blow.
Again, X stabbed Y. Y evaded again.
A: X is liable of attempted homicide. The overt acts by X are
directly connected to killing. However, he was not able to
perform all acts of execution because of an accident, that is,
Y was good in evading the blow.
Q: In the same problem, X pulled out a knife and was
able to hit Y near the chest. Y was brought to the
hospital. The wound is only shallow. It would heal
within a week. What crime is committed by X?
A: X is liable for attempted homicide. His overt acts of
stabbing Y, inflicting a non-fatal wound are directly
connected to homicide. However, he was not able to
perform all acts of execution which would produce
homicide because the wound he inflicted was only shallow.
Not sufficient to bring about death. He must perform
another act to consummate the crime.
Q: What if in the same problem, X stabbed Y on the
abdomen, hitting a vital organ. Y was brought to the
hospital, the doctor said an operation must be done
immediately otherwise Y would die. After the
operation, Y survived. X is liable of?
A: Frustrated homicide. The moment X stabbed Y inflicting
a fatal wound, X has already performed all the acts of
execution. Nothing more to be done but wait for his death.
But death did not supervene because of a cause
independent of X’s will, the immediate medical
intervention.
In Labiaga and Angeles, the SC said in order to bring about
a frustrated felony in case of intentional killing, it is
necessary that the wound inflicted must be a fatal wound. It
is only upon inflicting such that it can be said that the first
Criminal Law Review
Prosecutor Victoria C. Garcia
element of a frustrated felony is present. If the wound
inflicted is a non-fatal wound, it will not bring about death.
Offender has not performed all acts of execution. He merely
commences the commission of the crime.
FELONIES WHICH DO NOT ADMIT OF FRUSTRATED
STAGE
1. Theft
2. Rape
There are certain felonies which do not admit of frustrated
stage. One of them is theft, as held by the SC in the case of
Valenzuela. There is no such crime as frustrated theft. SC
said based on the definition of theft under Art 308 in
relation to 309, it is committed when the offender takes the
personal property of another with intent to gain without the
consent of the owner without violence against or
intimidation of persons or use of force upon things.
Unlawful taking is the only act necessary to consummate
theft. Therefore, the moment unlawful taking is complete,
theft is already consummated. Unlawful taking is deemed
complete the moment the offender has possession of the
personal property of another, even if the offender has not
yet disposed of the property.
Q: X went to a department store. X took five swimming
trunks, it will be summer soon, he is preparing. He went
to the fitting room. A few minutes thereafter, he came
out and told the saleslady “It did not fit me.” He was
already walking away but the saleslady remembered
that this man took five swimming trunks but only
returned two. The saleslady called on the guard and
stopped X. It was discovered that X was wearing the
three other swimming trunks. X is liable for?
A: Consummated theft.
What if X said “No, it is only frustrated theft because I have
not left the department store because the guard already
stopped me!” The moment X took the swimming trunks and
wore the same, even if he has no opportunity to dispose it
by leaving the department store, it is already consummated
because unlawful taking is already complete.
Q: X was applying for a work and was being
interviewed. The phone of the manager rang, and she
excused herself and went outside to answer the call. X
took notice of the bag of the manager. He went to the
bag and took the wallet and placed it inside his coat. He
took his own bag and was about to leave when the door
opened, and the manager entered.
A: X is liable for theft. The moment he took the wallet and
placed it inside his coat, unlawful taking is complete.
Therefore, theft is consummated even if he has not left the
room to dispose of the thing.
Q: What if in the same problem, after X took the wallet
and went back to his seat, he had a change of mind. He
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went back to the bag and returned the wallet. All his
acts were shown in the CCTV footage. Can X be charged
of any crime?
A: X is liable for consummated theft. The moment he took
the wallet, unlawful taking is complete. The fact that he
returned the wallet cannot be considered as desistance that
would absolve him of criminal liability. Theft is already
consummated. The effect of such return would only
mitigate his liability under Art 13, because the SC
considered restitution as voluntary surrender. Analogous
to voluntary surrender. Also, no civil liability would be
adjudged against him.
Q: What if in the same problem, X went to the bag,
opened the zipper and was about to take the wallet
when suddenly the door opened. He went back to his
seat.
A: X is liable for attempted theft. X has no right to open the
zipper of the bag without the consent of the manager. When
he did so, even if he has not yet taken anything, it reveals his
intent. It is an overt act directly connected to theft; however,
theft was not consummated due to an accident which is that
the door opened, and the manager entered the room.
Another crime which does not admit of frustrated stage is
rape.
Criminal Law Review
Prosecutor Victoria C. Garcia
the crime committed is attempted rape. Based on the
testimony of the girl, the penis of Pareja only touched the
outer surface of her genitalia. There was not even the
slightest penetration. It was attempted rape and not acts of
lasciviousness because if you would look at the facts, there
was intent to have carnal knowledge with the victim.
In Cruz v. People, the victim AAA was awakened when the
master was already on top of her. She realized that she was
totally naked. She struggled and was able to leave. The case
filed was attempted rape. SC said it is only acts of
lasciviousness. The act of a man climbing on top of a naked
woman, absent any evidence of his erected penis capable of
penetration, means he has no intent to lie or have carnal
knowledge. Only acts of lasciviousness.
MATERIAL AND FORMAL CRIMES
If a crime admits of the stages of consummated, frustrated
or attempted, or even consummated and attempted only,
these are Material Crimes. But if the crimes do not admit
of the stages, it is considered Formal Crimes.
Formal crimes are punished only in the consummated
stage. These are crimes based on result. Hence, they have no
attempted and frustrated stage. Example: light, less serious
and serious physical injuries, false testimony.

Q: After Y’s direct testimony, here comes X’s defense

counsel cross examining Y. The counsel was able to ARTICLE 7 – WHEN LIGHT FELONIES ARE
make Y admit that Y was not sure if there was a full
PUNISHABLE
penetration. Because of this, together with the medical
certificate that shows there is no hymenal laceration,
the judge convicted X of frustrated rape. Is the judge Art. 7. When light felonies are punishable. - Light felonies are
correct? punishable only when they have been consummated, with
A: The judge is wrong. It is settled in People v. Pareja that the exception of those committed against person or
there is no such crime as frustrated rape. The slightest property.
penile penetration of a woman’s genitalia already
consummates the crime of rape. In order to consummate
rape, it is necessary that there is penetration. However, the
penetration required is not complete. The slightest
penetration consummates rape. There is penetration the
moment the penis touched the lips or labia of the pudendum
of a woman’s genital. So there is no frustrated rape.

Q: When will attempted rape arise?

A: In People v. Pareja, the SC distinguished attempted rape
from acts of lasciviousness. If based on the facts and
circumstances, there was intent to lie or have carnal
knowledge with the victim, it is attempted rape. But if there
was no such intent, it is only acts of lasciviousness.

In that case, the girl was sleeping, the accused entered the
room and undressed the girl and himself and went on top of
the girl. He touched the private parts of the girl and tried to
insert his penis but she began crying loudly. So the accused
covered themselves with blanket, but the girl still cried
loudly. Because of this, Pareja cannot do anything. He was
charged with rape. When the case reached the SC, SC said
20
4A Study Circle Criminal Law Review
A.Y. 2020 – 2021 Prosecutor Victoria C. Garcia
Q: A,B,C,D, and E decided to kill W, their landlord. While
they were eating in a restaurant, they decided on how
MARCH 10, 2021 to kill W. Everything was decided, but unknown to
them, they were heard by the waiter. The waiter
ARTICLE 8 – CONSPIRACY informed the police. After A,B,C,D, and E have come up
with the agreement, the police arrived and they were
arrested. They were charged with conspiracy to commit
Art. 8. Conspiracy and proposal to commit felony. -
murder. Will the case prosper?
Conspiracy and proposal to commit felony are
A: NO, it will not prosper because conspiracy to commit
punishable only in the cases in which the law specially
murder is not a crime by itself. It is only a preparatory act.
provides a penalty therefor.
It is only a means of committing a crime. Therefore, it is not
yet punishable.
A conspiracy exists when two or more persons come to
an agreement concerning the commission of a felony and
Q: What are the 2 kinds of conspiracy as a means to
decide to commit it.
commit the crime?
A:
There is proposal when the person who has decided to
1. Direct or Express conspiracy - when the
commit a felony proposes its execution to some other
conspirators met, planned and agreed to commit a
person or persons.
crime. It is a conspiracy based on a preconceived
plan.
General rule: As a rule, conspiracy and proposal to commit
a felony are not punishable acts. They are mere preparatory
Since there was planning, all perpetrators who
acts. In Article 6, to commit a crime, there must at least be
would be present at the scene of the crime could be
the commencement of an overt act to amount at least an
held criminally liable as conspirators for the said
attempted felony. Here, there is no overt act yet. There is
crime agreed upon. Even if he did not actively
only a conspiracy, a proposal.
participate in the commission of the crime. Since he
was part of the agreement or preconceived plan,
Exception: When the law specially provides a penalty for
his mere presence at the scene of the crime, his
merely conspiring or proposing to commit a felony, they
mere exercise of moral ascendancy at the scene of
become crimes by themselves.
the crime will make him a conspirator. Therefore,
in case of direct or express conspiracy, the offender
Q: What are the 2 concepts of conspiracy?
can be held criminally liable either by direct or
A:
indirect participation in the commission of the
1. Conspiracy as a crime by itself – when the law
crime because he was part of the agreement.
provides a penalty for merely conspiring.
But, although he was a part of the agreement, if he
2. Conspiracy only as a means of committing the
failed to appear at the scene of the crime, he cannot
crime – when the law does not provide a penalty
be held criminally liable EXCEPT when he is the
for merely conspiring. Conspiracy is only used as a
principal by induction or inducement. Reason is,
means in order to consummate the crime.
although he was part of the agreement, he did not
appear at the scene of the crime. Therefore, he
Q: A new law is about to be promulgated and A, B, C, D,
desisted in the actual execution of the crime. Hence,
and E wanted to prevent the promulgation of the new
he cannot be held criminally liable as a conspirator.
law so they planned a public uprising together with
other people to be carried outside (inaudible). They
2. Implied or inferred conspiracy – A conspiracy
planned this and decided to commit it on a particular
deduced from the mode and manner of committing
date and time. They would be using unlawful means,
the crime. The conspirators acted simultaneously
that was their agreement. The agreement came to the
in a synchronized and coordinated manner
knowledge of the authorities and so the authorities
towards a common criminal objective/design.
arrived at the place of the agreement and arrested
A,B,C,D, and E. Can they be charged in court for
The conspirators did not meet nor plan. The
conspiracy?
conspirators did not agree. There was no
A: YES, they can be charged with conspiracy to commit
preconceived plan. The said conspiracy happened
sedition. Conspiracy to commit sedition is a crime by itself
impliedly, at the spur of the moment, based on the
because the law provides a penalty for conspiracy to
turn of events, based on particular acts they
commit sedition.
performed.

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It is one deduced from the mode and manner of
committing the crime. Mere presence at the scene
of the crime, mere acquiescence or approval to the
commission of the crime will not make one a
conspirator absent an active participation in the
commission of the crime.
The moment conspiracy is established, whether it is
direct/express conspiracy or implied/inferred conspiracy,
the act of one is the act of all. It simply means that the
moment conspiracy is established, all perpetrators are
punished to the same extent, regardless of the quantity and
quality of their participation in the commission of the crime.
Therefore, you do not ask who inflicted the fatal blow or the
mortal attack, or who performed a minor act. That is
irrelevant.
In the cases of People vs. Carandang and People vs. Evasco,
the SC appreciated the presence of conspiracy and
convicted all the conspirators based on the principle that
the act of one is the act of all.
However, the moment conspiracy is not established, each
perpetrator are punished only to the extent of their
participation on the commission of the crime as held in the
case of People vs. Bokingco, People vs. Castillo, GMA vs People.
In these cases,the offenders are punished to the extent only
of their participation because conspiracy was not proven.
People vs. Bokingco
CRIME CHARGED: Murder
RTC: Murder
CA: Affirmed the ruling of the RTC
SC: Bokingco – Homicide; Col – Acquitted
Only Bokingco was held liable for the crime of homicide.
Reynante Col has nothing to do with the killing. He was
staging a robbery while Bokingco was killing the husband.
Therefore, the SC said that there was no conspiracy. There
was no similar criminal intent. Therefore, they have
different criminal liabilities.
Q: What are the 2 kinds of multiple conspiracy?
A:
1. Wheel or circle conspiracy - When a person or
group of persons known as a hub, deals
individually with another person or group of
persons known as the spokes.
It is present in Fernan vs. People. In GMA vs. People,
it is not present.
Criminal Law Review
Prosecutor Victoria C. Garcia
2. Chain conspiracy – a conspiracy generally present
in regular business transactions that applies also in
case of transactions involving contrabands. Here,
there is that continuous communication and
transaction between the manufacturer and the
wholesaler, the wholesaler and the retailer, and the
retailer and the consumer.
For example, A and his cohorts manufacture shabu.
B and his cohorts would buy it in wholesale. C and
his cohorts would buy it from B and would repack
it to sell it for retail to the consumers. There was
this consistent and continuous action between the
manufacturer and the wholesaler, the wholesaler
and the retailer, and the retailer and the consumer.
Q: Can there be conspiracy in case of violation of a
special penal law?
A: YES.
People v. Morilla
Morilla and Mayor Mitra were both charged as conspirators
for transporting dangerous drugs in violation of Section 5 of
RA 9165. It is a special penal law.
CRIME CHARGED: Illegal transport of methamphetamine
hydrochloride, commonly known as shabu
RTC: Guilty of the crime of illegal transport of
methamphetamine hydrochloride, commonly known as
shabu
CA: Affirmed the ruling of the trial court.
SC: Conspiracy can be applied in this case because there is
an express provision under Section 26 of RA 9165 which
provides that they can be punished for conspiracy. Under
section 26 of RA 9165, the law expressly provides that there
is the attempted stage as well as the conspiracy in case of
violation of Section 5 (transporting dangerous drugs).
Therefore, since it is the SPL itself that provides for the said
conspiracy, it can be considered against the accused.
Section 26. Attempt or Conspiracy. – Any attempt or
conspiracy to commit the following unlawful acts shall be
penalized by the same penalty prescribed for the
commission of the same as provided under this Act:
(a) Importation of any dangerous drug and/or
controlled precursor and essential chemical;
(b) Sale, trading, administration, dispensation,
delivery, distribution and transportation of any
dangerous drug and/or controlled precursor
and essential chemical;
(c) Maintenance of a den, dive or resort where any
dangerous drug is used in any form;
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(d) Manufacture of any dangerous drug and/or
controlled precursor and essential chemical;
and
(e) Cultivation or culture of plants which are
sources of dangerous drugs.
Go Tan vs. Tan
The parents-in-law would not give support to the woman,
they would not allow her to work, they would not give her
money. Thus, a case was filed against both the husband and
his parents.
SC: The SC said that, applying Article 10 of the RPC, the
husband can be charged together with his parents for
violation of RA9262. There is nothing in RA 9262 which
provides that the RPC cannot apply. In fact, under RA 9262,
it is provided that the RPC applies suppletorily.
ARTICLE 9 – GRAVE FELONIES, LESS GRAVE
FELONIES AND LIGHT FELONIES
Art. 9. Grave felonies, less grave felonies and light felonies. -
Grave felonies are those to which the law attaches the
capital punishment or penalties which in any of their
periods are afflictive, in accordance with Art. 25 of this
Code.
Less grave felonies are those which the law punishes with
penalties which in their maximum period are correctional,
in accordance with the above-mentioned Art..
Light felonies are those infractions of law for the
commission of which a penalty of arrest menor or a fine not
exceeding 200 pesos or both; is provided.
ARTICLE 10 – OFFENSES NOT SUBJECT TO THE
PROVISIONS OF THIS CODE
Art. 10. Offenses not subject to the provisions of this Code. -
Offenses which are or in the future may be punishable
under special laws are not subject to the provisions of this
Code. This Code shall be supplementary to such laws, unless
the latter should specially provide the contrary.
ARTICLE 11 – JUSTIFYING CIRCUMSTANCES
Q: What are the circumstances that affect the criminal
liability of an offender?
A:
1. Justifying circumstances
Criminal Law Review
Prosecutor Victoria C. Garcia
2. Exempting circumstances
3. Mitigating circumstances
4. Aggravating circumstances
Q: What are justifying circumstances?
A: Those circumstances, which, if present or attendant in
the commission of a felony, the offender is said to have
acted within the bounds of the law. The offender is said to
not have transgressed the law. Therefore, there is no crime
committed. There is no criminal liability, and as a rule, there
is also no civil liability because there is no crime committed.
If an offender is charged in court and he raised as a defense
any of the justifying circumstances under Article 11, that
offender/accused is in effect admitting the acts or
omissions alleged in the information. However, he is
avoiding criminal responsibility by saying that his act is
justified. Therefore, the moment the defense raised a
justifying circumstance, the trial will be inverted.
It is always the prosecution who has the burden of proof to
prove the guilt of the accused beyond reasonable doubt.
However, the moment the accused says that his defense is
any of those enumerated under Article 11, the law prima
facie presumes that he already is liable. Therefore, the
burden of evidence is shifted on him to contradict the said
presumption made by law. The burden of evidence is on him
to prove the elements of the justifying circumstance that he
is raising.
If he failed to prove the elements of the justifying
circumstance that he is raising, definitely it is a conviction
because in saying that his act is justified, the law presumes
he already admitted the commission of the crime.
I. SELF DEFENSE
1. Anyone who acts in defense of his person or rights,
provided that the following circumstances concur;
First. Unlawful aggression.
Second. Reasonable necessity of the means
employed to prevent or repel it.
Third. Lack of sufficient provocation on the part
of the person defending himself.
Self defense includes defense of one’s life and limb, defense
of one’s honor and chastity, defense of one’s property
coupled by an attack on the person trusted with the said
property.
ELEMENTS OF SELF-DEFENSE
1. UNLAWFUL AGGRESSION
In the cases assigned, the Supreme Court has repeatedly
stated that in case of self defense, the primordial element is
unlawful aggression. Without unlawful aggression, there is
no self-defense. Without unlawful aggression coming from
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the victim, there is no reason for the accused to defend
himself. Hence, it is necessary first and foremost that there
is unlawful aggression.
The unlawful aggression must come from the victim
himself, not from any other person.
Q: What are the elements of unlawful aggression?
A:
1. There must be a physical or material attack or
assault;
2. The attack or assault must be actual or at least
imminent.
3. The attack or assault must be unlawful.
Q: What are the two kinds of unlawful aggression?
A:
1. Physical/Material unlawful aggression - the attack
is by means of physical force or by means of a
weapon;
2. Imminent unlawful aggression - the attack is
impending or at the point of happening.
If there is an unlawful aggression coming from the victim,
the said person defending himself must use a means
reasonable in order to repel the said unlawful aggression
coming from the victim.
2. REASONABLE NECESSITY OF THE MEANS
EMPLOYED TO PREVENT OR REPEL THE
UNLAWFUL AGGRESSION
Q: What does “reasonable necessity of the means
employed to prevent or repel it” mean?
A: The said act done by the person defending himself must
be reasonable or rational in order to prevent the said
unlawful aggression.
Q: What are the factors to be considered to determine
whether the means employed is rationally necessary?
A:
1. Nature and the number of the weapons used by the
unlawful aggressor as against that of the person
defending himself.
2. Personal circumstances of the unlawful aggressor
versus that of the person defending himself.
3. Place and location of the assault.
3. LACK OF SUFFICIENT PROVOCATION ON THE
PART OF THE PERSON DEFENDING HIMSELF
Q: What is provocation?
A: refers to any improper or unjust act which is capable of
inciting or exciting a person to commit an unlawful act.
Q: When is it considered sufficient provocation?
A: when it is adequate to stir a person to commit a wrongful
act and when it is proportionate to the gravity of the act.
Criminal Law Review
Prosecutor Victoria C. Garcia
What the law requires based on the 3 rd element of self
defense, is that there must be no sufficient provocation
coming from the accused. There may be provocation. It is
allowed. What is not allowed is sufficient provocation
coming from the said accused.
Q: What is the maxim behind self-defense?
A: Stand ground when in the right. It means that when the
accused is where he should be, the law does not require him
to retreat when he saw his assailant fast approaching him.
Otherwise, he runs the risk of being stabbed at the back.
Q: While X was walking towards his home, when he was
on that portion of the street wherein it was unlighted
(the electric post has no light, it was a dark area),
suddenly, A,B, C,D, and E encircled X. They told X “give
us your bag!”. X didn’t want to give the bag so A,B,C,D,
and E, all of them simultaneously ganged up on X. He
was boxed and kicked until he was down on the ground.
He was wounded, he was in pain. 5 men attacking him
using their force, fists, and legs.
While he was down, he was still holding his bag tightly.
Suddenly, the leader of the group, A, went on top of X.
Thereafter, he boxed X twice on the face. Another
member of the group, B, gave A, a fan knife. He raised
the knife as if to stab X, however, X was able to get a
piece of stone and repeatedly hit the head of A. A fell on
the ground. B,C,D, and E left. X brought A to the hospital.
A survived because of the immediate medical
intervention.
X is now being prosecuted for frustrated homicide. X’s
defense was that he was merely acting in self defense.
Will self defense lie in his favor?
A: YES. The first element is present because there was
unlawful aggression. The act of A,B,C,D, and E ganging up on
the said single and unarmed victim placed his life and limb
in actual and imminent danger. Not satisfied, when he was
down and wounded, A had his fan knife and he was about to
stab X. The said act of A placed the life and limb of X in actual
and imminent danger.
The second element is also present. X was unarmed. The
only way he could defend himself, he was able to pick up a
piece of stone and hit A. The means he used was reasonable.
Otherwise, he would die.
The third element is also present. There was no sufficient
provocation. He was on his way home.
All the elements are present. Therefore, X has to be
acquitted of the crime charged because he merely acted in
self-defense.
BAR QUESTION: TRUE OR FALSE: Self defense applies
only in case of consummated felony.
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A: FALSE. Self-defense would apply the moment there is
any unlawful aggression done by the victim on the part of
the person (inaudible). The moment the life and limb of the
said accused was placed in actual or imminent danger,
whether it is consummated or not, he has to act based on
the impulse of self-preservation. Therefore, self-defense
does not only lie in case of consummated felony. It applies
even in case of attempted and frustrated for as long as the
life and limb of the person defending himself was placed in
actual and imminent danger.
Q: Same problem. X was on his way home. When he was
on this dark portion of the street, suddenly, there
appeared Y. Y, armed with a knife, told X “I need your
bag! If you will not give me your bag, I’m going stab
you!!”. X, pretending to give the bag, stretched his hand
and that particular moment he tried to grab the knife of
Y. There was a struggle for the possession of the knife
between X and Y. X was able to gain possession of the
knife and X repeatedly stabbed Y until Y died.
X is prosecuted for the crime of homicide. X said he is
not liable because he merely acted in self-defense. Will
self-defense lie in his favor?
A: First, there was unlawful aggression on the part of Y. Y
told X at the beginning “Give me your bag. Otherwise, I’m
going to stab you!”. This placed the life and limb of the X in
actual and imminent danger. However, the moment X and Y
struggled for the possession of the said knife, and X gained
possession of the knife, whatever inceptive unlawful
aggression that had been commenced by Y has already
ceased to exist. Now that X was in possession of the knife, Y
can no longer mount any attack. Therefore, X should have
left. Instead, X repeatedly stabbed Y. In doing so, since there
was no unlawful aggression as it had already ceased to exist,
X has no right to wound nor kill Y. When he did so, it cannot
be said that the means he employed was reasonable.
Therefore, his act was a mere act of retaliation, as held by
the SC in the case of Dela Cruz vs. People.
Dela Cruz vs. People
CRIME CHARGED: Homicide
RTC: Homicide
CA: Affirmed the RTC.
SC: Even assuming that the aggression with use of the gun
initially came from the victim, the fact remains that it ceased
when the gun was wrested away by the accused from the
victim. It is settled that when unlawful aggression ceases,
the defender no longer has any right to kill or wound the
former aggressor, otherwise, retaliation and not self-
defense is committed. A person making a defense has no
more right to attack an aggressor when the unlawful
aggression has ceased.
Criminal Law Review
Prosecutor Victoria C. Garcia
People vs. Olarbe
One of the rare cases where the SC upheld the presence of
self defense and acquitted the accused. The said victim,
drunk, barged inside the house of the accused and his wife.
Armed with a gun, he wanted to shoot the accused. They
struggled for the possession of the gun. The accused gained
possession of the gun and he shot the said aggressor. The
aggressor was hit on the head. However, instead of falling
on the ground, he pulled out his bolo and tried to hack the
accused and his common law spouse. Again, there was a
struggle for the possession of the bolo and Olarbe gained
possession of the bolo and hacked the said unlawful
aggressor.
CRIME CHARGED: Murder
RTC: Murder
CA: Affirmed the RTC
SC: Olarbe was acquitted. It was an act of self defense. Based
on the medical certificate, the cause of death was stab
wound and a gunshot wound. However, the SC said after the
said victim was shot, he did not fall on the ground but
instead pulled out a bolo and tried to hack Olarbe and the
common law spouse. The SC said the unlawful aggression
persisted and did not cease. Therefore, it was rightful on the
part of Olarbe to defend himself and his common law
spouse. Otherwise, they would be the one killed. Since the
unlawful aggression started by the victim did not cease but
persisted and continued, based on the impulse of self-
preservation, Olarbe acted in self-defense and defense of a
stranger.
Q: X would like to attend the 7:30AM Sunday mass. X
went inside the church together with her sister at 7AM.
About 7:15, Y, a suitor of X came. Y saw that the left
portion of the bench wherein X and her sister were
seated was still vacant. So Y seated next to X. X looked
at Y and moved further away from Y. Thereafter, X kept
talking to her sister. While X was talking to her sister, Y
placed his right hand on the lap/legs of X, who at the
time, was wearing a short skirt. X got mad and opened
her bag, took a small knife, and stabbed Y. Y was hit on
the chest and died. X is now prosecuted for the crime of
homicide but X said she merely acted in self-defense, in
particular in defense of her honor and chastity. Will the
defense lie in her favor?
A: NO. First, there was no unlawful aggression. The act of Y
of placing his right hand on the lap/legs of X did not place
the life/limb or the honor/chastity of X in actual and
imminent danger. It is impossible for Y to rape X inside the
church, fully lighted, with all the people around. The mere
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act of placing a hand on her legs cannot be considered as
unlawful aggression which placed her life and limb, her
honor or chastity, in imminent danger. Since the element of
unlawful aggression is absent, there is no self defense.
Q: A woman went to the public market at 5AM. At about
5:30AM, she was on her way home. A few meters away
from her house, Y, a man, suddenly appeared, covered
her mouth, and boxed her stomach twice. Y carried her
behind a tree and repeatedly boxed her. Y forcibly
undressed her and undressed himself. The woman was
able to get her basket, pulled a knife, so the moment the
man was able to place himself on top of the woman, the
woman stabbed the man and died. The woman was
charged with homicide. The woman said that she
merely acted in defense of her honor and chastity. Will
her defense lie in her favor?
A: YES. First, there was unlawful aggression. The act of the
man covering her mouth, boxing her, dragging her behind a
tree, forcibly undressing her, these are acts which placed
her honor and chastity in actual and imminent danger.
Second, the means used by the woman to defend herself
were reasonable/rational. We take into consideration 3
factors:
1. the nature and number of weapons used by the
unlawful aggressor. The said man, based on the
facts, was not armed. However, the said man has
his fists to box the woman and has his force to
undress the woman;
2. the personal circumstances. Based on the facts, the
man was greater in strength than that of the
woman; and
3. the place and location of the assault. 5:30AM, the
woman was alone and dragged behind a tree, no
one could help her but herself. At that moment, the
only means that she could use was her knife inside
her basket.
Third, there was no sufficient provocation coming from the
woman.
Thus, the woman must be acquitted of the crime charged.
Toledo vs. People
The accused raised the defense of accident before the lower
court. However, on appeal before the SC, he changed his line
of defense, and said he acted in self-defense.
CRIME CHARGED: Homicide
RTC: Homicide (with mitigating circumstance of voluntary
surrender)
CA: Affirmed the RTC.
Criminal Law Review
Prosecutor Victoria C. Garcia
SC: Accused was convicted of Homicide. There is no such
thing as accidental self-defense. The accused cannot raise
both accident and self-defense at the same time. They are
inconsistent with each other. When you say accident, it
means it happened outside of the sway of things. There was
no deliberate intent on the part of the accused. In case of
self defense, the accused deliberately or intentionally
wounded or killed the victim based on the impulse of self-
preservation. Self-defense is a positive and overt act done
by the accused based on the impulse of self-preservation.
Hence, the two are inconsistent with each other and cannot
be raised at the same time.
II. DEFENSE OF A RELATIVE
2. Anyone who acts in defense of the person or rights of
his spouse, ascendants, descendants, or legitimate,
natural or adopted brothers or sisters, or his relatives by
affinity in the same degrees and those consanguinity
within the fourth civil degree, provided that the first and
second requisites prescribed in the next preceding
circumstance are present, and the further requisite, in
case the revocation was given by the person attacked,
that the one making defense had no part therein
Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to
prevent or repel it;
In case the provocation was given by the person
attacked, the one making the defense had no part
therein.
Even if the relative, who was defended by the offender, was
the one provoked the offended party, as long as the relative
making the defense is not a party to the provocation, there’s
still could be a valid and legitimate defense of a relative.
It is necessary however, for defense of relative to lie, that
those relatives mentioned must be the one being defended.
• Spouse
• Ascendants
• Descendants
• or legitimate, natural or adopted brothers or
sisters
• or his relatives by affinity in the same degrees and
• those consanguinity within the fourth civil degree
III. DEFENSE OF A STRANGER
3. Anyone who acts in defense of the person or rights of
a stranger, provided that the first and second requisites
mentioned in the first circumstance of this Article are
present and that the person defending be not induced by
revenge, resentment, or other evil motive.
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Elements:
1. Unlawful aggression;
2. Reasonable necessity of the means employed to
prevent or repel the unlawful aggression;
3. The person defending is not induced by revenge,
resentment, or other evil motive.
It is necessary under the third element that the only
objective of the accused is to defend a stranger. There was
a noble, a disinterested motive intent to help. He must not
be guided by any evil intent in helping the said stranger.
Q: X was on his way home when he heard a commotion
on the other end of the street. He saw his father-in-law
arguing with A and B. He ignored it and continued
walking when he suddenly heard a loud cry and so he
looked back and he saw that A boxed his father-in-law’s
face twice. X saw that A was opening a fan knife. When
A was about to stab his father-in-law, X ran towards the
scene, picked up a piece of wood, and hit the back of the
head of A to prevent A from stabbing his father-in-law.
A suffered a head injury and the doctor said he would
need medical intervention for 35 days. X was charged
with serious physical injuries. X argued that he was
merely acting in defense of a relative. Will his defense
lie in his favor?
A: YES. First, there was unlawful aggression. A was about to
stab his father-in-law. Second, there was reasonable
necessity of the means employed to prevent or repel the
unlawful aggression. He was unarmed, he saw a piece of
wood, picked it up and hit the back of A’s head. The only
means he knew to prevent A from stabbing his father-in-
law. Third, granting for the sake of argument that it was the
father-in-law who provoked A, X was not a party to the said
provocation.
Q: Is the father-in-law within the meaning of a “relative”
being defended for the defense of a relative to lie in
favor of X?
A: YES. The father-in-law was a relative by affinity of X. In
case of relative by affinity, he must be of the same degree as
ascendants, descendants, legitimate, natural, or adopted
brothers or sisters. The father-in-law is within the same
degree of affinity as an ascendant. Thus, defense of a
relative would lie in favor of X.
Q: What if instead of the father-in-law, it was the cousin
of the wife? Will the defense of a relative lie in his favor?
A: NO. The cousin is not among those enumerated as a
relative in case of Article 11, par.2. The said cousin was a
relative by affinity of X because he was the cousin of the
wife. He is outside the same degree as ascendants,
descendants, legitimate, natural, or adopted brothers or
sisters. Therefore, defense of a relative would not lie.
It would be defense of a stranger. First, there was unlawful
aggression. Second, there was reasonable necessity of the
means employed to prevent or repel the unlawful
Criminal Law Review
Prosecutor Victoria C. Garcia
aggression. Third, based on the problem, there was no
showing that X was induced by any other motive other than
to help the cousin of his wife. Therefore, defense of a
stranger would lie.
Q: What if it was not the cousin of the wife, but X’s own
cousin? Will the defense of a relative lie?
A: YES, when it is relative by consanguinity, it is up to 4 th
civil degree.
IV. STATE OF NECESSITY
4. Any person who, in order to avoid an evil or injury,
does not act which causes damage to another, provided
that the following requisites are present;
(1) That the evil sought to be avoided actually
exists;
(2) That the injury feared be greater than that done
to avoid it;
(3) That there be no other practical and less harmful
means of preventing it.
For as long as the mentioned requisites are present, he
would be absolved of criminal liability BUT NOT OF CIVIL
LIABILITY.
The 4th justifying circumstance is an exception to the rule
that in case of justifying circumstances, there is no criminal
and civil liability. Under the 4th justifying circumstance, in
case of state of necessity, there is no criminal liability, but
there is civil liability.
Q: Who shall bear the civil liability?
A: Under Art. 101 of the RPC, the civil liability in case of state
of necessity shall be adjudged against the accused and all
other persons who have been benefited by the said state of
necessity. If there are many persons who have been
benefited by the said state of necessity, Art 101 states that
the court shall divide the civil liability proportionately.
Q: X was driving his car at 2AM on his way home. He was
driving carefully following the LTO rules and
regulations. There were a few cars as it was in the wee
hours of the morning. When he was passing this very
dark portion of the highway wherein lights were off,
suddenly, there was a big truck in front of him. The
truck has no early warning device to signal that there it
was being repaired. If X would go on, his car would
collide with the truck. If X would go to the left, he would
be hitting the island in the said highway. It might cause
his car to turn upside down (he might also die.) If he
would turn to the right, he would be hitting a beggar
sleeping on the bench. He turned to the right and hit the
bench and the beggar. He brought the man to the
hospital and he was later charged with reckless
imprudence resulting in serious physical injuries. X
argued that he acted in a state of necessity. Are all the
elements present?
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A: YES. First, that the evil sought to be avoided actually
exists. The evil that he sought to avoid was the collision of
the car with the big truck.
Second, that the injury feared be greater than that done to
avoid it. The injury he feared was if his car would collide
with that of the truck, he might die. The injury he feared was
his death. The said death would be more valuable to him
than any other thing.
Lastly, that there be no other practical and less harmful
means of preventing it. There was the truck already. There
was not even a sign that there was a truck. If X would go on,
his car would collide with the truck. If X would go to the left,
he would be hitting the island in the said highway. It might
cause his car to turn upside down (he might also die.) The
only way was to hit the said bench wherein a person was
sleeping. That was the best practical thing for him to do at
that moment wherein he was in a state of emergency.
Therefore, the defense would lie in his favor.
For state of necessity, it is necessary that the accused was
not the author of the said state of necessity. If he himself
authored or he was the one who placed himself in the said
situation, he cannot use this defense in his favor.
Q: The passengers said they were going to Pasig. There
was heavy traffic along EDSA, so the taxi driver went
through the streets of Mandaluyong, San Juan, Ortigas.
When he was on the streets of Mandaluyong, he
remembered a shortcut. He went on the said street and
he saw a sign board “Deep excavation at the end. Do not
enter.” The taxi driver did not mind it and he entered
the street at full speed and suddenly he found himself
in a state necessity. There was deep excavation. If he
would go on, his taxi would fall. He and the passengers
would die. If he would turn to the right, he would be
hitting the construction workers who were eating their
meryenda. He turned to the right and hit the
construction workers. 5 of the workers suffered
injuries. The taxi driver was being prosecuted for
reckless imprudence resulting in serious physical
injuries. His defense was state of necessity. Will his
defense lie?
A: NO. Based on the third element that there be no other
practical and less harmful means of preventing it. Had he
considered the sign board “Deep excavation at the end. Do
not enter”, the said incident would not have happened. He
was the one who placed himself in that situation. Thus, he
cannot invoke state of necessity to free himself from
criminal liability.
V. PERFORMANCE OF A DUTY
5. Any person who acts in the fulfillment of a duty or in
the lawful exercise of a right or office.
Criminal Law Review
Prosecutor Victoria C. Garcia
Elements:
1. Offender acted in the due performance of a duty or
in the lawful exercise of a right or office.
2. The resulting felony is an unavoidable
consequence of the due performance of his duty or
the lawful exercise of such right or office.
It is necessary that the said offender was performing his
duty, exercising his right, fulfilling his duty.
Q: Does it mean that it can only apply to a public officer?
A: NO, even private individuals are included. This does not
apply exclusively to public officers and employees.
For example, X, a private individual, saw a person in danger.
It is his duty to help that person. Otherwise, he can be
charged with abandonment of persons in danger.
Because of the offender’s due performance of his duty,
lawful exercise of a right, he caused an injury, a felony
resulted. If the said injury is the unavoidable consequence
of the due performance of his duty, then the said justifying
circumstance would lie in favor of the offender.
VI. OBEDIENCE TO AN ORDER
6. Any person who acts in obedience to an order issued
by a superior for some lawful purpose.
Elements:
1. An order has been issued by a superior
2. Such order must be for some lawful purpose
3. Means used by the subordinate to carry out said
order is lawful
It is necessary that the offender has a superior, and the
superior issued an order, and the said order was for some
lawful purpose and the means used by the subordinate to
carry out the order must also be lawful.
Q: X was convicted of murder and a warrant of arrest
was issued against him. The chief of police called on
police officer W and 2 other police officers and told
them about X. The chief ordered W and the 2 other
officers to look for X and to bring him to the police
station so that he can be brought to the penal institution
for service of sentence. They looked for X and got a call
from an informant that X could be found in a far-flung
area in Tarlac.
W and the 2 police officers went to Tarlac and located
X. They saw a nipa hut in the middle of a vast field.
According to the people around, X was inside that nipa
hut. W and the 2 police officers knocked on the door and
when X saw them, he closed the door, jumped outside
the window of the nipa hut and ran away. W and the 2
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police officers fired several shots in the air (warning
shots) shouting at X to stop. X stopped, however, X
spinned a knife to police officer W. Because of the
distance, W was not hit. X again ran. They chased him
until W fired 5 shots on the head of X. X died. Police
officer W is being prosecuted for the crime of homicide.
If you are his defense counsel, what defenses would you
raise in his favor? Will the justifying circumstance of
fulfillment of duty lie in his favor?
A: NO. Although the act of the police officer in serving the
warrant of arrest and trying to arrest X would be considered
as due performance of his duty, the act of the police officer
in firing at X at the head 5 times was an over performance
of his duty. The said killing was not the unavoidable
consequence of the due performance of his duty. Therefore,
the justifying circumstance of fulfillment of duty would not
lie.
Q: Will the justifying circumstance of obedience to a
lawful order lie in his favor?
A: NO. The order issued by the chief of police was lawful.
However, the means used by police officer W was not
lawful. There was an exaggeration on the performance of
the said order. He should not have shot X 5 times on the
head. A single shot perhaps on the legs or the feet to prevent
him from running would suffice but firing shots at him 5
times would be an over performance of the said order.
Therefore, the justifying circumstance of obedience to a
lawful order would not lie.
HOWEVER, THEY CAN BE CONSIDERED AS MITIGATING
CIRCUMSTANCES. Although not all the elements of the
justifying circumstance of fulfillment of duty is present,
since there are only 2 elements, and 1 element is present
(the presence of 1 is already a majority), it is considered as
incomplete fulfillment of a duty which is considered as a
privileged mitigating circumstance.
Insofar as obedience to a lawful order, there are 3 elements.
The 3rd element is absent. There is no justifying
circumstance of obedience to a lawful order but there is a
mitigating circumstance of incomplete obedience to a
lawful order, because majority of its elements are present.
It is considered a privileged mitigating circumstance.
Q: X was convicted and he is now being brought to
Muntinglupa. He was on board a BJMP vehicle and was
being guarded by 2 police officers. Suddenly X said that
he must answer the call of nature. The driver stopped;
police officer Y brought X behind the tree. Nakaposas si
X patalikod. X told police officer Y “how can I urinate
when my hands are tied?”. Police officer Y unlocked the
handcuffs, X pushed Y and ran. Police officer Y called
police officer Z and they chased X and saw that he
entered a house. They asked X to get out of the house. X
got out of the house but he was holding a 4 year old boy
as a hostage. He was pointing a knife at the boy. X said
that if Y and Z arrests him, he will kill the boy. The child
Criminal Law Review
Prosecutor Victoria C. Garcia
would not stop crying. X got mad and was about to stab
the boy when police officer Y fired at him at the head.
The child was saved but X died. Police officer Y is being
prosecuted for the crime of homicide. May he raise
defense of a stranger?
A: YES. First, there was unlawful aggression. X was about to
stab the child. Second, the means used by Y was reasonable.
He cannot shoot X on the body because X was holding the
child. If he targeted the body, the child might be hit. The only
way was to hit X’s head. Lastly, there was no evil intent on
the part of Y. He was ignited solely by a noble and
disinterested motive of helping the child. Therefore,
defense of a stranger would lie in favor of police officer Y.
Q: May he raise defense of fulfillment of a duty?
A: YES. It is his duty to save the life of the boy. It is his duty
to bring this accused to the penal institution. Therefore, he
was acting in the performance of his duty. Shooting X was
the unavoidable consequence of the due performance of his
duty because had he not shot/killed X, the child would be
the one who is killed. Therefore, he can also raise the
justifying circumstance of fulfillment of a duty.
BATTERED WOMAN SYNDROME
It is another justifying circumstance, but it is found under
RA 9262.
Battered Woman Syndrome refers to a scientifically
defined pattern of psychological and behavioral symptoms
found in women living in battering relationships as a result
of cumulative abuse.
Under Section 26 of RA9262, victim-survivors who are
found by the courts to be suffering from battered woman
syndrome do not incur any criminal and civil liability
notwithstanding the absence of any of the elements for
justifying circumstances of self-defense. The moment the
accused was found to be suffering from battered woman
syndrome, it is as if she was acting in self-defense. The
woman does not incur any civil or criminal liability. Thus, it
is akin to a justifying circumstance. Even if there is no
justifying circumstance, there is no unlawful aggression
coming from the victim because Sec. 26 states even if none
of the elements of the justifying circumstance of self-
defense are present.
Q: X and Y were living together as husband and wife.
During their 5 years of marriage, X has been repeatedly
and physically abusing the wife (slapping, boxing). Y
would not leave X because she wanted to have a full
family. Y consulted a psychiatrist and is in fact under
medication and treatment. One day, X got home and
when he saw Y, he slapped her and kicked her twice (on
the neck and on the stomach). Thereafter, the husband
went to the bedroom to sleep. While X was fast asleep,
Y thought the abuse was getting graver and graver. She
was afraid for her life and the lives of her children. Y
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stabbed X while sleeping. Y is now prosecuted for
parricide. Y’s defense was that she was suffering from
battered woman syndrome. She presented the
psychiatrist who was treating her. The psychiatrist
testified that the woman from day 1 of her marriage up
to the date of the incident has been repeatedly abused
by X. The psychiatrist testified that Y was continuously
living in fear and always trembling and afraid. If you
were the judge, would you convict Y (the wife) of
parricide or would you acquit based on battered
woman syndrome?
A: Acquit. In the case of People vs. Genosa, the SC said that
for battered woman syndrome to lie in favor of the accused,
it is necessary that there be at least 2 battering episodes
which has the following phases: (1) tension building phase,
(2) acute battering incident phase, and (3) tranquil or
loving phase. Here, the wife did not only experience 2
battering episodes but a whole 5 years of battering episodes
with all these phases. Therefore, she should be acquitted.
She incurs no civil nor criminal liability based on Section 26
of RA 9262.
*BAR Q: What if what the husband has been doing to the
wife was only verbal abuse? The husband and wife had
been living together. The husband has been verbally
abusing the wife everyday of their lives. One night,
when the said husband arrived home, he did not only
verbally abuse her but slapped her a number of times.
The following day, he asked forgiveness from the wife
and promised that it would not happen again. That
night, the husband arrived home and again, verbally
abused the wife stating foul and painful words against
her. Thereafter he went to sleep. The wife looked at her
husband and thought “he already slapped me once, he
could do this the next nights to come”. She took a knife
and stabbed her husband. The wife is now being
prosecuted for parricide. Her defense battered woman
syndrome. Will battered woman syndrome lie in her
favor?
A: NO, it would not lie in her favor. To bring about battered
woman syndrome, there must be at least 2 battering
episodes. Battery, as defined under RA 9262 is the infliction
of physical harm on the woman or her child which results in
physical, psychological, or emotional distress. Here, the
physical harm was only inflicted once. Therefore, battered
woman syndrome will not lie in favor of the wife.
ARTICLE 12 – EXEMPTING CIRCUMSTANCES
Q: What are exempting circumstances?
A: Those circumstances, which if present or attendant in the
commission of a felony, would serve to exempt the offender
from criminal liability because the offender acted without
voluntariness. There is either no criminal intent, no
freedom of action, or no intelligence on the part of the
offender. Since, he acted without voluntariness, he is
Criminal Law Review
Prosecutor Victoria C. Garcia
exempted from criminal liability BUT NOT FROM CIVIL
LIABILITY because a wrong has indeed been committed.
In justifying circumstances there is no crime, no criminal,
no criminal liability and as a rule, there is no civil liability.
In exempting circumstances, there is a crime, but there is no
criminal because he acted without voluntariness.
Therefore, there is no criminal liability, but there is civil
liability because a wrong/crime has indeed been
committed.
In case of exempting circumstances, just like in justifying
circumstances, if the offender is charged in court and the
offender raised as a defense any of the exempting
circumstances under Art. 12, the burden is upon him to
prove the elements of the exempting circumstances he is
raising. It is both an admission of the acts alleged but an
avoidance of criminal responsibility arising therefrom.
For example, the accused killed the victim. The accused
raised as a defense that he was insane at the time of the
commission of the crime. The burden is on him to prove
such insanity immediately prior to at the time of the
commission of the crime because the law presumes that he
is sane.
I. IMBECILITY AND INSANITY
1. An imbecile or an insane person, unless the latter has
acted during a lucid interval. When the imbecile or an
insane person has committed an act which the law
defines as a felony (delito), the court shall order his
confinement in one of the hospitals or asylums
established for persons thus afflicted, which he shall not
be permitted to leave without first obtaining the
permission of the same court.
Imbecile
- One who is already advance in age but he has only
the mental capacity of a 2- 7 year old child.
- Exempting in any and under all circumstances.
- There is no such thing as lucid interval in case of
imbecility.
Insane
- One who is suffering from total mental aberration
of the mind. He cannot determine right from
wrong. He cannot appreciate the consequences of
his act.
- Not exempting under all circumstances. It is
necessary that it must be proven that at the time of
the commission of the crime, he was insane and not
during a lucid interval. The civil code presumes
that all persons are sane. Therefore, the burden is
on him who invokes insanity to prove that he was
insane.
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The insanity that is exempting must be present immediately
prior to or at the time of the commission of the crime. If the
offender becomes insane during or after trial, before or
after conviction, and he was found guilty, it will not be an
exempting circumstance. He would not be placed behind
bars but in a mental institution. He will stay there until he
regains his sanity.
People vs. Halo and
People vs. Marzano
The SC in these cases did not appreciate the presence of
insanity. The SC said the accused cannot be considered as
insane immediately prior to or at the time of the
commission of the crime. They were knowledgeable of what
they were doing.
In an old case, the accused committed the crime while
sleepwalking. He was suffering from a state of
somnambulism at the time he committed the crime. The SC
said it was akin to insanity because at the time he was
committing the crime, he was deprived of reason because
he was not aware of what he was doing as he was sleep
walking.
II. and III. MINORITY
2. A person under nine years of age. (modified by Section 6
of RA.9344. Minimum age of responsibility is now 15 years or
under)
3. A person over nine years of age and under fifteen,
unless he has acted with discernment, in which case, such
minor shall be proceeded against in accordance with the
provisions of Art. 80 of this Code.
When such minor is adjudged to be criminally
irresponsible, the court, in conformably with the
provisions of this and the preceding paragraph, shall
commit him to the care and custody of his family who
shall be charged with his surveillance and education
otherwise, he shall be committed to the care of some
institution or person mentioned in said Art. 80.
*Q: What is the effect of minority on the criminal
liability of the offender? (This should be your answer if
asked in the Bar)
A: It depends on the age of the offender. If the minor
offender is 15 years of age or under at the time of the
commission of the crime, he is totally exempted from
criminal liability regardless of discernment.
If the minor offender is over 15 but below 18 years of age at
the time of the commission of the crime, discernment must
be considered. If he acted without discernment, he is still
Criminal Law Review
Prosecutor Victoria C. Garcia
exempt from criminal liability. However, if he acted with
discernment, he shall be prosecuted.
Q: X was being bullied by Y. He was 17 years old. He got
so fed up with Y, so he stabbed Y. Y died. Based on the
investigation, X acted with discernment. He
deliberately killed Y to stop the latter from bullying
him. X was 17 years old (over 15 but below 18) and he
acted with discernment. Therefore, he must be
prosecuted in court. After trial on the merits, the court
found him guilty as charged. Shall the judge impose a
penalty upon him? Shall the judge state that he is guilty
beyond reasonable doubt?
A: NO. If a child in conflict with law is found by the court to
be guilty beyond reasonable doubt, there shall be a
pronouncement as to the civil liability arising from the
crime committed but there shall be no pronouncement as to
his guilt. Instead, the judge shall place him under suspended
sentence without need of application. There is no need for
his counsel to apply for the said suspension. It is automatic
on the part of the judge to place him under suspended
sentence. And under Section 38, the law provides that the
suspended sentence shall apply to him even if the minor
offender is already 18 or above at the time of promulgation
of judgment. Therefore, he must be placed under suspended
sentence, provided that under Section 40 of RA 9344, he is
not yet beyond 21 years old. The moment he is beyond 21
years old, he can no longer be placed under suspended
sentence.
SEC. 38. Automatic Suspension of Sentence. – x x x
Provided, however, That suspension of sentence shall
still be applied even if the juvenile is already eighteen
years (18) of age or more at the time of the
pronouncement of his/her guilt.
SEC. 40. Return of the Child in Conflict with the Law to
Court. – x x x
If said child in conflict with the law has reached eighteen
(18) years of age while under suspended sentence, the
court shall determine whether to discharge the child in
accordance with this Act, to order execution of sentence,
or to extend the suspended sentence for a certain
specified period or until the child reaches the maximum
age of twenty-one (21) years.
Q: How would you know the age of the offender? What
proof is necessary to prove that the accused was indeed
a minor offender?
A: It can be proved through his birth certificate, baptismal
certificate, or any other pieces of documentary evidence. If
there are no documentary evidence that may be presented
in court, the minority of the accused can be determined
from the information coming from the said minor or from
the testimony of other persons knowledgeable of the said
minor offender. It can also be considered from the physical
appearance of the said offender.
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In case of doubt as to the age of the minor offender, the
doubt shall always be in favor of the said minor offender. He
shall enjoy all the benefits of RA9344 unless and until it is
proven that he was 18 years old or up.
People vs. Sarcia and
People vs. Mantalaba
There was doubt on the age of Sarcia and Mantalaba and yet
the SC ruled in their favor. They were 17 years old at the
time of the commission of the crime. In case of doubt, rule
in favor of minority of the said minor offender.
IV. ACCIDENT
4. Any person who, while performing a lawful act with
due care, causes an injury by mere accident without fault
or intention of causing it.
Elements:
1. Offender is performing a lawful act
2. He was performing the lawful act with due care
3. He causes injury to another by mere accident
4. The injury is without fault or intent on the part of
the offender.
It is something that happens outside the sway of things and
cannot be prevented even if the accused was performing a
lawful act with due care.
It is necessary that the performance of the lawful act was
done with due care. Because even if the offender was
performing a lawful act, if he is not exercising due care, he
becomes liable for the culpable felony of reckless
imprudence or simple negligence.
In case of accident, there is both no criminal and civil
liability because the offender was performing a lawful act.
Q: While X was getting out of their house, Y (the
neighbor) ran towards him, very mad, with a sharp bolo
raised on his hand in a hacking position. He was
shouting to X “papatayin kita!”. X waited and evaded the
blow, and thereafter tried to struggle for the possession
of the bolo. While struggling for the possession of the
bolo, X was able to disengage himself and was able to
gain possession of the bolo. In so doing, he hit the neck
of his friend Z who he did not know was there to help
him. The wound was not a fatal wound. X was charged
with attempted homicide. X said “It was purely an
accident. He is my friend. I have no intention to kill
him”. Are all the elements of accident present to exempt
X from both civil and criminal liability?
A: YES. First, X was performing a lawful act. He was trying
to defend himself. If he would not struggle for the bolo, he
Criminal Law Review
Prosecutor Victoria C. Garcia
would be killed. Therefore, he was doing it with due care.
The best way is to disengage it from the neighbor. And in so
doing, he caused an injury by accident to his friend Z. He did
not know that Z was there. There was no fault nor intent on
the part of X. Therefore, he should be absolved of criminal
liability.
Q: A police officer has 2 sons. One (X) is 17 years old, the
other is 4 years old. The 17 y/o son was already in
college and taking up criminology. The father has a
habit of giving the son his service pistol gun in order to
clean. He gave his son the job of cleaning his gun every
morning while the father was preparing breakfast. One
morning, while he was cleaning the gun, the 17 y/o son
saw his brother near the door. He told his brother “wag
mo buksan ng buksan yan!” but the brother did not
listen despite repeated warnings. X then pointed the
gun at his brother and pulled the trigger. The bullet hit
the brother’s head and the brother died. X is now being
prosecuted for the crime of homicide. His defense was
that he was a minor and he acted without discernment
because he did not know that there was a bullet inside
the gun. Second, he argued that it was merely an
accident. Will the defenses lie in his favor?
A: NO. The first defense that he was a minor and that he
acted without discernment has no merit. He acted with
discernment. The mere fact that he stated that he did not
know that there was a bullet in the gun therefore he has the
mental capacity to appreciate the consequences of his act.
He knows that if a gun would be fired and it has a bullet it
would kill a person. Therefore, he acted with discernment,
his defense of minority will not lie in his favor.
As to the defense of accident: To clean a gun is a lawful act,
but to point the gun at another person and pull the trigger
is no longer a lawful act. Therefore, the defense of accident
would not lie in favor of X.
V. IRRESISTABLE FORCE
5. Any person who act under the compulsion of
irresistible force.
Elements:
1. The compulsion is by physical force
2. Physical force must be irresistible
3. Physical force must come from a third person
It is said that there is irresistible force employed on the doer
of the act if the said accused has been reduced to an
instrument such that he acted not only without will but also
against his will. Therefore, he acted without freedom of
action, an element of voluntariness. Hence, he has to be
exempted from criminal liability.
VI. UNCONTROLLABLE FEAR
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6. Any person who acts under the impulse of an
uncontrollable fear of an equal or greater injury.
Elements:
1. Existence of an uncontrollable fear;
2. Fear must be real or at least imminent; and
3. Fear of the injury is greater than or equal to that
committed.
Whether it is compulsion of an irresistible force or impulse
of an uncontrollable fear of an equal or greater injury, what
makes these circumstances as exempting circumstances
would be the lack of freedom of action on the said offender,
which is an element of voluntariness.
It is necessary that the offender totally has no choice but to
do the criminal or wrongful act because of the irresistible
force or uncontrollable fear of equal or greater injury. In so
far as uncontrollable fear is concerned, it is necessary that
the threat employed on him must be real or imminent.
Criminal Law Review
Prosecutor Victoria C. Garcia
A: YES. There was uncontrollable fear. It was real. It was
imminent. X and Y had already stabbed W. The threat was if
Z would not throw the body of W inside the manhole, X and
Y were going to stab him. The act of killing is impending to
happen if he will not obey. The fear of the injury is greater
than the body because his life is more precious than that of
W. All the elements are present therefore, Z should be
exempted from criminal liability because he acted under the
impulse of an uncontrollable fear of equal or greater injury.
VII. LAWFUL AND INSUPERABLE CAUSE
7. Any person who fails to perform an act required by
law, when prevented by some lawful insuperable cause.
Elements:
1. An act is required by law to be done.
2. A person fails to perform such act.
3. Failure to perform such act was due to some lawful
or insuperable cause.

Q: X, the master who happens to be crippled, was calling This is also another exemption to the general rule that in
on Y, the lady helper/house maid, but Y would not case of exempting circumstances, there is no criminal
respond. The master got out of the wheelchair and out liability, but there is civil liability. In the 7 th exempting
of the house when he saw Y talking to Z, the driver. X circumstance, there is both no criminal liability and no civil
pulled out his gun, and in his anger told them to get liability.
inside the room of Y. At gun point he told the driver,
“you have sexual intercourse with her”. The driver JUSTIFYING EXEMPTING
repeatedly refused so X shot the leg of the driver. X then CIRCUMSTANCES CIRCUMSTANCES
threatened to shoot his head if he refused to have sex Affects the act and not the
with Y. The driver couldn’t do anything, he was so afraid Affects the offender and
offender or the doer of the
(a gun was pointed at his head), so he had carnal not the act.
act.
knowledge with Y in front of X. The driver was charged Offender acted within the
with the crime of rape. The defense of the driver was The offender committed a
bounds of the law. He is
that he merely acted under the compulsion of an wrongful act, a violation of
said not to have
irresistible force. Will his defense lie in his favor? the law.
transgressed the law.
A: YES. There was physical force, it was irresistible, it came There is a crime, but there
from the master. If he would not rape the maid, he would be There is no crime and there is no criminal because he
killed by the master. His leg was already shot, the next shot is no criminal. acted without
would be at his head. Therefore, having acted under the voluntariness.
compulsion of an irresistible force, he is exempted from There is no criminal
criminal liability, but not from civil liability. liability, but there is civil
There is no criminal and
liability because a wrong
Q: X, Y and Z were walking when they chanced upon W. civil liability.
has indeed been
X, Y and Z belong to a gang, a group, which is the enemy committed.
organization of W. X and Y immediately stabbed W. Z May be raised both in
was only there standing, looking. W fell on the ground. May be raised only in
intentional and culpable
Z told X and Y “Halika na habang wala pang intentional felonies.
felonies.
nakakakita!”. However, X and Y pointed their knives at
Z and said “Ihulog mo sa manhole”. Z refused, but X and
Y threatened to stab Z he would not throw W inside the
manhole. Z then opened the manhole, and threw the ARTICLE 13 – MITIGATING CIRCUMSTANCES
body of W. Later, Z was charged together with X and Y
for the crime of murder. According to Z, he merely acted Q: What are mitigating circumstances?
upon the impulse of an uncontrollable fear of equal or A: Those circumstances which if present or attendant in the
greater injury. Was there uncontrollable fear? commission of a felony would reduce the imposable penalty
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generally to the minimum period of penalty prescribed by
law.
In so far as exempting circumstances are concerned, the
offender acted without voluntariness. Therefore, he is
exempted from criminal liability.
In so far as mitigating circumstances are concerned, the said
offender acted with voluntariness, however, there is a
diminution on his voluntariness. There is diminution either
on criminal intent, freedom of action, or intelligence on the
part of the offender.
Q: What are the 2 kinds of mitigating circumstances?
A:
1. Ordinary mitigating circumstance – can be
offset by a generic aggravating circumstance. If not
offset, it will serve to lower the imposable penalty
to the minimum period of the penalty prescribed
by law.
2. Privileged mitigating circumstance – cannot be
offset by any aggravating circumstance. Its effect is
to lower the imposable penalty by 1 to 2 degrees.
I. INCOMPLETE JUSTIFYING OR INCOMPLETE
EXEMPTING
1. Those mentioned in the preceding chapter, when all
the requisites necessary to justify or to exempt from
criminal liability in the respective cases are not
attendant.
Q: What are the rules to determine if an incomplete
justifying or an incomplete exempting circumstance
shall be treated as an ordinary mitigating or as a
privileged mitigating circumstance?
A:
1. When majority of the elements necessary to justify
the act or to exempt the offender are present in the
commission of the crime, then it is treated as
privileged mitigating circumstance.
2. If less than a majority of the elements necessary to
justify the act or to exempt the offender from
criminal liability attended the commission of the
crime, then the incomplete justifying/ incomplete
exempting shall be treated only as an ordinary
mitigating circumstance.
3. If there are only 2 elements necessary to justify the
act or exempt the offender from criminal liability,
the presence of one element is already considered
majority. Therefore, the said incomplete justifying
or incomplete exempting shall be considered as a
privileged mitigating circumstance.
4. In case of incomplete self-defense, incomplete
defense of a relative, or incomplete defense of a
stranger, there must always be unlawful
aggression. If only the element of unlawful
Criminal Law Review
Prosecutor Victoria C. Garcia
aggression is present, the said incomplete self-
defense, incomplete defense of a relative, or
incomplete defense of a stranger shall only be an
ordinary mitigating circumstance. However, if
aside from unlawful aggression, another element is
present, then it shall be considered as a privileged
mitigating circumstance.
II. MINORITY AND SENIORITY
2. That the offender is under eighteen year of age or over
seventy years. In the case of the minor, he shall be
proceeded against in accordance with the provisions of
Art. 80.
Note: Do not say senility. Not all senior citizens are senile.
If the offender is over 15 but below 18, and he acted with
discernment - not exempting but a privilege mitigating
circumstance. He would no longer be exempted but his
minority would mean a lowering of the imposable penalty
by one degree as provided for under Article 68 of the RPC.
If minority is not an exempting circumstance, minority is
always a privileged mitigating circumstance.
Seniority is a mere an ordinary mitigating circumstance.
In the previous years when we did not have RA9346, which
prohibits the imposition of death penalty, seniority was a
privileged mitigating because if the said senior citizen and
the penalty for the crime is death, automatically, it shall be
reduced to reclusion perpetua. But now, it applies to all
cases, not only because he is a senior citizen because for any
person committing a heinous crime punished by death, it
shall be lowered to reclusion perpetua because of RA 9346
which prohibits the imposition of death penalty.
III. PRAETER INTENTIONEM
3. That the offender had no intention to commit so grave
a wrong as that committed.
Elements:
1. A felony has been committed.
2. There is a notable disparity between the means
employed by the offender and the resulting felony.
IV. SUFFICIENT PROVOCATION OR THREAT
4. That sufficient provocation or threat on the part of the
offended party immediately preceded the act.
Elements:
1. the provocation must be sufficient
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2. it must originate from the offended party
3. the provocation must be immediate to commission
of the crime by the person who was provoked.
It is necessary that the said provocation must be coming
from the offended party. Even if the accused was provoked,
even if there was sufficient provocation that caused the
offender to commit the crime, if the sufficient provocation
came from a third person not from the victim, sufficient
provocation would not mitigate the liability of the offender.
It must be the victim who provoked the accused.
Under the 3rd
element, there must be no period of time that
had lapsed between the provocation and the commission of
the crime by the accused. Right after the offender has been
provoked by the victim, he committed his crime against the
victim.
V. IMMEDIATE VINDICATION OF A GRAVE OFFENSE
5. That the act was committed in the immediate
vindication of a grave offense to the one committing the
felony (delito), his spouse, ascendants, or relatives by
affinity within the same degrees.
Elements:
1. that there be a grave offense done to:
(a) the one committing the felony,
(b) his spouse,
(c) ascendants,
(d) descendants,
(e) legitimate, natural, or adopted brothers
or sister,
(f) relatives by affinity within the same
degree
2. The commission of the crime was done in
immediate vindication of the said grave offense
The grave offense refers to any act that caused the accused
pressure, tension, pain and move him to take a revenge or
vindicate himself. It need not be an act punished by law.
The 2nd element also used the word “immediate”. The
commission of the crime was done in immediate vindication
of a grave offense. The said grave offense must be the
proximate cause of the commission of the crime. Therefore,
the word immediate may allow a lapse of time provided that
at the time of the commission of the crime, the accused was
still enveloped with the pain brought about by the said
grave offense.
VI. PASSION OR OBFUSCATION.
6. That of having acted upon an impulse so powerful as
naturally to have produced passion or obfuscation.
Criminal Law Review
Prosecutor Victoria C. Garcia
Elements:
1. There be an act that is unlawful and sufficient to
produce passion and obfuscation on the part of the
accused.
2. That the commission of the act that produced
passion and obfuscation must not be far removed
from the commission of the crime by a
considerable length of time during which the
offender might have recovered his normal
equanimity.
Under the 1st element, it is necessary that an unlawful,
illegal, or wrongful act was done against the accused.
Because of that, the accused committed the said crime.
Therefore, the said feeling of passion and obfuscation on the
part of the said accused must arise from lawful sentiments
because an unlawful/wrongful act had been done against
him.
It must be immediate and there must be no considerable
lapse of time in between for the offender to have recovered
his normal equanimity.
Miranda v. People
CRIME CHARGED: Frustrated homicide
RTC: Frustrated homicide
CA: Affirmed the RTC.
SC: Miranda was convicted of frustrated homicide but he is
entitled to the mitigating circumstance of Sufficient
Provocation. Although Pilo's act of hurling stones may not
be regarded as an unlawful aggression, admittedly,
however, such deed was vexatious, improper and enough to
incite Miranda into anger. The fact that Miranda was stirred
to rage was understandable considering that his wife and
daughter were at his home, and were peacefully having
supper when Pilo threw the stones.
Urbano vs. People
There was a fight between the accused and the victim. The
accused Urbano was a small man but he was able to land
one lucky punch on the face of the victim Tomelden. The
victim became unconscious and since then had not been
feeling well on the head until he died.
CRIME CHARGED: Homicide
RTC: Homicide
CA: Affirmed the RTC.
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SC: Urbano was held criminally liable under the proximate
cause doctrine because his act of punching was a felonious
act. However, SC appreciated 2 mitigating circumstances:
sufficient provocation and lack of intent to commit so grave
a wrong. The fight ensued because Tomelden has always
been bullying, embarrassing, and humiliating Urbano. The
said act of bullying by the victim which ensued into a fight
is sufficient provocation. Further, the SC said there was on
the part of the accused no intent to commit so grave a wrong
as that committed. He only landed one lucky punch. Who
would have thought that the victim would die. So the SC also
appreciated praeter intentionem.
People vs. Ignas
The husband shot the paramour of his wife at the public
market 2 weeks after he discovered their affair. The
husband raised the mitigating circumstances of immediate
vindication of a grave offense, sudden impulse of passion
and obfuscation, and voluntary surrender.
CRIME CHARGED: Murder.
RTC: Murder.
CA: Affirmed the RTC.
SC: Homicide. The mitigating circumstances mentioned
were not considered by the court. The SC said 2 weeks had
already lapsed from the time of the discovery of the
infidelity to the time of the killing. Sufficient time have
lapsed for him to have recovered his normal equanimity.
Therefore, it cannot be said that the act of killing was done
in the immediate vindication of the grave offense. Neither
was it done based on sudden impulse of passion and
obfuscation. Voluntary surrender was also not considered
because there were already leaflets being given saying that
he was a wanted person before he surrendered.
The SC also said that it was wrong for Ignas to also raise the
defense of sudden impulse of passion and obfuscation after
having raised the defense of immediate vindication of the
grave offense. If par.4 (sufficient provocation), par.5
(immediate vindication of a grave offense), and
par.6(sudden impulse of passion obfuscation) are all
attendant in the commission of the felony, they shall only be
considered as one mitigating circumstance if they arose
from the same fact and circumstances. Here, the SC said the
alleged immediate vindication arose from the same
circumstance of sudden impulse of passion and obfuscation,
thus, it is wrong for the accused to raise them both at the
same time.
VII. VOLUNTARY SURRENDER and
VOLUNTARY PLEA OF GUILT
Criminal Law Review
Prosecutor Victoria C. Garcia
7. That the offender had voluntarily surrendered himself
to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to
the presentation of the evidence for the prosecution;
There are two mitigating circumstances here:
1. Voluntary surrender
2. Voluntary plea of guilt
Elements of VOLUNTARY SURRENDER:
1. that the offender has not been actually arrested
2. that he surrendered to a person in authority or his
agent
3. such surrender must be voluntary.
Under the first element, the public officer has not yet gone
out to look for the offender. It is necessary that the police
officer has not yet gone to the last known address of the
offender to look for him and arrest him. Even if there is
already a warrant of arrest issued by the court, if the said
police officer or any public officer armed with the said
warrant of arrest had not yet gone out to the last known
address of the offender to serve the warrant, and he
surrendered, there is still voluntary surrender because he
has not yet been actually arrested.
2nd element, what did he do? He went to the barangay
captain, to the mayor, to the judge, governor, or any person
in authority or to the police to give himself up freely or
voluntarily. What was his purpose? To surrender
voluntarily.
The said act of surrendering is said to have been done
voluntarily when it is done by the offender spontaneously
and unconditionally. Either the offender felt remorse, or he
wanted to save the government the time, effort, money that
they would spend if they would look for him.
Q: X, in the course of a fight, in front of so many people,
stabbed and killed Y. Thereafter, X went inside his
house sitting inside the terrace. The people called the
police. The police arrived at the house of X. X upon
seeing the police opened the gate and gave his hands to
be placed with handcuffs. Thereafter, without any
resistance, he went with the police. He was charged
with homicide. After trial, the judge did not consider
the act of X of voluntarily going with the police as
voluntary surrender which would mitigate his liability.
Is the judge correct?
A: YES, the judge is correct. He did not give himself up freely
to the police. It was the police who came to his house based
on the calls and reports of the people. The fact that he did
not resist cannot be considered as voluntary surrender
because the police went there to arrest him. Therefore, the
1st element is immediately absent.
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Q: X, in the course of a fight, in front of so many people,
stabbed and killed Y. Thereafter, he immediately went
to the house of the barangay chairman and told the
chairman what he did. He gave the knife to the barangay
chairman. The barangay chairman brought him to the
police station. X was charged and convicted of
homicide. The court did not consider his act of going to
the barangay chairman as voluntary surrender. Is the
court correct?
A: NO, the court is wrong. He has not been actually arrested.
Right after committing the crime, he went to the house of
the chairman, surrendered the weapon, gave himself up
willfully and told the chairman what he did. He surrendered
to the barangay chairman, a person in authority. The said
act was done voluntarily. He in fact admitted it before him
and he saved the government the time, the effort that they
will spend if they will look for him.
Elements of VOLUNTARY PLEA OF GUILT:
1. The plea of guilt must be done spontaneously and
unconditionally.
2. The plea of guilt must be done in open court.
3. The plea of guilt must be done before the
presentation of the evidence for the prosecution.
The plea of guilt is said to have been done spontaneously if
it is to the original crime charged.
The plea of guilt is said to have been done unconditionally
if it is not subject to any condition.
Q: Where should plea of guilt be given?
A: The plea of guilt must be made in open court, before the
court trying the case.
Q: When should it be given?
A: Before the presentation of evidence for the prosecution.
Q: X was charged with frustrated homicide. During
arraignment, he pleaded not guilty. During pre-trial, his
counsel told the court “Your Honor, we move that the
accused be allowed to plead guilty to a lesser crime of
serious physical injuries.” The private complainant and
the fiscal agreed and the judge granted the motion. The
accused was rearraigned and the information read that
he was being charged for serious physical injuries. He
pleaded guilty. The judge did not consider his plea of
guilt as a mitigating circumstance. Is the judge correct?
A: YES. His plea of guilt was not to the original crime
charged; therefore, it was not done spontaneously. The
original crime charged was frustrated homicide. Yet, he
pleaded guilty to the lesser crime of serious physical
injuries based on a valid plea-bargaining agreement. Since
it was not done spontaneously, it cannot be considered as a
mitigating circumstance.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: X was found in possession of shabu and was arrested.
He was charged with violation of Section 11 of RA9165
(Illegal possession of dangerous drugs). During
arraignment, he immediately pleaded guilty. He
wanted his penalty to be lowered. In its decision, the
judge did not consider X’s voluntary plea of guilt as a
mitigating circumstance. Is the judge correct?
A: YES, he is correct. RA9165 is a violation of a special penal
law. Although under Article 10 of the RPC, the provisions of
the RPC apply suppletorily to violations of special penal
laws, the exception is when the special penal law provides
otherwise. Section 98 of RA9165 provides expressly
provides that the RPC shall not apply to violations of RA
9165. Therefore, you cannot apply the mitigating
circumstance of voluntary plea of guilt.
Second, the said violation of RA 9165 has a different
nomenclature of penalties than that of the RPC. In case of
RA9165, the penalties are life imprisonment to death, 10
years and 1 day to 20 years. Whereas, in the case of the RPC,
the penalties are reclusion perpetua, reclusion temporal,
prison mayor. They do not have the same nomenclature of
penalties. Therefore, the RPC cannot apply to violations of
RA9165. The court is correct in considering the mitigating
circumstance of voluntary plea of guilt. The only exception,
as provided for under Section 98 is when the offender is a
minor.
Q: The guard of an exclusive subdivision called the
police authorities and said that there was this man (X)
who has been on board a motorcycle and roaming
around the subdivision since 11PM. It is now 11:40PM.
The guard told the police that he already stopped the
man and asked him what he was doing but the man just
ignored him, so they needed the help of the police. The
police arrived. They positioned themselves at the guard
post. When the motorcycle arrived, the police on board
their patrol cars followed the motorcycle and stopped
the man. The police asked him why he was roaming
around and asked him if he has any relatives who lived
in the subdivision. The man replied that he had no
relatives living there so the police asked him to alight
from the motorcycle. When X was alighting, his shirt
lifted, and the police saw a gun tucked at the waist of X.
The police asked if he had a license or a permit to carry
the gun, X said none and he gave the gun to the police
officers. He was charged with illegal possession of a
loose firearm (violation of RA10591). During
arraignment, hoping to lower his penalty, he
immediately pleaded guilty to the crime charged. In its
decision, the judge did not consider X’s voluntary plea
of guilt as a mitigating circumstance. His counsel filed a
MR but it was denied on the ground that RA10591 was
a special penal law. Is the judge correct?
A: NO, the judge is wrong. Although RA 10591 is a special
penal law, it has the same nomenclature of penalties as that
of the RPC. Under RA10591, the penalty for illegal
possession of a low caliber pistol is prision mayor. Since it
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has the same nomenclature of penalties, Article 10 of the
RPC applies suppletorily.
Q: Senator X was charged with the crime of plunder. The
Sandiganbayan issued a warrant of arrest. Senator X
and his subordinates who were charged along with him
saw on national television that a warrant of arrest has
been issued against them. Immediately, they went to
the said justices and gave themselves up. They were
placed behind bars. Plunder, being a non-bailable
offense, the penalty is Reclusion perpetua to death.
After trial on the merits, they were found guilty of
plunder. The justices considered their act of
surrendering as voluntary surrender and therefore, a
mitigating circumstance. Are the justices of the
Sandiganbayan correct?
A: YES, they are correct. Although RA7080 (The Anti-
Plunder Act) is a special penal law, Section 2 thereof
expressly provides that mitigating circumstances can be
considered.
Section 2. Definition of the Crime of Plunder;
Penalties – x x x In the imposition of penalties, the
degree of participation and the attendance of mitigating
and extenuating circumstances shall be considered by
the court. x x x
Mariano vs. People
CRIME CHARGED: Frustrated Homicide.
RTC: Frustrated Homicide
CA: Reckless Imprudence resulting in serious physical
injuries
SC: Reckless Imprudence resulting in serious physical
injuries. The SC said that in case of quasi-offenses, courts
are not mandated to consider mitigating circumstances.
“Paragraph 5 of Article 365, Revised Penal Code, expressly
states that in the imposition of the penalties, the courts shall
exercise their sound discretion, without regard to the rules
prescribed in Article 64 of the Revised Penal Code. "The
rationale of the law can be found in the fact that in quasi-
offenses penalized under Article 365, the carelessness,
imprudence or negligence which characterizes the
wrongful act may vary from one situation to another, in
nature, extent, and resulting consequences, and 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 bound by what we may call the mathematical
formula provided for in Article 64 of the Revised Penal
Code. On the basis of this particular provision, the trial court
was not bound to apply paragraph 5 of Article 64 in the
instant case even if appellant had two mitigating
Criminal Law Review
Prosecutor Victoria C. Garcia
circumstances in his favor with no aggravating
circumstance to offset them.
Q: While X was driving his car, he hit and bumped a
pedestrian. Afraid of what the people would do to him,
he left immediately. The next day, he saw on the news
that the person he hit died in the hospital. X was a good
man and it just so happened that he was sleepy on the
night of the incident. He was bothered by his
conscience, so he immediately went to the police. The
police did not know that he was the driver. There was
no CCTV in the area. X told them he was the driver of the
car that hit and killed the victim. X was charged with
reckless imprudence resulting in homicide and posted
bail. During arraignment, he pleaded guilty. In the
decision, the judge did not consider his voluntary
surrender and voluntary plea of guilt as mitigating
circumstances. Is the judge correct?
A: YES. As held in the case of Mariano vs. People, in case of
quasi-offenses, courts are not mandated to consider
mitigating circumstances. The reason is it is clearly
provided for under Art.365 that in imposing the penalty for
quasi-offenses, courts are not mandated to consider the
rules provided for under Art 64 of the RPC (application of
mitigating and aggravating circumstances in divisible
penalties). Since it is the law itself that provides that
mitigating circumstances may or may not be considered,
courts are not mandated to consider it. The consideration of
the circumstances would depend solely on the sound
discretion of the court/judge.
VIII. DEAF AND DUMB, BLIND, OR SUFFERING SOME
PHYSICAL DEFECT
8. That the offender is deaf and dumb, blind or otherwise
suffering some physical defect which thus restricts his
means of action, defense, or communications with his
fellow beings.
Elements:
1. That the offender was suffering from some physical
defect.
2. That the said physical defect has restricted his
means of action, defense, or communications with
his fellow beings.
There must be a connection or relation between the
physical defect being suffered by the offender and the crime
that he committed. His physical defect must have restricted
means of action, defense, or communications with his fellow
beings.
IX. ILLNESS
9. Such illness of the offender as would diminish the
exercise of the willpower of the offender without
however depriving him of the consciousness of his acts.
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A.Y. 2020 – 2021 Prosecutor Victoria C. Garcia

It is necessary that the offender was suffering some illness
and the said illness diminishes the exercise of his willpower.
He knows what he is doing. However, he has a diminished
control of his act, a diminished freedom of action. Therefore,
it will mitigate his criminal liability.
X. ANALOGOUS CIRCUMSTANCES
10. And, finally, any other circumstances of a similar
nature and analogous to those above mentioned.
Nizurtado vs. Sandiganbayan
Nizurtado surrendered himself to the authorities and
restituted the P10,000.
CRIME CHARGED: Complex crime of malversation of public
funds through falsification of public document
SANDIGANBAYAN: Guilty beyond reasonable doubt of the
complex crime of malversation of public funds committed
through falsification of public document.
SC: Restitution of the amount malversed in case of
malversation is akin to voluntary surrender. The SC
appreciated 2 voluntary surrender: the physical voluntary
surrender and the restitution which is akin to voluntary
surrender under Art. 13 of the RPC.
MARCH 17, 2021
ARTICLE 14 – AGGRAVATING CIRCUMSTANCES
❖ Those which if present or attendant in the
commission of a felony will serve to increase the
imposable penalty without however going beyond
the maximum penalty prescribed by law.
❖ The moment the commission of a felony was
attended by an aggravating circumstance, the court
shall impose the maximum penalty. However, it is
necessary that in imposing the penalty, the court
cannot impose a penalty beyond the maximum
penalty prescribed by law.
❖ The effect of an aggravating circumstance is to
increase the penalty. Reason is: it shows the
greater criminality on the part of the offender. If
mitigating shows the lesser perversity and
therefore, the penalty is lowered. In case of
aggravating, it reveals the greater criminality and
so the penalty is increased. But the limit is the
maximum penalty prescribed by law.
❖ Therefore, no matter how many aggravating
circumstances attended the commission of the
crime, the court cannot impose a penalty beyond
the maximum penalty prescribed by law. So if a
crime is attended by ten aggravating circumstances,
all of them were alleged and proven, the court
cannot impose a penalty beyond the maximum
penalty prescribed by law. This is the limit.

Different Kinds of Aggravating Circumstances

1. Generic Aggravating Circumstance

• are those which apply to all kinds of crimes

Example: whatever be the crime committed, if it is

committed at nighttime, the offender deliberately sought
the cover of darkness to assure the commission of the crime,
it will aggravate the criminal liability of the offender.
Nighttime is a generic aggravating circumstance, it applies
to all kinds of crimes whether it be for crimes against
persons, crimes against property, crimes against chastity
crimes against public order, or crimes against public
interest.

PROSEC NOTES: recidivism.

2. Specific Aggravating Circumstances

• are those that apply only to a certain or
particular crimes

Example: In Par. 16 of Art. 14, Treachery. It applies only to

crimes against persons, those under Title 8. Treachery is
NOT considered in crimes against public order, crimes

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against chastity, crimes against public interest and in
crimes against property.
Prosec Notes: Cruelty which applies only to crimes against
Persons
3. Inherent Aggravating Circumstances
• are those which are of necessity accompanied
in the commission of the crime.
• it is considered as an ingredient or element in
the commission of a crime. Without which, the
crime would not have been consummated.
• even if they are present, they are no longer to
be considered so as to increase the imposable
penalty because they are inherent elements in
the commission of the crime.
Example: Evident premeditation is inherent in ALL
crimes against property. Hence, it is not considered in
robbery, theft, estafa because it is inherent.
Prosec Notes: Dwelling is considered inherent In Violation
of Domicile.
4. Special Aggravating Circumstances
• are those which if present would provide for
the imposition of the maximum penalty
prescribed by law.
• the moment a special aggravating
circumstance attended the commission of the
crime, mitigating circumstances are no longer
considered except, privileged mitigating
circumtances.
• Automatically the maximum penalty should be
imposed by the court.
Example: If the crime is committed by an offender who is
proven to belong to a syndicate or organized crime
group. Under Art.62 as amended by RA 7659, the maximum
penalty prescribed by law shall be imposed.
5. Qualifying Aggravating Circumstances
• are those which either change the nature of the
crime to bring about a more serious crime with
a higher penalty or even without changing the
nature of the crime it brings about the
imposition of a higher penalty.
Example: If the act of killing is attended by Treachery,
Abuse of Superior Strength. From the mere crime of
Homicide where in the penalty is reclusion temporal, it will
change the nature of the crime to Murder with a higher
penalty of reclusion perpetua to death.
Those enumerated under Art 248, Murder. Such
circumstances qualify Homicide into Murder and to
increase the imposable penalty.
Criminal Law Review
Prosecutor Victoria C. Garcia
In case of qualifying aggravating circumstance, for example,
A killed B there was treachery, it was done in consideration
of a price, reward or promise, there was also cruelty, so
there are three qualifying aggravating circumstances
present. Only one of them will qualify the killing to murder.
So if treachery is already proven, the crime committed is
already murder. Cruelty and the other circumstance of in
consideration of a price, reward or promise shall only be
considered as generic aggravating circumstances.
While Justifying Circumstances, Exempting and Mitigating
Circumstances are not alleged in the Information because
they are not for the prosecution to prove, they are for the
defense to prove so as to lower the imposable penalty or
exempt the offender from criminal liability. BUT not in
Aggravating Circumstances, because whatever be the crime,
in order for it to be considered against the accused, it must
be both alleged in the Information and proven during
trial.
If it is not alleged in the Information even if proven during
trial, the court cannot consider it because in doing so the
court has deprived the accused to be informed of the nature
and cause of the accusation against him because the effect
of an aggravating circumstance is to increase the imposable
penalty, he must be given the opportunity to rebut the
presence of the said aggravating circumstance.
Q: X committed a crime – killing Y. In killing Y, it was
alleged in the information that the act of killing was
attended by treachery and abuse of superior strength.
Both were also proven. If you were the judge, how will
you consider these two qualifying aggravating
circumstances?
A: You have to convict the accused with the crime of murder
qualified by treachery. Abuse of superior strength has no
more effect because if both treachery and abuse of superior
strength attended the commission of the crime, treachery
absorbs abuse of superior strength. Therefore, no need to
consider abuse of superior strength.
Q: X killed Y. It was alleged in the information that the
killing attended by treachery. He killed Y because he
was given P500, 000. While Y was crossing the
pedestrian, he hit and bumped Y with his car. So, three
qualifying aggravating circumstances were alleged –
treachery, in consideration of a prize, reward, or
promise, and use of a motor vehicle. All of them were
proven in the trial. If you were the judge, how will you
appreciate these qualifying circumstances?
A: Convict the accused of murder qualified by treachery. In
consideration of a prize, reward, or promise and use of
motor vehicle shall be considered as generic aggravating
circumstances. Therefore, there are qualifying aggravating
circumstances, since you only need one qualifying to qualify
the killing to murder, the other aggravating circumstances
alleged and proven shall be considered as generic
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aggravating circumstances. Therefore the crime committed
is murder qualified by treachery. The fact that two generic
aggravating circumstances are present means that the
maximum period of penalty shall be the one imposed since
the generic aggravating circumstances are not offset by any
mitigating circumstance.
I. That advantage be taken by the offender of his
public position.
❖ Only a public officer can take advantage of his
public position in the commission of the crime.
Therefore, this aggravating circumstance can be
applied only if the offender is a public officer.
❖ In committing the crime, the public officer had
taken advantage of his public position.
Q: When can it be said that the public officer had taken
advantage of his public position in the commission of
the crime?
A: When the offender use, misuse or abuse his public
position in order to commit the crime or to facilitate the
commission of the crime. The public officer took advantage
of the prestige, influence, or ascendency that his office
affords him in order to commit the crime or to facilitate the
commission of the crime.
While under Art. 14, taking advantage of one’s public
position in the commission of the crime is a mere generic
aggravating circumstance, under Art. 62 as amended by RA
7659, it is a special aggravating circumstance because the
law provides that the maximum penalty should be the one
imposed.
The moment the crime is committed by a public officer and
the public officer took advantage of his public position to
commit the crime, the maximum penalty shall be imposed.
EXCEPT, when it is inherent in the commission of the crime.
Q: While X was walking, here comes a police car. The
police officers inside the car saw X. Police officer Y and
Z looked at each other and told each other “Isn’t that X,
the suspect in the robbery in this subdivision?” The two
officers alighted and told X “We are arresting you. You
are a suspect in the robbery in this subdivision.” Without
any warrant of arrest, they arrested X and brought him
inside the police car. Inside the police car, they were
telling X that he should admit to the commission of the
crime so that they can already charge him in an
Information in court. But X refused, he insisted that he
has nothing to do with the act of robbery. The police
officers mauled him, boxed him and held his head and
banged it on the window of the car and thereafter,
Police Officer Y took a pistol and shot X. Thereafter,
they dropped X on the ground. X however, was seen by
a passerby. X was brought to a hospital. But X was
pronounced dead on arrival. In the commission of the
Criminal Law Review
Prosecutor Victoria C. Garcia
crime, did police officers Y and Z take advantage of their
public position?
A: Police Y and Z took advantage of their public position.
Reason is: had they not been police officers, they wouldn’t
have arrested X. Police Officers Y and Z obviously used the
ascendancy, the prestige, and the authority that their office
affords them in order to arrest him and thereafter, kill him.
Therefore, in the commission of the said killing, a public
officer – the police officers, took advantage of their public
position.
Q: X was walking. The police officers Y and Z arrested
him for being a suspect for a robbery. They brought him
inside the car and brought him to the police station,
they incarcerated him. His wife, W, visited him. After
visiting X, the wife was already about to leave, the
moment the wife was outside, suddenly here comes
police officer Y. PO Y dragged the wife in a secluded
place and had carnal knowledge of her by using force
and violence. In the commission of the crime, did PO Y
take advantage of his public position?
A: The taking advantage of public position is not an
aggravating circumstance. The said police officer did not
use, misuse or abuse his public position in the commission
of the crime, it has nothing to do with the crime because the
said woman is not in his custody. The woman merely visited
her husband and was already out. The said PO could have
raped the said wife even without being a police officer.
Taking advantage of one’s public position is a special
aggravating circumstance if attended in the commission of
the crime.
Q: Police officer A was having a drinking spree with his
friends outside his house. In the course thereof, they
were discussing about the alleged shoot out in Quezon.
According to the police officer, since he was a police
officer, it was a shoot out. But according to his friend it
was a rob out. They were arguing, exchanging views
until the police officer got mad. At that time, he had with
him his pistol. He used his service pistol and shot his
friend who thereafter died. Is the said act of killing done
by taking advantage of his public position?
A: This aggravating circumstance is not present. It is not
present because the said offender, public officer, did not use
or misuse his public office. He did not use the influence, the
ascendency, or the prestige of his office in order to commit
the crime. Even not being a public officer, he could have
killed his friend in the same situation. He could even have
used another weapon, not necessarily his service pistol.
Q: The police officers will stop jeepney drivers and will
ask for tong every morning and so until one time when
the jeepney driver filed a case of robbery extortion
against him. In the information it was alleged that he
committed this act by taking advantage of his public
position, the said circumstance was alleged in the
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information and proven during trial. How it is to be
appreciated?
A: It is a Special Aggravating Circumstance because under
Art. 62 as amended by RA 7659, the Heinous Crime Law, and
the maximum period for the penalty prescribed by law shall
be the one imposed. It cannot be offset by any mitigating
circumstance.
Q: The police officers raided a bar and among the
women arrested was Y. After investigation, Y is brought
in a certain room and there the arresting police officer
had carnal knowledge of Y against her will, and so the
crime of Rape was filed against the said police officer.
In the information, it was alleged that the aggravating
circumstance of taken advantage of his public position
was present/attended the commission of the crime.
How is the advantage taken of his public position to be
considered by the court?
A: It is to be considered as a Qualifying Aggravating
Circumstance. Under Art.266-B of the RPC "If the victim is
in the custody of police authorities, the military or any
member of any penal institutions, it will be considered as
Qualified Rape and the imposable penalty will be Death. So
it changed the nature of the crime from Rape to Qualified
Rape, and from Reclusion Perpetua the penalty was
increased to Death. So it will Qualify the commission of the
crime, the crime committed is Qualified Rape.
II. That the crime be committed in contempt of or with
insult to the public authorities.
Elements:
1. That the public officer or public authority is
engaged in the discharge of his function;
2. That the public authority is not the person against
whom the crime is committed;
3. That the offender knows him to be a public
authority;
4. That the presence of the public authority did not
prevent the offender from the committing the
crime.
This is considered as an aggravating circumstance because
of the offender’s lack of respect of lawful authorities. He
knows that a lawful authority was present when he was
committing the crime but nevertheless proceeded in the
commission of the crime.
1. That the public officer or public authority is
engaged in the discharge of his function;
It is necessary that the said public authority is discharging
his functions at the time that the crime was committed.
Q: Who is a public authority?
A: Public authority or a person in authority is any person
directly vested with jurisdiction whether an individual or
Criminal Law Review
Prosecutor Victoria C. Garcia
some members of court or governmental commissioner. It
is necessary that he has the duty to govern and execute the
laws. Example: Mayors, barangay chairman
Police officer is merely an agent of a person in authority.
2. That the public authority is not the person
against whom the crime is committed;
That the public authority concerned must not be the victim.
If he is the victim, then this aggravating circumstance will
be inherent because if he himself is the one attacked or
assaulted, it will be considered as Direct Assault. In case of
Direct Assault, in contempt of or with insult to public
authorities is an inherent element. In fact, it is the very
essence of the crime.
3. That the offender knows him to be a public
authority.
• there must be knowledge on the part of the
offender that the said person is a public
authority. Otherwise, it cannot be said that he
disrespected the said person as a public
authority if he has no knowledge that he is a
public authority.
4. That the presence of the public authority did
not prevent the offender from the commission
of the crime.
For this circumstance to be appreciated it is necessary that
the crime was committed in the presence of public
authorities while the latter is engaged in the performance of
their official duties. So even if there is a public authority at
the time of the commission of the crime the offender still
committed the crime, and the presence of such authorities
did not prevent the offender from making the crime.
Q: X was on his way to the city hall, he was submitting
some documents regarding his business permit. He was
walking upstairs while reviewing the documents and so
he was not looking. As he was walking upstairs, his
enemy/rival Y was going downstairs. As X was not
looking, X elbowed Y. Y told X “Why did you elbow me?”
X said “I’m sorry, I was not looking. It was accidental. I
am sorry.” However, Y was very mad. Y said “No, it was
deliberate on your part” and Y shouted at X. X said “I said
I’m sorry, I did not see you going down.” Thereafter, X
left Y. X proceeded to his destination which is the
Mayor’s office. When X was at the door step of the
Mayor’s office, Y followed him. Y still began stating
invectives, foul words against X. X could no longer
contained his temper and so he answered back at Y, “I
already apologized, what else do you want me to do?”.
At that moment, the door of the office of the Vice Mayor
on the right side open and the Vice Mayor came outside.
The Vice Mayor was about to attend a meeting but upon
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seeing X and Y having a heated altercation, he went to
them and told them “What is the problem to the both of
you? Give respect to the City Hall! You shake hands,
whatever your problem is.” However, X told the Vice
Mayor “I already apologized but he wouldn’t accept my
apology.” This angered Y, Y took an ice pick and
thereafter stabbed X right in front of the Vice Mayor. X
was brought to the hospital and Y was arrested. It was a
shallow wound on the chest. A case for attempted
homicide was filed against Y. It was alleged that the
crime was committed in contempt of or with insult to
public authority, the presence of the 2 nd aggravating
circumstance. Is this aggravating circumstance
attendant?
A: First element, that the public officer or public authority
is engaged in the discharge of his function.
The Vice Mayor is a public authority. Any public officer has
the duty to maintain peace and order. The said vice mayor
was maintaining peace and order when he tried to pacify
both X and Y. Therefore, he was performing his function.
Second, that the public authority is not the person against
whom the crime is committed.
The Vice Mayor is not the person against whom the crime
was committed.
Third, That the offender knows him to be a public authority.
Y knows him to be a public authority being the vice mayor.
Fourth, That the presence of the public authority did not
prevent the offender from the committing the crime.
The presence of the vice mayor did not Y from stabbing X
with an ice pick. There was disrespect on the part of Y in
committing the crime. He knows that the vice mayor was
there trying to pacify them yet, he still stabbed X with the
use of an ice pick. Therefore, the commission of the crime
was attended with the aggravating circumstance of with
contempt of or with insult of public authorities.
Q: What if the barangay chairman was in a restaurant
having dinner with his wife because it was their
wedding anniversary. Suddenly here comes A, B and C
who are constituents of the barangay chairman. Upon
seeing the chairman, they greeted him and even
congratulated him and his wife upon learning that they
were celebrating their wedding anniversary. They
seated next to the table of the chairman and ordered
food. In the giving of the food, there was an argument
between A and the waiter. The argument immediately
became a heated one. A took the table knife and stab the
waiter. The waiter suffered serious physical injuries.
Prosecuted for frustrated homicide. In the prosecution
for said crime, is the aggravating circumstance of in
contempt of or with insult to public authority present?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: it is not present because the first element is absent. The
first element, that the public officer or public authority is
engaged in the exercise of his function. At the time of the
commission of the crime, yes he was there but he was in a
private act. He was not engaged in the exercise of his
function, hence it cannot be said that the said offender
insulted the said public authority.
Q: What if the public authority was the city mayor who
was inside his office. Suddenly he heard commotion on
the ground floor. He looked out his window, he saw his
two supporters having an argument. A and B were
having an argument over a parking space. The mayor
went down the building and talked to both A and B. He
told them to shake hands and forget everything. Then
he told A to just allow B to park his car anyway there
was another parking space available. This angered A
because he thought that the mayor was siding with B. A
took out his balisong and stabbed the mayor. Is the
aggravating circumstance of in contempt of or with
insult to public authority present?
A: It is present, but it is not an aggravating circumstance but
an element of the crime because the crime committed is
direct assault. It is direct assault because the public
authority at the time of the attack was engaged in the
performance of his functions. Since the crime committed
was against the public authority himself, the fact that it was
committed in contempt of or with insult to the said public
authority is an ingredient of the crime.
Q: What if in the same problem instead of stabbing the
said mayor, A felt insulted with the mayor’s words that
he is giving the parking space to B so this angered A. A
stabbed B. B died. Is the aggravating circumstance of in
contempt of or with insult to public authority present?
A: This time, it is present. The mayor’s act of pacifying A and
B was engaged in his official functions. He was not the
person against whom the crime was committed. A was a
supporter, therefore he knew mayor was a person in
authority. Yet, the presence of the mayor did not prevent A
from committing the crime against B. Hence, the second
aggravating circumstance is present.
III. That the act be committed with insult or in
disregard of the respect due to the offended party on
account of his rank, age or sex, or it be committed in
the dwelling of the offended party, if the latter has not
given provocation.
There are four aggravating circumstances under this
paragraph:
1. Disregard of rank
2. Disregard of age
3. Disregard of sex
4. Crimes committed in dwelling of the offended
party
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These four aggravating circumstances can be appreciated
singly or collectively if present in the commission of the
crime.
Disregard of rank, disregard of age and disregard of sex can
only be considered in crimes against persons, those under
Title 8 (Homicide, Murder, Physical Injuries) and in crimes
against honor, those under Title 13 (Libel, Oral Defamation,
Slander by Deed). This is not considered in crimes against
property, in crimes against public interest, in crimes against
public order.
Disregard of rank
Rank refers to a high social standing, a high position in the
society. For this to be considered as an aggravating
circumstance, it is necessary that the offender be of lower
rank than that of the offended party.
If there is evidence that the said offender has disregarded
or disrespected the high social standing of the victim in
society.
Examples:
1. A student attacking a professor. There was a
disregard of rank of the said professor.
2. An employee attacking his employer. There was a
disregard of rank of the said employer.
Disregard of age
When in the commission of the crime, the offender
disrespected or disregarded the minor age or the senior age
of the victim.
Examples:
1. The offended party is 95 years old. A killed him by
hitting his head for 25 times with a lead pipe.
Obviously, there was disregard of his age.
Considering his age, whereas even one hit of the
lead pipe could have already killed the said old man
but he was hit 25 times showing disregard of the
age of the old man.
2. What if a child is 4 years old. He was stabbed 25
times, thereafter his body was placed inside a dram
filled with water and then the dram was covered.
There was disregard of age. The victim was a minor
and therefore any attack, just 1 stab, could have
killed the minor. But he was stabbed 25 times; not
only that, he was also submerged and the drum was
covered, which shows disrespect of age.
If there was disrespect of age and there was also treachery,
the aggravating circumstance to be considered is treachery
because it absorbs disrespect of age.
Criminal Law Review
Prosecutor Victoria C. Garcia
Disregard of sex
When in the commission of the crime, the offender
disregarded or disrespected the womanhood of his victim.
Disrespect of sex refers to the female sex. This is inherent in
the crime of rape and in certain crimes involving chastity.
Crimes committed in dwelling of the offended party
• Dwelling is considered as aggravating
circumstance if the crime is committed inside the
dwelling of the offended party, that is, the offended
party was inside his dwelling at the time of the
commission of the crime and he has not given any
provocation.
• If the crime is committed inside the dwelling of the
offended party, it is as an aggravating circumstance
because it shows the greater perversity of the
offender than when the crime is committed in any
other place. It is because the constitution itself
provides that a man’s abode
Reason is: It reveals the offender’s greater criminality. He
violated the enshrined right in the Constitution which is the
right to privacy of one’s abode.
Instances where in even if a crime is committed inside
the dwelling of the victim, dwelling will not be
considered as an aggravating circumstance:
1. if the offended has given provocation
2. if the offender and the offended party are living in
the same dwelling
3. when dwelling is inherent in the commission of the
crime.
So in these three instances, even if the crime is committed
inside the dwelling of the offended party, dwelling is not
considered as an aggravating circumstance.
Dwelling refers to any building or structure which is used
for rest or comfort, it also includes:
The dependencies attached, the staircase, and the
enclosures therein.
For dwelling to be considered, ownership is immaterial. It
suffices that the offended party uses the said dwelling for
his rest and comfort. He may be a mere tenant, lessee, bed
spacer, for as long as he uses the said place for his rest and
comfort, that is considered as his dwelling.
Q: X and Y were having a drinking spree. Adjacent to the
store where they were having their drinking spree, was
the house of X. They were happy when suddenly, as they
were discussing, they were now having an argument.
Later, it turned into a heated altercation and then to a
fight. They were already rolling on the ground, boxing
and kicking one another. X left the fight and ran as fast
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as he could inside his house. He was already wounded.
He locked the gate and closed the door of the house but
he failed to lock it. He was going upstairs when
suddenly, here comes Y. Y jumped into his fence and
opened his door and barged inside. Upon seeing X going
upstairs, Y followed X and then thereafter, stabbed X. X
fell from the topmost portion of his house down to the
ground and X died. Prosecuted for Homicide, it was
alleged in the Information that the said act of killing
was attended by the aggravating circumstance of
dwelling. Is dwelling present in the commission of the
crime?
A: Dwelling is present in the commission of the crime. It will
be considered as an aggravating circumstance. The moment
X left the fight and hide inside his house, he went there
inside the house for protection. He believes that once he is
inside his house, he will be protected and safe. Y shouldn’t
have followed. When Y followed X and then thereafter killed
X inside his house, he violated the privacy of X’s abode, a
place where X felt protected and safe, was the place where
he was stabbed to death.
Q: In the same problem. X was wounded and
immediately ran inside his house, X left the gate open
and the door of his house open. He went to his kitchen
and took a sharp bolo and then he went at the doorstep
of the house and he called on Y “Hey Y, are you still
there? If you are really brave, come let us settle the
matter inside my house. I am challenging you to come
inside my house.” Unknown to Y, X was at that time
holding the sharp bolo that he took to the kitchen and
then X went behind the door. X’s intention was to hack
Y the moment Y enter his house. However, when Y
entered the house of X, accepting the challenge. He was
armed with a knife and Y was quick enough to stab X
before X was able to hack Y. Hence, X was stabbed and
killed in his own house. Prosecuted for Homicide, is the
aggravating circumstance of Dwelling present?
A: The aggravating circumstance of Dwelling is not present.
Because there was provocation coming from the said victim,
he was the one who invited, who induced, who provoked Y.
“Come and get me if you are really brave enough.” Therefore,
since the provocation came X, he does not deserve the
respect due him on his dwelling.
Q: X, a barangay tanod while he was inside his house
was talking with the Barangay Chairman. They were
discussing ways and means on how to implement the
curfew. While they were discussing, here comes Y, the
landlord of X. X was living in an apartment, he was
renting it from Y. The landlord told X “You have not been
paying your rent. It has been 3 months. You pay me now,
otherwise, you have to leave my place.” But X said “I have
no money, I am sorry.” The Barangay Chairman placed
his hand on the shoulder of the Landlord Y and told him
“Pare, pagpasensyahan mon a muna, ikaw may pera ka,
eto talaga si Barangay Tanod ko wala talagang pera.”
However, the landlord brushed aside the hands of the
Criminal Law Review
Prosecutor Victoria C. Garcia
Chairman and told him “Wag ka makialam dito,
Chairman.” And then he asked X, “Are you going to pay
or not?” And X said he has no money. Y pulled a knife
and thereafter stabbed X right in front of the chairman.
X was brought to the hospital. Y was arrested. X
sustained a fatal wound but he survived. The landlord
is now being prosecuted for Frustrated Homicide. It
was alleged in the Information that the crime was
attended by the aggravating circumstance of with
contempt or in insult of public authorities and dwelling.
Is it present in the commission of the crime?
A: With contempt of or in insult of public authorities is
present in the commission of the crime.
First element, a public authority – the Barangay Chairman
was talking about how to implement the curfew. Hence,
they were performing their duties.
Second, he was not the person to whom the crime was
committed. Despite his presence, Y still stabbed the victim.
As to the aggravating circumstance of Dwelling, it is also
present. Although X was only renting the place and it was
actually owned by the accused landlord, still the place is
used by X for his rest and comfort. Therefore, it will be
considered as an aggravating circumstance.
Q: X was running for the mayoralty candidacy for the
forthcoming election. So as early as now, he and his
advisers were already planning on the best tactics on
how to win the election. Because based on the latest
survey conducted, he was lagging behind to the
incumbent mayor. They were in the terrace of the
house. X stood up with a cup of coffee and he roamed
around thinking of the best tactics when suddenly, X fell
on the floor. There was a gunshot wound on his head.
He died instantly. The assailant was W. W was arrested.
In the commission of the crime, is the aggravating
circumstance of dwelling present?
A: Dwelling is attendant. The law does not require that the
assailant or the perpetrator of the crime must’ve entered
the dwelling of the victim. It suffices that the victim was
inside the dwelling when the crime was committed. The
assailant or the perpetrator may have devised ways and
means to commit the crime from the outside. There was still
disrespect of privacy of one’s abode because the victim was
inside his dwelling when he was killed.
Q: X was a helper in the house of the master Y and Z. X
has been a house boy for more than a year, he occupies
the room near the kitchen. The master’s bedroom was
in the second floor of the house. One Sunday afternoon,
while X was washing the dishes, he realized that the
husband and children were out and that only him and
the wife was there. So, he immediately went upstairs
and there he saw the wife trying to fix some things on
the bed. Suddenly, X covered the mouth of the woman
and boxed her stomach, pinned her down and by means
of force and violence, X had carnal knowledge of the
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wife of the master. Thereafter, the said wife filed a case
of rape against X. In the Information, it was alleged that
in the commission of the crime of rape, the aggravating
circumstances of Dwelling and Abuse of Confidence are
present. Are they present?
A: Dwelling is not present. Reason is: Both X as well as the
master’s wife occupy the said dwelling. Although, he is only
there as a house boy. Still, he was occupying the said
dwelling with his room near the kitchen of the house.
Therefore, it cannot be said that when he committed the
crime, he disrecpected the dwelling of the victim.
As to the Abuse of Confidence, there was Abuse of
Confidence. X has been a houseboy for more than a year, he
was trusted by Y and Z. Nevertheless, he abused the
confidence reposed in him and such abuse of trust and
confidence facilitated the commission of the crime. Had he
not been trusted by Y and Z, he would’ve not been left alone
with the wife. The said abuse of confidence facilitated the
commission of the act of rape. Therefore, Abuse of
Confidence was attendant.
Q: What if A who lives in a nipa hut was sitting at the
staircase when B came and forcibly drag her to another
house, 1 kilometer away from A’s house, where she was
raped by B. Is the aggravating circumstance of dwelling
present?
A: The aggravating circumstance is present even if the crime
was committed in another place far from the dwelling, the
aggression started in the dwelling of the offended party. The
aggression that started in the dwelling of the offended party
when she was dragged from the said staircase, that
aggression cannot be divided from the commission of said
crim. So even if it grounds were consummated in another
place for as long as aggression started in the dwelling, still
dwelling is an aggravating circumstance.
Q: What if husband and wife were already about to
sleep, then they heard someone calling the name of the
husband outside the house. The husband rose from the
bed and looked out the window to see who was calling
him. Upon looking at the window suddenly there were
gun fires. The husband fell lifeless. The wife, also went
to the window and looked out to see who killed her
husband. She was also fired at. Is the aggravating
circumstance of dwelling present?
A: Yes, dwelling is an aggravating circumstance. It is not
necessary for dwelling to be aggravating that the
perpetrator of the crime was able to get in. It suffices that
the offended party or the victim is inside his house. The
assailant may device ways and means to commit the crime
from the outside.
Q: What if there was this woman. She is 95 years old; a
woman of high standing in the society. She was a former
department secretary. She is living alone in her house.
One time here comes X. X wanted to rob the valuables
inside the house of the said old woman. X entered the
Criminal Law Review
Prosecutor Victoria C. Garcia
said house and he was able to get the valuables from the
vault of the house. He was about to leave the house
when accidentally pushed the chair. By reason thereof,
the woman was awaken. The woman upon seeing X
begun screaming. X then fired at the woman 50 times.
The woman died. Are the aggravating circumstances of
disregard of rank, disregard of age, disregard of sex and
dwelling present?
A: The first three circumstances are not present because the
crime committed is robbery with homicide, under article 10
which is a crime against property. Disregard of rank, age
and sex are not applicable to any other crimes but only to
crimes against person and crimes against chastity. Since the
crime committed is a crime against property, therefore,
disregard of rank, age and sex cannot be considered against
the accused.
Dwelling can be considered against the accused because the
crime committed robbery with homicide is a form of
robbery with violence against or intimidation of persons.
Dwelling is only inherent in robbery with use of force upon
things, but dwelling is not inherent in case of robbery with
violence against or intimidation of persons just like robbery
with homicide. So, in this case, only dwelling should be
considered as an aggravating circumstance.
IV. That the act be committed with abuse of
confidence or obvious ungratefulness.
There are two aggravating circumstances:
1. Abuse of confidence
2. Obvious ungratefulness
ABUSE OF CONFIDENCE
Elements:
1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a
crime against the offended party;
3. That the abuse of confidence facilitated the
commission of the crime
Q: A and B have been living here in Manila for 4 years.
Suddenly here comes X. X was there former neighbor in
Batangas. He told A and B “I am looking for work here
in Manila, can I live in your house while I am looking for
work?” Since he was a good neighbor back then A and B
trusted X and allowed X to live inside their house. X now
sleeps in the house of A and B while he was looking for
work here in manila. One time A and B were out of the
house in their respective works. The only person left in
the house was X and their daughter who was only 9
years old. While the couple were out, X molested and
raped the said daughter. Is the aggravating
circumstance abuse of confidence present in this case?
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A: Yes, it is present. X was there because A and B trusted
him, yet he abused such trust and confidence and instead
facilitated the commission of the crime. Therefore, this
aggravating circumstance is present.
OBVIOUS UNGRATEFULNESS
When the offender is not being grateful for what had been
done for him by the victim.
For this aggravating circumstance to be considered, the
ungratefulness must be obvious. It must be apparent.
Elements:
1. That the offended party had trusted the offender;
2. That the offender abuse such trust by committing a
crime against the offended party;
3. That the act be committed with obvious
ungratefulness
Q: A was selling kettles and other kitchenwares on the
street under the heat of the sun. A goes from one house
to another under the heat of the sun. He was so thirsty
already so he knocked on the gate of the house of X. X
opened the gate and A told X that he was so thirsty. X
being a good person, allowed A to go inside their house
and asked him to take a sit while he get him a glass of
water. When he came back, he was not only holding a
glass of water but also brought some biscuits. However
A suddenly, brought out his knife and stabbed X and
thereafter robbed him. Is the aggravating circumstance
obvious ungratefulness present?
A: Yes. Instead of showing gratitude for having been
allowed to enter the house and given a glass of water with
biscuits, he instead took advantage of the goodness of the
man and committed the crime of killing and robbery. There
was obvious ungratefulness on the part of the offender.
V. That the crime be committed in the palace of the
Chief Executive, or in his presence, or where public
authorities are engaged in the discharge of their
duties or in a place dedicated to religious worship.
These are all places that needs to be respected but the
offender committed the crime in these places. He
disrespected the said places. Therefore, it reveals his
greater criminality in the commission of the crime. Hence, it
will result in the increase of the imposable penalty.
1. In the palace of the Chief Executive
Regardless of a political or social function or any affair
inside the Malacanang, if the crime is committed there, it
will be an aggravating circumstance.
Criminal Law Review
Prosecutor Victoria C. Garcia
In order however for these aggravating circumstances to be
considered, it is necessary that the offender deliberately
sought the said place to commit the crime because
otherwise it cannot be said that he disrespected the place.
2. In the presence of the Chief Executive
Even if the Chief Executive is doing an act in his private
capacity, it will always be an aggravating circumstance for
the lack of respect to the chief executive.
3. Where the Public Authorities are engaged in
the discharge of their duties
It is necessary that at the time of the commission of the
crime, the public authorities are actually discharging there
duties. Therefore, it will not suffice that it is a public office.
It is also an additional requirement that at the time of the
commission of the crime, these public authorities are
performing their public functions to show disrespect of
lawful authority.
4. In a place dedicated to religious worship
If a crime is committed in a place dedicated to religious
worship, it is always an aggravating circumstance. It is
immaterial whether there is a religious ceremony or a
religious function on going. It suffices that the place is one
dedicated for religious worship, it reveals the offender’s
greater criminality in committing the crime.
Q: A friend of the president died. The president went to
the wake of his friend with his guards and PSG. While he
was looking at the coffin, here comes the eldest sister of
the deceased by the name of “X”. The eldest sister was
talking to the president, they were exchanging stories
when suddenly here comes the youngest sister with the
name of “Y”. While X was talking with President
Duterte, Y suddenly pulled the hair of her sister X. Her
sister X looked at Y and said “Stop, I am talking to the
President.” But Y, still pulled the hair. X can no longer
contained herself and slapped her younger sister Y. Y
retaliated and she slap X. Both of them were now
fighting each other, right in front of the President. They
were only stopped by the 2 members of the PSG. The
next day, the eldest sister filed a case of Physical
Injuries against her sister Y. Is the aggravating
circumstance that the crime was committed in the
presence of the Chief Executive present?
A: Yes, it is present. Even if the president while attending
the said wake of his friend was acting in his private capacity
and not on his official capacity, he, being the
president/Chief Executive, deserves to be respected. They
could’ve committed the crime later, they could have had
that argument/fight later while in front of the president,
they were disrespect on the president.
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Q: X was chasing Y, they were in a fight. However, Y ran
away and entered a church. In the said church, there
was no mass or religious ceremony, only one door was
opened. X followed and thereafter, stabbed Y inside. In
the commission of the crime, is the aggravating
circumstance of committing a crime in a place
dedicated for religious worship present?
A: Yes, it is present. X showed disrespect in the said place. X
should’ve waited for Y outside if he really wanted to do a
crime against Y. When he entered the church to commit the
crime, it shows disrespect to this religious place. Therefore,
it will be considered as an aggravating circumstance.
Q: A and B are chefs in Malacanang. They are outdoing
each other in trying to prepare the best meal for P-noy.
One time, both of them were preparing lunch for the
president. Suddenly they had an argument. In the
course thereof, A stabbed B. B suffered a fatal wound
but he survived. Prosecuted for frustrated homicide. Is
the aggravating circumstance that the crime was
committed in the palace of the Chief Executive present?
A: No, it is not present. Because he works there, he lives
there. It cannot be said that he sought the said place in order
to commit the crime. It cannot be said that he went to said
place in order to commit the crime or can it be said that he
disrespected the said place.
Q: What if many farmers were having a rally outside the
DAR. They started the rally around 6am, it is now 8pm,
they were still there. The officials and employees had
already left, so the farmers were there still having their
rally. They set tents and prepared to sleep there. In the
course thereof, 2 farmers argued at each other. In the
course of their argument one farmer jumped into the
fence and went inside the DAR. The second farmer
followed him and when the second farmer was able to
catch up with the first farmer, he killed the latter. Is the
aggravating circumstance that the crime was
committed in a place where the Public Authorities are
engaged in the discharge of their duties present?
A: No, it is not present. Although DAR is a place where the
Public Authorities are engaged in the discharge of their
duties, at the time of the commission of the crime, the
officials and employees are not in the actual performance of
their duties. Under this aggravating circumstance, it is not
only necessary that the said places are where public
authorities are engaged in the discharge of their duties, It is
also necessary that at the time of the commission of the
crime, the public authorities are actually engaged in the
performance of their duties.
Criminal Law Review
Prosecutor Victoria C. Garcia
VI. That the crime be committed at the nighttime or in
an uninhabited place, or by a band, whenever such
circumstances may facilitate the commission of the
crime.
Whenever more than three armed malefactors shall
have acted together in the commission of the offense,
it shall be deemed to have been committed by a band.
There are three aggravating circumstances:
1. NIGHTTIME
• from sunset to sunrise
The offender deliberately sought the cover of darkness
either to facilitate the commission of the crime, that is to
insure the commission of the crime or to insure or afford
impunity. OR because of the darkness of the night, no one
will be able to recognize him.
However, the moment there is any light that could
illuminate the place of the scene of the crime, even if the
offender deliberately sought the cover of darkness, it will
not be considered as an aggravating circumstance.
In the case of People vs. Sibbu, nighttime was not
considered because the place was illuminated by Christmas
lights. Therefore, any light illuminating the scene of the
crime, nighttime is no longer considered as an aggravating
circumstance.
Q: In the commission of the crime, A decided to kill B,
his enemy. A knew that B would pass by the place
wherein there were no light posts. A waited for B in the
said place. Upon the moment B arrived A left his post
and was about to stab B when suddenly a tricycle
passed by and the light coming from the tricycle
illuminated the scene of the crime. Even if A
deliberately sought nighttime, nighttime is not
aggravating because a light illuminated the scene of the
crime. Whenever any light has illuminated the scene of
the crime, rule out nighttime as an aggravating
circumstance.
A: light coming from the tricycle, from any vehicle, nearby
house, light posts or even from the moon, for as long as the
scene of the crime has been illuminated, nighttime is not
aggravating.
2. AN UNINHABITED PLACE
• Means a place which is far from town, far from
other houses.
Requisites:
1. That the place where the crime is committed, there
is little or remote of possibility for the victim to
receive some help.
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2. The Offender deliberately sought and took
advantage of the uninhabited place in order to
insure the commission of the crime.
Q: A, B and C are fishermen. Around 3 am, they all went
out fishing on their respective boats. They were sailing
5 meters away from each other. Suddenly X sprung out
of the water and he stabbed A. In the prosecution for
killing of A, is the aggravating circumstance of
uninhabited place present?
A: Yes, it is present. First, in the place where the crime was
committed, there was very little, remote possibility for A to
receive some help. Because B and C must still swim before
they could render help or assistance to A. Before they could
have swum and reached A, A is already dead. Therefore
there was very litter or remote possibility for the victim to
be saved. The said accused X deliberately sought the place
in order to facilitate in the commission of the crime because
he suddenly appeared from the water. Therefore the
aggravating circumstance of uninhabited place is present.
3. BY A BAND
• When more than three (at least four) armed
malefactors should have acted (all) together in
the commission of the crime.
Q: A, B, C, D, and E were having a drinking spree in a
store. From the said store, they could see in a distance,
a very big house. They said that they are going to rob
the house, they will wait for nighttime in order to rob
the house. That was 3 o clock, they drank. At about 7 o
clock, here comes A, B,C, D, and E. A knocked at the gate.
The gardener opened the gate and thereafter, A pointed
a knife at the gardener. They barged inside the house.
They knocked at the door, when the house maid opened
the door, D pointed a knife in the said housemaid. Both
the gardener and the maid was tied inside the house. A,
B, C, D and E were all armed with knives. While the
gardener and maid were tied, A, B, and C told D and E
that they are going upstairs to ransack the house of
anything that they can get that they will divide amongst
themselves. So A, B and C went upstairs. D and E were
left with the gardener and the maid. D and E untied the
housemaid and brought her inside the bathroom and
there, they had carnal knowledge of the housemaid by
using force and violence. Thereafter, they brought back
the housemaid and tied here again. Here comes, A, B,
and C from the upstairs, they now have a big bag. They
told D and E “Let’s go, we have enough to be divided.” And
so, they all left. They were arrested and they were
charged with the Special Complex Crime of Robbery
with Rape.
First Question. Would conspiracy lie for all of them for
the said Special Complex Crime of Robbery with Rape?
A: There is conspiracy only insofar as D and E are
concerned. Therefore, D and E can be criminally liable as
conspirators for the Special Complex Crime of Robbery with
Criminal Law Review
Prosecutor Victoria C. Garcia
Rape. However, in sofar as A, B and C are concerned, they
cannot be held liable for the Special Complex Crime of
Robbery with Rape. Reason is: at the time the rape was
committed by D and E, they were not present and given an
opportunity to prevent the consummation of the act of rape.
The crime agreed upon was only to rob the house but D and
E also committed rape. At the time of the commission of the
rape, A B and C were not present. They have no knowledge
of its commission. Their liability will only be for robbery.
Second Question. In the commission of the crime, are
the aggravating circumstance of nighttime, uninhabited
place, by a band and dwelling attendant?
A: Nighttime is not present. Although they sought the cover
of nighttime, although they waited for nighttime, the fact
that they were able to enter the house. It is obvious from the
facts of the problem, that the house is well-lighted. That
there was light inside the house. They went upstairs, they
brought the maid to the bathroom, it was obvious that the
house was lighted.
Uninhabited place is also not attendant. They did not
deliberately seek the said place in order to ensure the
commission of the crime. While they were drinking, they
just saw the house. “Oh, that’s a big house, let us rob the
house.” They did not deliberately sought it in order to
ensure the commission of the crime.
By a Band is present. They were five armed malefactors
who have acted together in the commission of the crime of
Robbery.
Dwelling is an aggravating circumstance. Dwelling is only
inherent if the crime committed is robbery by use of force
upon things under Art. 299 but if the crime committed is
robbery with violence and intimidation of persons, as in this
case, dwelling is not inherent in the commission of the
crime. This falls under Art. 294. They were able to gain entry
by intimidating the housemaid and the gardener by
pointing a knife, there was intimidation.
Q: A, B, C, D and E all armed with knives, killed X. The
information stated that A, B, C, D and E conspired with
one another and as a band they committed the crime of
murder against X. during the presentation of evidence,
conspiracy was proven beyond reasonable doubt.
Likewise, band as an aggravating circumstance was
proven beyond reasonable doubt. Thus the judge
convicted A, B, C, D and E for the crime of murder as
conspirators. The judge also considered the
aggravating circumstance of by a band. The counsel for
the accused filed a motion for the consideration,
questioning the consideration of the aggravating
circumstance of by a band. According to the counsel,
conspiracy has already been considered therefore by a
band can no longer be considered by the court. Is the
counsel’s contention correct?
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A: No, the counsel’s contention is wrong. Even if the court
already considered conspiracy, by a band may still be
considered by the court because conspiracy is a means of
committing a crime. It means they have the same criminal
liability. On the other hand, by a band is an aggravating
circumstance. One does not absorb the other, therefore,
both maybe considered and appreciated by the court.
VII. That the crime be committed on the occasion of a
conflagration, shipwreck, earthquake, epidemic, or
other calamity or misfortune.
If the crime is committed in the occasion of any of these
calamities or misfortunes, it shows the greater criminality
on the part of the offender. In times of calamities, they ought
to help one another but here comes the offender, taking
advantage of the said calamity/misfortune and committed
the crime.
The mere fact that the offender the crime on the occasion of
these calamities, it will already be an aggravating
circumstance and note, if the crime committed is that of a
killing of a person, it is a qualifying aggravating
circumstance. Because par.(7) of Art. 14 is included under
Art. 248 as a qualifying aggravating circumstances for
murder.
Q: There was an earthquake. Everybody was getting out
of the house to save their lives. X saw his neighbor, his
enemy. X holding a knife, deliberately met the neighbor
and thereafter stabbed the neighbor.
A: Here the 7th aggravating circumstance that the crime is
committed on the occasion of a calamity attended the
commission of the crime and it is a qualifying aggravating
circumstance. Therefore, it is murder.
Q; There was this big fire, that a number of houses in the
barangay were gutted with fire, the house of X was
among those affected by this big fire. While X was busy
getting his things out of said house, and so Y wanted to
take a revenge because he has grudge against X, went to
the said place and pretending to be helping, went near
X, and X who is already an old man, Y repeatedly
stabbed X. Thereafter Y took all the things inside the
house. Y was charged of robbery with homicide. Is the
charge correct?
A: The charge is wrong. It is not robbery with homicide
because the criminal intent of Y was to take a revenge on X,
to kill X. So the appropriate charge Murder and Theft. Two
crimes must be charge.
Q: What aggravating circumstances attended the
commission of the crime?
A: First, on the occasion of a big fire, which is a qualifying
aggravating circumstance. If you would look at Art.248, if
crime of killing a person is committed under any of these
occasions, it will qualify the crime of Homicide to Murder,
Criminal Law Review
Prosecutor Victoria C. Garcia
and the penalty would be Reclusion Perpetua. The fact that
the killing took place on the occasion of the said fire then
the crime would be considered as Murder.
Crime is committed inside dwelling of the offended party
while he was busy saving all his things. Although it is being
gutted with fire, it is still the dwelling, the place of comfort
and rest of X.
No disregard of age, there was no showing of disrespect of
age. Although Y repeatedly stabbed X, there was no showing
that Y disregarded/disrespected or intended to
disregard/disrespect the age of X, because the intent was to
take a revenge against X.
So, two aggravating circumstances are present, one is on the
occasion of fire and the other, that dwelling is present in the
commission of the crime.
Q: X went to the house of A and B, and X asked A & B if
he could occupy one of the room inside said house. A
and B obliged and so X is now occupying one of the
rooms inside the said house of A and B. Two days
thereafter, when X was living in the said house, the
husband went to work, and the wife was the only one
left in the house. When X learned that it was only the
wife who was inside the house, X got out of his room and
went to the bedroom of the wife and against the will of
the wife he had carnal knowledge. So a crime of Rape
was filed against X. In the information it was alleged
that dwelling attended the commission of the crime,
likewise there was disregard of sex and likewise it was
stated that there was abuse of confidence. Are these
aggravating circumstances alleged in the information
to be considered by the court?
A: Dwelling cannot be appreciated as aggravating
circumstance because both of them are living in the same
house. Even if X was only renting the said place still it cannot
be said that when X committed the crime of Rape, he
disregarded dwelling. So dwelling cannot be considered an
aggravating circumstance.
No disregard of sex because it is inherent or an element in
the commission of the crime of Rape. You no longer
consider it so as to increase the imposable penalty because
it is an element of the crime of Rape by carnal knowledge,
the Rape here is by carnal knowledge not Rape by Sexual
Assault.
There is generic circumstance of Abuse of Confidence. All
the elements of abuse of confidence are present. The
offended party has trusted the offender, the spouses A and
B trusted X, they agreed for X to stay inside their house. The
offender abused the trust and confidence and said abuse of
trust and confidence facilitated the commission of the
crime. Were it not for the trust reposed by the spouses, X
would not have committed the crime. Therefore, the Abuse
of Confidence must be appreciated.
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Q: Lessor-Y went to the unit being rented by the lessee- Elements:

X to ask the latter to pay rent because the lessee haven't
paid rent for three months already. X happened to be an 1. That the offender is on trial for one crime;
old man. When X still didn't pay the rent, Y attacked X, 2. That at the time of said trial, he was previously
Y hacked and hacked X. When X, the said old man, 85yrs convicted by final judgment of another crime;
old, was already lying on the floor still Y repeatedly and 3. That both the first and second offenses are
continuously hacked X. What aggravating embraced in the same title of the code;
circumstances attended the commission of the crime? 4. That the offender is convicted of the second offense
A: The first aggravating circumstance that attended the charged.
commission of the crime is dwelling. There is dwelling in It is necessary that he is facing a trial.
the commission of the crime because it was committed in
the unit being rented by X even if Y is the owner, still it is It is necessary that he is convicted by final judgment of a
the dwelling of X because he is renting the said place from first crime. It must be by final judgment.
the owner.
It is necessary also that it is in the second crime or in the
Disregard of Age, X was already lying on the floor yet Y still new conviction, that the judge will apply recidivism as an
repeatedly hacked X. An 85 year old lying cold feet on the aggravating circumstance.
ground then there was obviously disregard of the age of the
victim in the commission of the crime. Recidivism is a mere generic aggravating circumstance. It
applies to all kinds of crimes. There must be at least two
VIII. That the crime be committed with the aid of convictions. The first conviction on the first crime
armed men or persons who insure or afford impunity. committed must be a conviction by final judgment. The
second conviction must be for the new crime in which he is
It means that the act of perpetrator of the crime was on trial. It is not a conviction by final judgment because it is
assisted, was aided, was helped by armed persons. on this second conviction wherein the judge will appreciate
Therefore, the armed persons participation may be direct recidivism as an aggravating circumstance.
or indirect. They are mere accomplices as opposed to a
band. In case of a band, all the armed men participated in Q: X was charged with the crime of estafa. It is a bailable
the commission of the crime. They acted together in the offense so he posted bail. After posting the bail bond, he
commission of the crime in case of a band. is now on temporary liberty. Months later, once his case
for estafa was ongoing trial, he was on dire need of
AID OF ARMED MEN DISTINGUISHED FROM BY A BAND money. He chanced upon the bag of the neighbor on the
terrace of the house, he jumped over the fence, took the
AID OF ARMED MEN BY A BAND money inside the bag. He took P2,000 from the said bag
There is no requisite as to The law requires a number of the neighbor. He is now being charged with the crime
the number of armed men of persons, that is, at least of simple theft before the MTC. Since it is within the
who aided the actual 4 armed malefactors. coverage of the Rules of Summary Procedure, for 8
perpetrator of the crime. months of continuous trial, here comes the MTC judge
It is not necessary that the It is necessary that the convicting X of Simple Theft. In imposing the penalty for
armed men acted together armed men must have simple theft, can the judge consider the aggravating
in the commission of the acted together in the actual circumstance of recidivism?
crime because the armed commission of the crime. A: First element, that the offender is on trial for one crime;
men merely aided the
actual perpetrator of the He is in trial for the crime of simple theft.
crime and their
participation may either be Second element, That at the time of said trial, he was
a direct or indirect previously convicted by final judgment of another crime;
participation in the
commission of the crime. At the time that he is being tried for simple theft, he is not
yet convicted by final judgment of the crime of estafa
because he merely posted bail. Trial is still ongoing.
IX. That the accused is a recidivist.
Therefore, the second element is immediately absent.
Hence, in imposing the penalty for simple theft, the judge
A recidivist is one whom at the time of his trial for one
cannot consider the aggravating circumstance of
crime, shall have previously been convicted by final
recidivism.
judgment of another crime embraced in the same title
of this Code.
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Q: X was charged and convicted of the crime of Murder.
The conviction became final and executory, he did not
appeal. He is now serving sentence in the New Bilibid
Prison in Muntinlupa. His father happens to be the head
of PDP Laban, the political party of the president.
President Duterte granted pardon on X. After the said
grant of Pardon, X was released for the crime of Murder.
He was now out. To ensure that his son will be having a
good life, his father, the head of the political party,
would always have his son escort him. Until one time,
when they were eating in a restaurant, X had an
argument with the waiter and he stabbed the waiter.
The waiter died. X is now being prosecuted for the
crime of homicide. The judge found him guilty after
trial on the merits. In imposing the penalty for
homicide, can the judge consider the aggravating
circumstance of recidivism?
A: First element, that the offender is on trial for one crime;
He is on trial for one crime which is homicide.
Second element, That at the time of said trial, he was
previously convicted by final judgment of another crime;
At the time of the said trial, he has been convicted by final
judgment of the crime of Murder. Even if he was granted
pardon by the president, the final conviction for murder
stays because pardon’s effect is only to excuse the convict
from service of sentence but it does not erase the effects of
the judgment. He remains to be a convict convicted by final
judgment. Therefore, the second element is present.
Third element, That both the first and second offenses are
embraced in the same title of the code;
Both Murder and Homicide are embraced in Title 8, Crimes
against Person.
Last element, That the offender is convicted of the second
offense charged.
He is also convicted of Homicide. Therefore, all the elements
are present. In imposing the penalty for Homicide, the judge
can consider the aggravating circumstance of recidivism.
Q: How do you prove Recidivism?
A: The State through the Public Prosecutor must present the
conviction by final judgment of the first crime. A mere
certification coming from the court of the said conviction for
the first crime must be presented before the court hearing
the second crime. A mere certification will suffice because it
is a public document.
Q: A has been convicted of the crime of attempted
homicide. The judge found him guilty beyond
reasonable doubt, therefore, he was convicted. The
judgment became final and executory; therefore he was
behind bars. He served out his sentence. Once out of
Criminal Law Review
Prosecutor Victoria C. Garcia
prison cell, he lived a good life. However, after 25 years,
he engaged in a fight and killed the other man. By
reasonable doubt he was charged with and convicted of
the crime of murder. Can the judge consider recidivism
as an aggravating circumstance in imposing the penalty
for murder?
A: Yes, because both homicide and murder are embraced in
the same title of the code. The fact that 25 years had lapsed
from the time of the first crime to the second crime is
immaterial because recidivism is imprescriptible. There is
no time limit between the first crime for which he has been
convicted by final judgment and the second crime for which
he is also convicted.
X. That the offender has been previously punished for
an offense to which the law attaches an equal or
greater penalty or for two or more crimes to which it
attaches a lighter penalty.
This is otherwise known as “Reiteracion”
Elements:
1. That the accused is on trial for an offense;
2. That he previously served sentence for another
crime to which the law attaches an equal or greater
penalty or for two or more crimes to which it
attaches a lighter penalty;
3. That he is also convicted of the new offense.
The first element requires just like recidivism, the accused
is on trial for a new crime. It is also necessary that at the
time he is facing trial for the new crime, he has been
previously convicted and has served sentence for a former
crime that he has committed which carries a penalty equal
to or greater than that of this new crime.
If there are only two crimes committed, what the law
requires is that the first crime to which the accused has
served sentence must carry a penalty equal to or greater
than that of the new crime. It is the first crime that must
carry a penalty equal to or greater than that of the new
crime.
But if there are three crimes committed, what the law
requires is that the first two crimes of which he has served
sentence must carry lighter penalties than that of the new
crime.
Reiteracion is a generic aggravating circumstance, it
applies to all kinds of crimes. Just like recidivism,
reiteracion requires that there must be at least two
convictions. However, unlike recidivism wherein a
conviction by final judgment will suffice insofar as the first
crime, in reiteracion, what the law requires that the
offender has already been punished. The offender has
already served sentence for the first crime that he has
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committed. A mere conviction by final judgment will not
suffice.
Q: X was charged and thereafter is convicted of
attempted homicide. The METC charged found him
guilty of attempted homicide and imposed upon him
the penalty of prision correccional (6 months plus 1 day
to 6 years). There being no mitigating circumstance, the
judge imposed upon him the maximum penalty of 4
years. It is within the probationable penalty. What X did
is that after conviction, within the period for perfecting
an appeal, he filed an application for probation. The
judge granted the said application for probation.
Therefore, X is no longer serving the sentence, he is out
on probation. While he was out on probation, months
later, they have a new neighbor. The new neighbor
occupied a piece of their property in building their
fence. The fence was made from bamboo. X was very
mad. X took an axe and he axed and destroyed the said
fence built by the neighbor. The neighbor filed a case of
Malicious Mischief against X. After trial on the merits,
the judge found him guilty. In imposing the penalty of
Malicious Mischief, can the judge consider the
aggravating circumstance of reiteracion?
A: First element, That the accused is on trial for an offense;
He is on trial for Malicious Mischief.
Second Element, That he previously served sentence for
another crime to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a
lighter penalty;
X didn’t serve sentence because he applied for probation.
What is the effect of Probation? Probation suspends the
execution of the judgment. Probation is not equivalent to
service of sentence. Therefore, the second element is absent
because X has not served the sentence for the first crime
that he has been convicted.
Hence, reiteracion cannot be considered by the court as an
aggravating circumstance in imposing the penalty for
malicious mischief.
Q: X was charged and thereafter, convicted for
attempted homicide. There is no mitigating
circumstance and so the judge imposed upon him 4
years. He did not apply for probation. He served 4 years
behind bars. After release, he went home. He found this
newly built fence of the neighbor occupying a piece of
their property. He axed the fence. He is now being
prosecuted for malicious mischief. Because of the
damage, the penalty to be imposed on him would be
arresto mayor. In imposing the penalty for malicious
mischief, can the judge consider reiteracion?
A: First element, That the accused is on trial for an offense;
It is present.
Criminal Law Review
Prosecutor Victoria C. Garcia
Second Element, That he previously served sentence for
another crime to which the law attaches an equal or greater
penalty or for two or more crimes to which it attaches a
lighter penalty;
Attempted homicide has a greater penalty than that of
malicious mischief and he served the sentence.
Third element, That he is also convicted of the new offense.
He is also convicted of the new crime which is Malicious
Mischief. Therefore, in imposing the penalty for malicious
mischief, the judge can consider reiteracion as an
aggravating circumstance.
Q: X was convicted by the court of Slight Physical
Injuries. Since he voluntarily surrendered, the penalty
is arresto menor (1 to 30 days), the judge appreciated
the mitigating circumstance of voluntary surrender
and so the judge imposed upon him the penalty of 10
days. X served 10 days behind bars. After 10 days, X is
now out of prison. The moment he went home, they
were in need of money. He committed the crime of
Simple Theft. He is now being tried for Simple Theft.
After trial on the merits, the judge found him guilty and
the judge imposed prision correccional. In imposing the
penalty for simple theft, can the judge consider
reiteracion?
A: No, the judge cannot consider reiteracion because based
on the second element, if there are only two crimes
committed, what the law requires is that the first crime to
which he has served sentence carries a penalty equal to or
greater than the new crime. Here, the first crime which is
Slight Physical Injuries is lesser than that for Simple Theft.
Q: Let’s add facts. X served the sentence for Simple
Theft, 2 years was imposed on him. After 2 years behind
bars, X is now out on prison. He tried to lead a good life,
but the people in the neighborhood is bullying him,
mocking him saying that he is “labas pasok in the
kulungan”. One time, a neighbor mocked him, he was so
mad, he told the neighbor “You stop bullying me, if you
wouldn’t stop, I am going to kill you.” Because of that, the
neighbor filed a case of Grave Threats against X. He is
now on trial for the crime of Grave Threats. After trial,
the judge found him guilty. The penalty would be
arresto mayor. In imposing the penalty, can the judge
consider Reiteracion as an aggravating circumstance?
A: The judge cannot consider reiteracion as an aggravating
circumstance. Because what the law requires if there are
three crimes committed is that the first two crimes to which
he has served sentence must carry a penalty lighter than
that of the new crime. The first crime that he served which
is Slight Physical Injuries (Arresto Menor – 10 days) lighter
than that of Arresto Mayor for the new crime. But the
second crime is Simple Theft (2 years of prision
correctional) is higher than that of this new crime of Grave
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Threats. Therefore, Reiteracion cannot be considered by the crime. The law requires that if it is only one crime, it must
court. carry a penalty equal to or greater than the second crime he
committed.
RECIDIVISM V. REITERACION
Q: A slapped B. B filed a case for slight physical injuries
Recidivism Reiteracion against A. He was convicted and served out his sentence
It is only required that It is required that he has for slight physical injuries which is arresto menor. Once
there is a first conviction served out his sentence for out of prison, he was still mad at B. He deliberately
by final judgment. the previous crime that he caused damage to the property of B. B now filed a case
has committed. of malicious mischief against A. The judge found him
The law requires that the The crimes must not be guilty beyond reasonable doubt for malicious mischief.
two crimes be embraced in embraced in the same title Can the judge consider reiteracion as an aggravating
the same title of the Code. of the Code. circumstance?
A: No because slight physical injuries which carries with it
In one old case, the SC said that if the crimes are embraced the penalty of arresto menor is lighter than malicious
in the same title of the Code, reiteracion cannot be mischief which carries with it the penalty of arresto mayor.
considered although it is not expressly stated in Art. 14(10). Therefore, the judge cannot consider reiteracion as an
aggravating circumstance. He was convicted of malicious
Q: A has been convicted of the crime of homicide. mischief and placed behind bars.
Convicted by final judgment, he was placed behind bars.
He served out his sentence. Once out of prison, he Q: After service of sentence, he is now out of prison.
committed forcible abduction. Homicide is punished by Once out of prison, he was still mad at B. therefore he
reclusion temporal. Forcible abduction is now on trial. made sworn affidavits stating false statements against
The penalty prescribed by law for forcible abduction is B. B filed a case of perjury against A. he is now on trial
also reclusion temporal. The judge found him guilty for for the crime of perjury. The judge found him guilty
forcible abduction. Can the judge consider reiteracion beyond reasonable doubt. Can the judge consider
as an aggravating circumstance in imposing the penalty reiteracion as an aggravating circumstance?
for forcible abduction? A: Yes, because the first two crimes, the penalties of which
A: Yes because the penalty for the crime of homicide where were already served out, carry lighter penalties than the
he has already served out his sentence is equal to the third crime: slight physical injuries, arresto menor;
penalty for forcible abduction, both reclusion temporal. malicious mischief arresto mayor. Therefore, reiteracion
Therefore, reiteracion or habituality can be considered. can be considered.

Q: B committed forcible abduction. He was convicted by FOUR FORMS OF HABITUALITY:

final judgment. He served out his sentence. He is now
out of prison. Once out of prison, he committed 1. Recidivist
falsification of public document. He is on trial for the 2. Reiteracion
said falsification of public document. The judge found 3. Habitual Delinquency
him guilty beyond reasonable doubt. In imposing the 4. Quasi-recidivist
penalty for falsification of public document, can judge
consider reiteracion as an aggravating circumstance? RECIDIVISM V. QUASI-RECIDIVISM
A: Yes, because the penalty for forcible abduction is
reclusion temporal, which is higher than the penalty for Recidivism Quasi-recidivism
falsification of public document committed by a private There must be at least two There must be two
individual which is only prision correccional. Therefore, convictions convictions (first by final
reiteracion or habituality should be considered by the court judgment and second for
in imposing the penalty for falsification of public document. the second crime that he
has committed)
Q: B committed falsification of public document. It is necessary that the There is no such requisite,
Convicted, served out the sentence. After service of crimes are embraced in the the only requisite is that
sentence, he is out of prison, he engaged in a fight and same title of the Code the second crime
killed his opponent. His now on trial for homicide. The committed by the offender
judge found him guilty beyond reasonable doubt. Can must be a felony
the judge consider reiteracion as an aggravating
circumstance? Q: X committed robbery and he was convicted by final
A: No because the crime for which he has served out his judgment served out sentence and was released. Within
sentence carries a penalty lighter than that of the second six years from the date of his release he committed

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theft, prosecuted and convicted by final judgment 160 is a Special Aggravating Circumstance, the maximum
served out the sentence and was released. Within six penalty prescribed by law shall be imposed. He is both a
months he committed another crime of Theft, convicted recidivist and quasi-recidivist. Can you appreciate both?
by final judgment served out his sentence and released. A: No. You cannot appreciate both because they have
Within two months from the date of his release, he different effects. You better appreciate recidivism because
again committed a crime of Theft, so the judge found it can be offset by a mitigating circumstance.
him guilty beyond reasonable doubt of this Theft. In
imposing the penalty for this Theft, which of the four
forms of habituality as aggravating circumstances may
be considered by the court?
A: The court may consider both Recidivism and Habitual
Delinquency. X is a habitual delinquent, within 10 years
from the date of his last release or conviction of the crime of
theft, he committed another theft. He has been found guilty
three times of the crime of theft. Therefore, he is a Habitual
Delinquent.

He is also a Recidivist because he has been previously

convicted by final judgment of the crime of Theft, and
another crime of robbery which is embraced in the same
title of the code. Therefore, he is also a recidivist.

Both aggravating circumstances may be considered by the

court because they have different effects on the criminal
liability of the offender. The fact that he is a recidivist,
recidivism will be considered. If recidivism is not offset by
a mitigating circumstance it would mean the imposition of
the maximum period of penalty for the crime of theft. But
for being a Habitual delinquent an additional penalty will be
imposed. So both may be considered by the court in the
imposition of penalty.
Q: X committed homicide convicted by final judgment
he is now serving his sentence at the new bilibid prison.
He engaged in a fight, he inflicted serious physical
injuries on another inmate. So he is now prosecuted for
serious physical injuries. After trial on the merits, the
judge found him guilty beyond reasonable doubt of
serious physical injuries. In imposing the penalty what
forms of habituality as aggravating circumstances may
be considered?
A: Quasi-Recidivism and Recidivism. He is a recidivist
because at the time of trial for one offense, he was
previously convicted by final judgment for another crime.
He was previously convicted of Homicide and he committed
another crime which is SPI and was found guilty by final
judgment thereof. The two crimes (homicide and SPI) which
are both embraced in the same title of the Code. Therefore,
he is a recidivist.
He is also a quasi-recidivist because at the time he is serving
sentence for a crime, he committed another felony (serious
physical injuries is a felony). Therefore, he is also a quasi-
recidivist.
The effect of recidivism is that it can be offset by a generic
mitigating circumstance, whereas quasi recidivism cannot
be offset by a mitigating circumstance. Because under Art.
XI. That the crime be committed in consideration of a
price, reward, or promise.
This aggravating circumstance can be considered both
against the person who gave the price, reward or promise,
that is the principal by inducement and the person who
received the price, reward or promise, in order to commit
the crime, the principal by direct participation.
It is necessary that these must be the primary reason why
the crime has been committed. It is the sole consideration
why the crime has been committed by the principal by
direct participation.
If the price, reward or promise, as a circumstance is present
in the killing of a person, it is not considered as a generic
aggravating person but a qualifying aggravating
circumstance. It is one of the qualifying circumstances
under Art.248.
XII. That the crime be committed by means of
inundation, fire, poison, explosion, stranding of a
vessel or international damage thereto, derailment of
a locomotive, or by the use of any other artifice
involving great waste and ruin.
If the crime is committed by any of this means, it will be
considered as a generic aggravating circumstance but if the
crime committed by the use of any of these means is that of
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killing a person, it will not only be a generic aggravating
circumstance, but also a qualifying aggravating
circumstance under Article 248. It qualifies the killing to
murder.
MARCH 24, 2021
XIII. That the act be committed with evidence
premeditation.
The following are the requisites of evident premeditation;
1. he time when the offender determined to commit
the crime;
2. An act manifestly indicating that the culprit has
clung to his determination;
3. Sufficient lapse of time between the determination
and execution, to allow him to reflect upon the
consequences of his acts.
If present, qualifying aggravating circumstance – from
homicide, it becomes murder. You never consider this
circumstance in crimes against property.
Q: X challenged Y to a fight because he had done
something against his family. X lost the said fight. “I am
going to kill you”, said X. X left. Since then, X every 6:00
evening for three weeks, watched for the arrival of Y. X
bought a small gun and sharpened a knife, all intended
to kill Y. Kept them under his bed. He took the weapons,
went to Y. X stabbed Y and shot him also. X was charged
with murder (evident premeditation). Is he correctly
charged?
A: The time between the determination of X and the
execution, and statement that he will kill Y, shows evident
premeditation. They are overt acts that showed
determination to commit a crime. Second requisite is
satisfied when the overt act of buying a gun and sharpening
his knife. Third requisite is satisfied because of the three-
week gap between the determination and the execution of
murder.
• This is hard to prove because it is difficult to prove
when did he start being determined to do the
crime. Unless it is expressly present, evident
premeditation is rarely considered by SC.
XIV. That the craft, fraud or disguise be employed.
Craft means intellectual trickery or cunning resorted to by
the accused, so that he will be able to carry out his evil
design.
Fraud or deceit is manifested by the use of insidious words
or machinations resorted to by the accused so that the
offended party will perform an act that will make the
offender do the crime easily.
Criminal Law Review
Prosecutor Victoria C. Garcia
Disguise - ways and means resorted to by the accused to
conceal his identity.
This three can be considered singly, or collectively
depending on absence and presence.
XV. That advantage be taken of superior strength, or
means be employed to weaken the defense.
The requisites for abuse of superior strength are the
following;
1. That there be a notorious disparity of forces
between the offender and the offended party in
terms of their age, size and strength;
2. That the offender took advantage of this disparity
of forces to facilitate the commission of the crime.
Inequality of forces:
1. Victim is unarmed
2. Numerical superiority;
3. Difference in physical characteristics such as age
strength and size.
Should show evidence that the offender took advantage of
his superiority in order to facilitate the crime. Otherwise, it
cannot be appreciated.
People vs. Sibug – There was no showing that they took
advantage of their superiority in the commission of crime
XVI. That the act be committed with treachery
(alevosia).
There is treachery when the offender commits any of
the crimes against the person, employing means,
methods, or forms in the execution thereof which tend
directly and specially to insure its execution, without
risk to himself arising from the defense which the
offended party might make.”
The following are the elements of treachery;
1. That the offender deliberately adopted the
particular means, method or form of attack
employed by him;
2. That at the time of the attack, the victim was not in
a position to defend himself.
This will not apply if the crime committed is in the spur of
the moment. (first element)
Q: W is a leader of a group in their place. Always
threatening others. XYZ decided to kill W. Hence, about
10pm, they waited for the arrival of W. They hid. XYZ
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got out and simultaneously attacked W repeatedly with
stab wounds. W died. Information reads that the act
was attended with treachery and abuse of superior
strength. Would you consider both?
RTC = There is treachery because planned and
deliberated ways means and methods to kill W. There
is also abuse of superior strength because they were
armed with knives and they simultaneously attacked
each other. Is the RTC correct?
A: No. Treachery absorbed abuse of superior strength. No
effect on the imposition of penalty.
Q: X was on his way home. He decided to do a different
route on his way home. As he was passing be his place,
he saw Y. Since X did a grave thing against Y’s family, X
hid. On his way home, X found Y drinking softdrinks at
a nearby store. X took a knife. He placed it inside his
jacket and hurried towards Y. X asked how Y is doing
and while they were chatting, X suddenly grabbed his
knife and stabbed Y. Y died, X is prosecuted for the
crime of murder and the attendant circumstances are
treachery and craft?
A: Treachery was present because X deliberately planned
the ways means and methods by placing the weapon inside
his jacket and then stabbed an unaware victim.
There was cunning and intellectual trickery, he hid the
weapon inside his jacket and then pretended to ask Y how
he is doing. There is the circumstance of craft however,
treachery absorbs craft, so it shall not be considered as
ordinary aggravating circumstance. Craft was the very
treacherous means used for the commission of the crime.
Q: X is a successful businessman; he has this office in
Makati. He has a friend named Y. X was inside his office.
Y arrived in the office of X. 15 mins later, employees
heard to gunfires. X opened the door of his office. “Call
an ambulance immediately!” it was shouted. Y was
pronounced dead at the hospital. Would you consider
treachery in this case?
A: For treachery to be present, it must be present during the
inception of the crime. There should be an evidence as to
how the attack was commenced. In this case, because the
employees were not inside the office, they did not see any
quarrel or anything that happened inside the office. All they
heard were two gunfires. Homicide is the correct crime.
Q: X was arrested by police officer Y. Y brought X to PNP
station. Y asked him to sit at the bench to wait for
interrogation. Y returned, walking towards X, X stood
up walked towards, X grabbed Y’s pistol and pointed it
and shot Y, who died. X grabbed a woman and told the
other police, that if they are going to kill him, she will
die first. X dropped the woman on the way out of the
police. He saw another woman, he shot him.
A: X committed murder to Y, because of the treachery. There
is treachery because X deliberately planned ways means
Criminal Law Review
Prosecutor Victoria C. Garcia
and methods to kill Y while Y is not around and he suddenly
grabbed the gun and shot Y. As to the woman, it is homicide
because it happened at the spur of the moment because he
wanted to escape, no time to think and reflect.
• People vs *inaudible* - What matters is at the time
of the commission of the crime, the victim is unable
to put up a defense.
• People vs. Moreno – The victim was able to kick
him and push him against the door outside the
door. Treachery still attended the crime even if the
victim is able to put up the defense.
• It is present even if there is a frontal attack, as held
in Matibag case.
XVII. That means be employed or circumstances
brought about which add ignominy to the natural
effects of the act.
Ignominy is a moral circumstance which adds disgrace or
humiliation, embarrassment, to the injury suffered by the
victim
Q: In a barrio, a father and a daughter will go to sleep.
Accused barged inside the house. He pointed a knife at
the father and tied him. The accused went to the
daughter and had carnal knowledge in front of the
father. Is ignominy present in the case?
A: SC said ignominy attended the case.
Maggie dela Riva case – she was driving when the accused
stopped her car. She was made to stand a stage and forcibly
made her dance. She was stripped of clothes one by one. SC
said ignominy attended the case because the said act of
forcing her to dance and stripping her of clothing caused her
moral pain and they are not necessary to the commission of
the crime.
XVIII. That the crime be committed after an unlawful
entry.
XIX. There is an unlawful entry when an entrance of a
crime a wall, roof, floor, door, or window be broken.
There is an unlawful entry when an entrance is effected by
a way not intended for the purpose.
In correlation to this, paragraph 19 states that as a means to
the commission of a crime a wall, roof, floor, door, or
window be broken.
In 18, the accused enter first before committing the crime.
These two are inherent in the crime of robbery by using
force upon things.
Q: Passing through a bathroom window, he lifted the
window up. X entered the house and then took items
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and then left using the front door. Is there unlawful
entry?
A: In this case, unlawful entry will not be considered
because it is inherent in the crime of robbery by using force
upon things because what makes it robbery is the presence
of the unlawful entry.
Q: X wanted to kill Y. He saw a bathroom window,
forcibly opened it and then killed Y. He killed Y and then
got out. Unlawful entry?
A: Yes. It will be appreciated in this circumstance as a
generic aggravating circumstance.
Q: X wanted to take a property from a house. He went to
the house; the front door was closed but it was not
locked. X opened the front door, went inside, took items
and then got out. Unlawful entry?
A: No. The act of entering is through the door which is
particularly used for entering.
Accused wanted to steal inside the house of Y. He went to
the roof, made an opening, slipped a rope with a hook and
then used it to grab the bag. What crimes? Theft. Why not
robbery? He did not enter the premises? It is necessary that
the accused unlawfully entered the house. In this case, he
only made an opening to steal the property, and the fact that
the roof was broken, it will be an aggravating circumstance.
XX. That the crime be committed with the aid of
persons under fifteen years of age or by means of
motor vehicles, motorized watercraft, airships, or
other similar means. (As amended by RA 5438)
BY MEANS OF MOTOR VEHICLE
If the crime is committed with the use of motor vehicle in
killing a person, it is a qualifying aggravating circumstance
under article 248.
If the motor vehicle is used in the commission of any other
crime, it is a mere generic aggravating circumstance.
AID OF PERSONS UNDER 15 YEARS
If the crime committed makes use of minors under 15 years
of age, it shows the greater perversity of the offender
because he knows that minors cannot be arrested, plus the
lack of intelligence. Persons below 15 years of age cannot be
prosecuted, it is among the exempting circumstances.
Therefore, it shows greater perversity.
Q: X was walking along the road. Suddenly two men
riding in tandem in a motorcycle snatched the handbag
of X. X was able to identify the plate number of the
motorcycle and reported the matter to the police. The
police made an investigation which resulted to the
arrest of the two men. Is the use of motor vehicle an
aggravating circumstance?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: YES. The two men used the motor vehicle to snatch the
handbag of X. Thereafter, the two men utilized the motor
vehicle to facilitate their escape. Thus, the aggravating
circumstance of use of motor vehicle is present because it
facilitated the commission of the crime. The crime is theft,
not robbery. It is theft because if an item is snatched, it does
not mean that force was applied. It refers to suddenness.
XXI. That the wrong done in the commission of the
crime be deliberately augmented by causing other
wrong not necessary for its commissions.
Cruelty is the additional physical pain aside from the
material injury which is not necessary to the commission of
the crime. Aside from the commission of an unlawful act, the
accused is doing another act, an additional physical pain.
The following are the elements of cruelty;
1. That at the time of the infliction of the physical
pain, the offended party is still alive;
2. That the offender enjoys and delights in seeing his
victim suffer gradually by the infliction of the
physical pain;
Ex: Adding cigarette burns before killing a victim
Q: X stabbed Y, 5 fatal wounds. After killing Y, he
chopped different parts of the body. Is there cruelty?
A: There is no cruelty because the victim is already dead
before he chopped parts of the body.
Q: X shot Y. Y died. X was arrested. The gun was
confiscated. 2 crimes were charged against him, one is
homicide, one is illegal possession of loose firearms
because the latter should be used as special aggravating
circumstance. Is the charge correct?
A: The charge is wrong. The use of firearm is inherent in the
crime.
Q: X pointed a gun at Y. “Give me the keys to the car
otherwise I will shoot you!” Y gave the keys. X was
arrested. The gun was confiscated. What are the crimes
committed?
A: He should charged with the crime of carnapping. He
should not be charged with illegal possession of loose of
firearms because it is used for intimidation of Y. It is
inherent to commit the crime.
RA 10951
Q: X shot Y. Y died. X was arrested. The gun was
confiscated. But, it was an imitation firearm. It was a toy
firearm.
A: Section 35 of RA 10591 says it has the same effect. He still
shall be prosecuted with carnapping with the special
aggravating circumstance of use of a loose firearm.
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Q: X stabbed Y. Y died. X was arrested. He has a bag,
police officers confiscated it. When they looked inside,
there was a home-made gun. What are the charges?
A: The two crimes charged should be, homicide and illegal
possession of loose firearms. Separate charges because the
loose firearm is not inherent to the commission of the crime
of homicide. (Section 29, RA 10591)
ARTICLE 15 – ALTERNATIVE CIRCUMSTANCES (Their
Concept)
Art. 15. Their concept. — Alternative circumstances are
those which must be taken into consideration as
aggravating or mitigating according to the nature and
effects of the crime and the other conditions attending its
commission. They are the relationship, intoxication and
the degree of instruction and education of the offender.
The alternative circumstance of relationship shall be
taken into consideration when the offended party in the
spouse, ascendant, descendant, legitimate, natural, or
adopted brother or sister, or relative by affinity in the
same degrees of the offender.
The intoxication of the offender shall be taken into
consideration as a mitigating circumstance when the
offender has committed a felony in a state of intoxication,
if the same is not habitual or subsequent to the plan to
commit said felony but when the intoxication is habitual
or intentional, it shall be considered as an aggravating
circumstance.
Alternative circumstances are those circumstances which
can either be aggravating or mitigating, depending on their
effect in commission of the crime.
1. Relationship;
2. Intoxication;
3. Degree of Instruction or Education
RELATIONSHIP AS ALTERNATIVE CIRCUMSTANCE
Relationship as an Absolutory Cause
In certain crimes against property, relationship of the
offender with the offended party is exempting.
Example;
1. Theft;
2. Estafa or swindling; and
3. Malicious mischief;
Under article 332 if the crime committed is theft, estafa or
swindling, and malicious mischief, relationship exempts the
offender from criminal liability. Intent is to ensure the
harmony within the family.
Criminal Law Review
Prosecutor Victoria C. Garcia
Relationship is aggravating
- when the crime committed is serious physical
injuries or less serious physical injuries.
Relationship is inherent in the crime of parricide
and qualified seduction to a sister.
INTOXICATION AS ALTERNATIVE CIRCUMSTANCE
There is intoxication when the offender has taken such
amount of liquor of sufficient quantity as to affect his mental
capacity to determine the consequences of his act.
Intoxication as mitigating
Intoxication is considered as a mitigating circumstance if it
is not habitual or subsequent to the plan to commit the
felony.
As a rule, a low degree of education or instruction is
considered as a mitigating circumstance.
Exception: if the crime committed is inherently evil or
wrong.
Example: Killing a person, molesting a woman, taking the
personal property of another. Such is as wrong as to a
learned man as it is to an ignorant man.
As Aggravating Circumstance
A high degree of education is considered as an aggravating
circumstance if the offended makes use of his high degree
of education in facilitating the commission of the crime.
Q: A lawyer was driving at way home. His neighbor
invited him to a party. He obliged. He hardly drinks, but
because of many glasses, he became drunk. The waiter,
because of the lawyer shouting, he lost his grip and the
glass fell and broken glasses hit Atty. Atty became mad
and stabbed the waiter who died. He was prosecuted
for homicide, and high degree of education were
attendant to the crime. Is it mitigating?
A: Yes. Intoxication is a mitigating circumstance innot a
habitual drinker. No plan to kill the waiter. High degree of
education will not aggravate the crime because his law
degree has nothing to do with the stabbing of the waiter.
ABSOLUTORY CAUSES
Absolutory Causes are those circumstance which have the
effect in Article 12. Absolutory causes exempts a person
from criminal liability but not from civil liability.
Examples:
1. Mistake of fact;
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2. Instigation;
3. Accessories in Light felonies;
4. Death or serious physical injuries under
exceptional circumstances
EXTENUATING CIRCUMSTANCES
Extenuating circumstances are those which have the same
effect as mitigating circumstance but not included in Article
13, to lower the imposable penalty.
Example:
A mother killed her own child (Infanticide) less than 3 days
old in order to conceal her dishonor. The penalty here will
be lowered by 2 degrees, from reclusion perpetua to death,
the penalty will be prision mayor.
Intentional abortion - intentionally kills the fetus out of her
womb [abortion] - Ordinary mitigating circumstance
Slight illegal detention - mitigate by 1 degree- privilege
mitigating.
Instigation
In instigation, the mens rea originated from the mind of the
public officer who only lured the offender to commit the
crime. By public policy, the officer is criminally liable
(principal by inducement) and not the supposed accused,
who is exempted.
Entrapment is not an absolutory cause because
entrapment refers to ways and means resorted to by the
public officer in order to trap and capture a criminal in
flagrante delicto.
Here, the mens rea originated from the mind of the offender
Q: X was charged with illegal possession of dangerous
drugs. The judge acquitted X of illegal possession. He is
released after spending 2 years in jail. Police officers
went to him and asked for help to catch W for drugs
through buy bust operation. The police chief also
begged his help. X will act as poser-buyer. Buy bust
ensued. However, the moment X “bought” the shabu, he
was arrested. and once again X was charged with illegal
possession of dangerous drugs. X defense is that he was
instigated.
A: He is instigated, in this case because were it not for the
convincing of Y, through that trickery, he will not be able to
do the overt act.
ARTICLE 16 – WHO ARE CRIMINALLY LIABLE
ARTICLE 17 - PRINCIPALS
Criminal Law Review
Prosecutor Victoria C. Garcia
Art. 16. Who are criminally liable. - The following are
criminally liable for grave and less grave felonies:
1. Principals
2. Accomplices.
3. Accessories.
The following are criminally liable for light felonies:
1. Principals
2. Accomplices.
Art. 17. Principals. - The following are considered
principals:
1. Those who take a direct part in the execution of
the act;
2. Those who directly force or induce others to
commit it;
3. Those who cooperate in the commission of the
offense by another act without which it would not
have been accomplished.
So the person who can be held liable for the commission of
a felony are principals, accomplices and accessories. We
have three kinds of principals, they are:
1. Principals by direct participation; those who
directly take part in the execution of the crime.
2. Principal by induction or inducement; those who
directly force or use others to commit the crime
3. Principal by indispensable cooperation; those who
cooperates in the commission of the crime by
another act without which the crime would not
have been consummated
Both the principal by direct participation and the
principal by indispensable cooperation must be present
at the scene of the crime insofar as the principal by direct
participation is concerned, he is the one who directly
executes the crime. Without him there is no crime.
In so far as the principal by direct cooperation he performs
another act which is indispensable without which the crime
would not have been committed. Therefore, both must be
present.
However, a principal by induction or inducement need
not be present at the scene of the crime even if he is not in
the scene of the crime, if the following elements are proven,
he can be held liable as principal by induction.
1. The inducement must be made directly with the
deliberate intent of procuring the commission of
the crime and
2. The inducement must be the primary reason, the
main consideration why the principal by direct
participation committed the crime.
If these 2 elements are present even if he is the not person
actually committing the crime, he can be held liable as a
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principal by induction or principal by inducement. In
movies he is the mastermind and the mastermind usually
does not appear at the time of the commission of the crime.
Therefore, if these are present, he can still be liable as a
principal by inducement or induction.
ARTICLE 18 - ACCOMPLICES
Art. 18. Accomplices. - Accomplices are those persons who,
not being included in Article 17, cooperate in the
execution of the offense by previous or simultaneous acts.
Accomplice
Those, not being principals, cooperates in the execution of
the crime by previous or simultaneous acts. Before one may
be considered as an accomplice, the following are the
elements:
1. That there exist a community of design
2. That the offender performs acts previous or
simultaneous to the commission of the crime
3. That there is a direct relation between the acts
done by the principal and those actually committed
by the accomplice
The 1st element requires that there must be a community
of design.
Community of design - This occurs when the principals,
after the crime, informs the accomplice, when the
accomplice concurs with the said criminal design related to
him by the principal, there is community of design. So it is
the accomplice’s concurrence of the criminal design that
he’s been after and decided by the principal and after
concurred he performs acts previous or simultaneous to the
commission of the crime. There must be a direct relation
between the acts of the principal and those of the
accomplice.
ARTICLE 19 – ACCESSORIES
Art. 19. Accessories. - Accessories are those who, having
knowledge of the commission of the crime, and without
having participated therein, either as principals or
accomplices, take part subsequent to its commission in
any of the following manners:
1. By profiting themselves or assisting the offender
to profit by the effects of the crime.
2. By concealing or destroying the body of the
crime, or the effects or instruments thereof, in
order to prevent its discovery.
3. By harboring, concealing, or assisting in the
escape of the principals of the crime, provided
Criminal Law Review
Prosecutor Victoria C. Garcia
the accessory acts with abuse of his public
functions or whenever the author of the crime is
guilty of treason, parricide, murder, or an
attempt to take the life of the Chief Executive, or
is known to be habitually guilty of some other
crime.
Accessories
Accessories are those who having knowledge of the
commission of the crime and without having participated
therein as principals or accomplices take part subsequent
to its commission in any of the following manners:
1. By profiting themselves or assisting to profit by the
effects of the crime
2. By concealing or destroying the body of the crime
or effects or instruments thereof in order to
prevent its discovery
3. By harboring, concealing, or assisting in the escape
of the principal provided the accessory acts with
the use of his public function or whenever the
author of the crime is guilty of treason, parricide,
murder, and attempted to take the life of the chief
executive or some who have been found guilty of
some other crime.
If the principal offers the said criminal design and the
accomplice concurs with the criminal design, an accessory
doesn’t know the criminal design. An accessory never
concurred. Hence, he has no knowledge prior to the
commission of the crime. What the accessory knows is that
a crime has been committed.
Accessories are those having knowledge of the commission
of the crime therefore what he knows is that a crime has
been committed he doesn’t know anything prior to the
commission of the crime. He has nothing to do with the
criminal design. However, he knows a crime has been
committed. And despite the fact he knows, he takes part
subsequent, therefore his participation is under the
commission of the crime.
FENCING - Fencing is present when the following elements
are present:
1. that a crime of robbery or theft was committed.
2. that the offender who is neither a principal or
accomplice in the crime of robbery or theft was
found in the possession of any article, item, object,
or anything of value which is the proceeds of
robbery or theft.
3. that the offender knows or should have known that
the thing in his possession is the proceeds of
robbery or theft.
4. Lastly, there is on the part of the offender intent to
gain either for himself or for another.
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Fencing, however, is exclusive only if the crime committed
by the principal is robbery or theft. Therefore, it would not
apply if the crime committed is another crime outside of
robbery and theft.
In case of an accessory, the law requires the prosecution
must prove, proof of knowledge on the part of the accessory
that a crime has been committed. The burden is on the
prosecution to prove that this offender charged as an
accessory knows that a crime has been committed.
That is not required in fencing because in fencing it suffices
that it should have been known to the fence that the thing
was the proceeds of robbery or theft.
Insofar as the court is concerned there is , on the part of the
offender, intent on the part of the offender or for some other
person. SC however said in the case of Ong v People and
other similar cases insofar as fencing is concerned actual
criminal intent is immaterial.
The 2nd act of an accessory by concealing or destroying
the body of the crime or the instruments thereof for the
purpose of preventing its discovery therefore it is either the
intention of the offender in concealing or destroying the
body or the instruments used, or the effects thereof is to
prevent the discovery of the crime. If he has any other
purpose other than that of preventing the discovery, he
cannot be held liable as an accessory.
Substance of the crime or body of the crime - refers to
the fact that a crime has been committed by someone.
Two Elements:
1. proof of the occurrence of a certain intent
2. proof of a person’s criminal responsibility therefor.
But if the crime does not refer to the deceased body of the
victim even if the body of the victim was thrown in the sea
and could no longer be seen. If someone has witnessed the
act of killing and the act of throwing, then the body of the
crime may be considered could still be proof of the
commission of the said crime by the accused.
In the crime of robbery and theft, the thing taken is the not
the purpose. There is no need to present the thing taken.
Ninakaw na nga eh pano mappresent un ng prosecution.
Therefore, it cannot be considered as the body of the crime
or the responsibility. If someone can testify to the said act
of taking there can still be proof of robbery or theft.
By harboring or concealing or assisting in the escape of
the principal. Under the 3rd act there are 2 kinds of an
accessory:
1. Public officer
Criminal Law Review
Prosecutor Victoria C. Garcia
2. Private individual.
If he is a public officer, the crime committed by the principal
can be any crime provided that in his act of harboring or
concealing or assisting in the escape of the principal the said
public officer acted within his public function.
If, however the offender who harbors, conceals, or assists in
the escape of the principal happens to be a mere private
individual the law requires that the said principal must be
guilty of treason, parricide, murder, an attempt to take the
life of the chief executive or some other crime.
ARTICLE 20 – ACCESSORIES WHO ARE EXEMPT FROM
CRIMINAL LIABILITY
Art. 20. Accessories who are exempt from criminal liability.
- The penalties prescribed for accessories shall not be
imposed upon those who are such with respect to their
spouses, ascendants, descendants, legitimate, natural, and
adopted brothers and sisters, or relatives by affinity
within the same degrees, with the single exception of
accessories falling within the provisions of paragraph 1 of
the next preceding article.
If the accessory who assisted in the escape of the principal,
if the who accessory conceals or destroys the body happens
to be a relative, spouse, legitimate, natural or adopted
brothers and sisters or relatives in the same degree he is
exempted from criminal liability. However, if the act
performed by the said accessory relative is the 1st act; by
profiting himself or assisting, the said relative even if he is a
relative the exemption would not apply. So, this exemption
for relatives would only apply if the act done would be that
of the 2nd as well as the 3rd act but not the 1st act.
Q: X decided to kill Y, he needed a lookout. He was
already on way to Y’s house so he passed by his friend Z
and told Z “is it alright if you act as my lookout. I decided
to kill Y to settle everything.” and Z said went with him
provided he’s only outside and he wouldn’t be included
in the act. X agreed and so Z said, “yes I will act as a
lookout” and so X and Z went to the house of Y. Z stood
on the street opposite the house of Y. X entered the
house. Minutes later, Z saw some barangay tanods
coming, so he tried calling X, but X wouldn’t reply. Z was
so nervous, and Z went inside the house of Y and there
he saw the bloody body of Y lying on the floor. Z told X,
“let’s go, barangay tanods are coming. They might see
you.” X said “Patay na yan. Itapon mo muna sa balon sa
likod.” Z grabbed the body of Y to the said deep well
however before throwing the said body, Z saw the
necklace, ring, and watch of Y and Z took said items.
Now, thereafter, Z threw the body of Y into the said well.
After X and Z left. Once Z arrived home, he told his
eldest brother “Kuya, may regalo na ko sa birthday mo”
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and he gave the ring, the necklace as well as the watch.
“San mo to nakuha?” and he narrated what happened
and Z told his brother “wala naman nakakaalam”. Then
said brother wore the ring, necklace and the watch. The
following morning, however, when the brother bought
bread from the bakery, he saw people around the house
of Y. The killing of Y was discovered. And so, the said
brother immediately went home and told Z “alam na
yung nangyari. Pumunta ka sa lugar na to. I have a
friend. My friend will harbor you. I will call my friend
telling what happened, so you go to his house.” Z
followed as instructed and went to the said place and
the said friend concealed despite the fact that he knew
of his act. Meanwhile in the autopsy report Y died of
drowning. Secondary to repeated stabbing. What are
the crimes or criminal liabilities of X, Z, of his brother,
and of the person who harbored Z?
A: Insofar as X is concerned, X is criminally liable for the
crime of murder as a principal by direct participation. But
based on the autopsy report the cause of death of Y was
drowning. So, X would be liable as a principal by direct
participation for that crime of murder.
But isn’t it that it wasn’t the stabbing that caused the death
so why would he be liable for murder? Because when he left
the victim, he believed that the victim was already dead. He
believed that he already consummated the act of murder.
Therefore, he should be liable as a principal by direct
participation for the crime of murder.
Z is also liable as a principal for the crime of murder. This
time he will be liable as a principal by indispensable
cooperation. He did not do the stabbing. However, his act of
throwing the body into the well was the cause of death.
Based on the autopsy report, the victim died of drowning.
Therefore, without his participation, the said killing would
not have happened. Therefore, his act was indispensable to
the consummation of the crime. But what if Z said he did not
know that Y was still alive. Had he known Y was still alive
he would not have thrown the body into the well. Will this
defense lie in his favor? No. Because his mere act of
throwing the body into the well is already a felony
therefore, he becomes criminally liable for the resulting
death. Hence, he is liable as a principal by indispensable
cooperation in the crime of murder.
Insofar as Z is concerned so he is liable as a principal by
indispensable cooperation in the crime of murder. Any
other criminal liability on the part of Z? He is also liable for
the crime of theft by direct participation. The jewelries, the
ring, the necklace. In his death because the victim was at the
time didn’t put up a fight there was no force employed in
the act of taking. Z is liable for the crime of theft as a
principal by directly participation. X this time has no
criminal liability. He did not participate in the said act of
taking.
Criminal Law Review
Prosecutor Victoria C. Garcia
What about the brother? There are actually 2 acts done by
the brother. 1st is he wore the said jewelries. So when he
wore the said jewelries the said brother profited from the
said proceeds of the crime of murder and theft. So is the
brother exempted insofar as the 1st act is done? No. The
brother is not exempted insofar as the 1st act is done
although his act is that of an accessory under the 1st act he
is not exempted. What is the 2nd act done by the brother?
He harbored concealed and assisted in the escape of his
brother. Will he be held liable as an accessory? No. He will
not be held liable as an accessory insofar as this act
concerned. Why? Cause insofar as the private individual is
concerned, the law required that the principal is guilty of
treason, parricide, murder. The law requires guilty of. In
this case Z is not yet found guilty. Di pa nga nakakasuhan eh.
Nagtatago palang. Therefore, it cannot be said that Z was
guilty. Therefore, he is not liable in so far as the 2nd act is
concerned. Therefore, what could be the liability? He would
be liable for violation of PD 1829, Obstruction of justice. He
prevented the apprehension of his brother by telling his
brother to go to his friend that would be able to harbor and
conceal him.
What about the criminal liability of the friend who harbored
and concealed Z? Is said friend liable as an accessory? No
even if he knew the acts done by Z. Reason is Z not yet found
of guilty of murder. The law says that provided that the said
principal is guilty of treason, parricide or murder. Here Z is
not yet guilty. The friend would be liable under PD 1829
Obstruction of justice in harboring, concealing Z he
prevented the investigation of a case and the apprehension
of the said criminal.
Q: This time, said brother of Z sold the jewelries and the
person who bought the jewelries and the police
discovered the jewelries in his possession. The person
would be liable for the crime of fencing. We said that the
brothers sold the jewelries to him for the price of
P2000.00. A real watch sold for P2000.00.
A: All the elements for fencing were present. Why were all
the element present. 1st the crime of theft was committed.
It was Z who took the said jewelries from the victim Y. And
then thereafter gave it to his brother. Therefore, a crime of
theft has been committed. And the said person who bought
it was found in possession of the same. And the said person
should have known. It was a real watch, a real ring, a real
necklace being sold for P2000.00 and the first statement
was “bahala ka na sa amount”. No owner would sell it that
way. And obviously there was on the part of the person who
bought the ring intent. Therefore, all the elements of fencing
are present. The said person who bought the jewelries will
be liable for fencing.
Q: The farmer was on his way home and on the distance,
he has already heard the cries of his wife shouting
aloud, asking for help. The farmer rushed towards their
house and there he was a man on top of his wife who
was at the time naked and he saw that his wife was
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struggling and crying. The said man upon seeing the
arrival of X got out and X realized that it was Y, another
farmer from another town separated from their town
by a river. The said man ran away. X holding on his bolo
rushed towards the man, however, the man was very
quick and then thereafter, the man went near the river
and he gets his own boat and went to the other side. X
reached the place. There were many boatman there and
he found a boatman by the name of Z. “Did you see Y
here?” and Z said “Yes. Nakaalis na.” and X told Z “Could
you bring me to that other town? I’ll pay you any
amount.” and Z said “Yes” So X boarded the said boat of
Z and Z brought him to the other side. When X alighted,
X told Z “Can you wait for me?” and Z told X “no
problem” and X narrated to Z what Y had done and X
told Z “I’m going to kill him. I’m going to teach him a
lesson. He molested my wife. Please wait for me. I need
you for me to get back to my place” and so Z said “ok. I’ll
wait for you” and so X alighted went to the town. He
went to the house of Y and killed him. After killing Y, he
went to Z. Boarded the boat and Z brought him back to
their town. What are the criminal liabilities of X and Z?
A: Insofar as X is concerned; he is liable as a principal by
direct participation in the said act murder.

Q: What about insofar as Z, the said boatman, is

concerned?
A: The said boatman would be liable as an accomplice. Why
an accomplice? Why not an accessory? The boatman is an
accomplice because X narrated to the boatman his design to
kill Y. And after narrating it to the boatman, C concurred.
And he performed act previously, he was the one who got
him there and he waited as X was committing the crime. His
act is related to the act done by said principal. Therefore, he
is an accomplice in the commission of the crime.

Q: What could be your defense if you were the counsel

of X?
A: Death under exceptional circumstances. X saw this man
on top of the said wife. Would the said defense apply? No,
the said defense of death under exceptional circumstances
would not apply because in case of death under exceptional
circumstances the other spouse must have a relation with
the other man. There must be an illicit relationship. Here, it
was an act of rape done by Y against the wife. Therefore Art
247 would not apply. Hence, X would be liable for the crime
of murder.

“Do or do not. There is no try.” – Master Yoda

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MARCH 17, 2021
BOOK II
TITLE ONE – CRIMES AGAINST NATIONAL SECURITY
AND THE LAW OF NATIONS
ARTICLE 114 - TREASON
ELEMENTS:
1. The offender can either be a Filipino citizen or an
alien in the Philippines;
2. There is a war in which the Philippines is involved;
3. The offender either levies war against the
Philippine government or he adheres to the
enemies by giving them aid or comfort.
The first element refers to the offender who can either be
a Filipino citizen, who owes permanent allegiance to the
Philippine government, or an alien residing in the
Philippines even if he is only of a temporary stay. Therefore,
anybody in the Philippines can commit the crime of treason.
The second element requires that there is a war in which
the Philippines is involved. In an old case of Laurel, treason
is a war time offense. In times of peace, treason is dormant.
It does not exist. However, the moment war erupts, the
moment emergency arises, treason is immediately put into
effect as an act of self-defense on the part of the State.
When you hear public officials at present saying, "This or
that committed treason." It is wrong. There is no war in
which the Philippines is involved. Therefore, that other
public official cannot be accused of committing treason.
That is an erroneous accusation.
The third element provides for the mode of committing
treason. The offender can either: (1) levy war against the
Philippine government; or (2) adheres to the enemy by
giving them aid or comfort.
Levying war means the Philippine government requires
the concurrence of 2 elements:
1. It is necessary that there must be an actual
assembly of men; and
2. It is for the purpose of executing or effecting a
treasonable design by force.
These men must connive, must conspire with the enemy
troops in order to hand over the Philippine government.
The other mode of committing treason is by adhering to
the enemies, giving them aid or comfort. The offender
intellectually and emotionally favors the enemy. It is an
Criminal Law Review
Prosecutor Victoria C. Garcia
internal feeling or state of the mind. It is manifested by his
act of giving aid or comfort to the said enemies. He can give
them valuable information relative to the defense of the
Philippines or he can give them means of transportation,
supplies like arms. He can give anything that would
strengthen the offense of the enemy and would weaken the
defense of the Philippines.
If there are 2 ways of committing treason, there are also 2
ways of proving treason:
1. By the testimony of at least 2 persons to the same
overt act; and
2. By open court confession.
There must be at least 2 witnesses to the overt act
committed by the offender. This is known as the Two
Witness Rule. Therefore, it requires direct evidence. It
cannot be proven by circumstantial evidence because the
law requires that there must be witnesses as to the said act
performed by the offender charged with treason.
The other mode of proving treason is by the said confession
or admission of guilt of the act of treason. It must be a
confession done in open court, before the court hearing the
case.
If in the course of commission of treason, the offender
would perform certain acts or would commit common
crimes, like when he connived with the enemy troops, the
said offender burned the houses of the Filipinos or killed
certain Filipinos, he did this in order to commit the act of
treason. Such acts were incidental to the commission of the
crime of treason. In doing so, the commission of these
common crimes would simply be absorbed by the crime of
treason. He cannot be charged separately and distinctly for
the said killing and for the said act of arson because these
common crimes were done in furtherance of or incident to
the commission of the crime of treason.
ARTICLE 115 – CONSPIRACY AND PROPOSAL TO
COMMIT TREASON
There is conspiracy to commit treason when 2 or more
persons decided to commit treason.
There is proposal to commit treason when the person
who decided to commit the said crime proposes its
commission to another person.
Then again, for this to happen, there must be a war in which
the Philippines is involved. So, treason, conspiracy to
commit treason and proposal to commit treason will only
happen if there is a war in which the Philippines is involved.
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ARTICLE 116 – MISPRISION OF TREASON
Misprision of treason is committed by any Filipino citizen
who, in times of war in which the Philippines is involved,
failed to disclose a conspiracy to commit treason that has
come to his knowledge as soon as possible to the proper
authorities. This crime cannot be committed by an alien or
a foreigner even if he is residing in the Philippines.
In times of war in which the Philippines is involved, Filipino
citizens are mandated by law to divulge, as soon as possible,
immediately, to the authorities any conspiracy to commit
treason that would come to his knowledge. In other words,
he is obligated by law and if he fails to do so, he becomes
liable for misprision of treason for having omitted to
disclose a conspiracy to commit treason that has come to his
knowledge.
ARTICLE 117 – ESPIONAGE
TWO WAYS OF COMMITTING ESPIONAGE:
1. By entering, without authority therefor, a warship,
fort, or naval or military establishment or
reservation to obtain any information, plans,
photographs or other data of a confidential nature,
relative to the defense of the Philippines; and
2. By disclosing to the representative of a foreign
nation the contents of the articles, data or
information referred to in paragraph No. 1 of Art.
117, which he had in his possession by reason of
the public office he holds.
Espionage is a crime that can be committed both in times of
peace and in times of war.
It can be committed by any person; he can be a Filipino
citizen, or he can be a foreigner. He can be a public officer or
employee or a private individual. Anyone can commit the
crime of espionage.
Q: What if X entered a military establishment. He did
not ask permission; he was just found inside. Can he be
charged with the crime of espionage?
A: Yes, he can be charged with the crime of espionage. The
fact that he enters the said place without authority, without
asking permission, the law presumes his intention was to
obtain this classified information relative to the defense of
the Philippines. Since the question was merely if he can be
charged, he has to rebut and he has to prove otherwise that
his intention was to obtain this classified information. But
the fact that he enters the prohibited place without
authority, the law presumes his intention was to obtain this
classified information.
Criminal Law Review
Prosecutor Victoria C. Garcia
Under the second act of committing espionage, the
offender here is a public officer who, by reason of the duties
of his office, has in his possession any information,
photographs relative to the defense of the Philippines. The
said officer divulges it, he disclosed, he revealed it to the
representative of a foreign nation. The moment he did that,
he will become liable for the crime of espionage.
ARTICLE 118 – INCITING TO WAR OR GIVING MOTIVES
FOR REPRISALS
ELEMENTS:
1. The offender performs acts unauthorized by the
Philippine government; and
2. The said act provokes or gives occasion for a war
involving or liable to involve the Philippines or
exposes Filipino citizens to reprisals on their
persons and property while they are in a foreign
country.
Q: What if member of this NGO had this rally before the
Malaysian Embassy and burned pictures and effigy of
the Malaysian President. This angered the Malaysian
government and they turned hostile to Filipino citizens
who are living in Malaysia. Can the members of the NGO
be held liable for the crime of inciting to war and giving
motives for reprisals?
A: Yes, they can be held liable for the crime of inciting to war
and giving motives for reprisals. Because of their acts the
Malaysian government became hostile to the Filipino
citizens in Malaysia. They exposed our countrymen to
reprisals on the persons and property.
ARTICLE 119 – VIOLATION OF NEUTRALITY
ELEMENTS:
1. There is a war, but the Philippines is not a party to
the said war;
2. The competent authority issued a regulation for
the purpose of enforcing neutrality among Filipino
citizen; and
3. The offender violated the regulation issued or
declaration by a competent authority and sided
with any of the warring states.
Example: In case of violation of neutrality, although there
is a war, the Philippines is not a party thereof. The
Philippine government, then, issued a declaration or
proclamation that all Filipinos should stay neutral.
However, X sided with one of the warring countries and
even gave support. Therefore, X can be held liable for the
crime of violation of neutrality.
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Therefore, if there is no declaration coming from competent
authority enforcing neutrality, that person who sides with
any of the warring countries cannot be held liable for the
crime of violation of neutrality. It is the violation of the
said declaration enforcing neutrality that will give rise
to the crime.
ARTICLE 120 – CORRESPONDENCE WITH HOSTILE
COUNTRY
ELEMENTS:
1. The crime is committed in times of war;
2. The offender makes correspondence with an
enemy country or any territory occupied by the
enemy troops; and
3. That the correspondence is either —
a. Prohibited by the Philippine Government; or
b. Carried out in ciphers or conventional signs; or
c. Containing notice or information which might
be useful to the enemy.
It is necessary for the said crime to arise that there is a war
in which the Philippines involved. If there is a declaration
coming from the Philippine government saying that all
communications are prohibited, then, any act of making
communication, no matter how innocent, will make the
offender liable. But if there is no declaration coming
from competent authority prohibiting the making of
communication, the crime will only arise if the said
communication or correspondence is carried out in
ciphers or conventional signs or it contains notice or
information that will be useful to the enemy country.
ARTICLE 121 – FLIGHT TO ENEMY’S COUNTRY
ELEMENTS:
1. There is a war in which the Philippines is involved;
2. The offender owes allegiance to the Philippine
Government;
3. The offender attempts to flee to a foreign country;
and
4. Such act of going to the foreign country, to the
enemy state, is prohibited by the Philippine
government.
It is necessary that there must be a proclamation or a
declaration coming from a competent authority which
prohibits anyone from going to the enemy territory. If there
is such prohibition, any attempt to flee or to go to the said
enemy territory will make the offender already criminally
liable.
Criminal Law Review
Prosecutor Victoria C. Garcia
ARTICLE 122 – PIRACY IN GENERAL AND MUTINY ON
THE HIGH SEAS
PIRACY
ELEMENTS:
1. The vessel is on the high seas or in the Philippine
waters;
2. The offenders are not members of the complement
or passengers of the vessel;
3. The offenders either:
a. Attacked or seized the vessel; or
b. Seize in whole or in part the cargo, the
equipment, or the personal belongings of the
passengers or members of the complement.
Q: Where is the vessel located?
A: The vessel is on the high seas or in the Philippines waters.
Q: Who may be the offenders?
A: The offenders must not be insiders or must not be
members of the complements or passengers of the vessel.
The offenders must be strangers to the vessel. They must be
coming from the outside of the vessel.
Q: How is it committed?
A: The offenders either: (a) attacked or seized the vessel; or
(b) seize in whole or in part the cargo, the equipment, or the
personal belongings of the passengers or members of the
complement.
Based on the manner in committing piracy, it is akin to
robbery. There is the act of taking with intent to gain. The
thing taken can either be the vessel itself or the things inside
the said vessel, the cargo, equipment or personal belongings
of the passengers or members of the complement inside the
said vessel.
MUTINY
ELEMENTS:
1. The vessel is either on the high seas or on
Philippine waters;
2. The offenders are members of the complement or
passengers of the vessel; and
3. The offenders raise a commotion or disturbance on
the board the ship against the lawful command of
the captain or the commander of the ship.
Q: Where is the vessel located?
A: In case of mutiny, the vessel can be on the high seas or on
Philippine waters, just like in piracy.
Q: Who may be the offenders?
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A: Unlike in piracy, the offenders are insiders to the vessel.
They can either be passengers or members of the
complement of the said vessel.
Q: How is the act of mutiny committed?
A: The offenders raise a commotion or disturbance on the
board the ship against the lawful command of a superior
authority. Insofar as the vessel in concerned, the said
superior authority is the captain or the commander of the
vessel.
Based on the manner of committing mutiny, it is akin to
sedition. It is an act of insubordination, going against lawful
authority, carried by unlawful means. Hence, it is akin to
sedition.
ARTICLE 123 – QUALIFIED PIRACY
The following circumstances would qualify piracy:
1. Whenever the pirates have seized a vessel by firing
or boarding upon the said vessel;
2. Whenever the offenders have abandoned their
victims without means of saving themselves; and
3. Whenever the crime is accompanied by murder,
homicide, physical injuries, or rape.
Under the first qualifying circumstance, whenever the
pirate has seized a vessel by boarding or firing upon the said
vessel. It is necessary by the clear statement of the law that
it is the vessel itself that must be seized. Therefore, even if
there was boarding, even if there was firing but it was not
the vessel itself that was seized, it is piracy but NOT
qualified piracy. Because the law expressly states,
"whenever the pirates have seized the vessel."
Under the second qualifying circumstance, after the
pirates have committed acts of piracy, they abandoned the
passengers, the members of the complement without
means of surviving.
Under the third qualifying circumstance, if in the course
of the commission of piracy, there will be the act of murder,
homicide, physical injuries or rape. If in the course of the
commission of piracy, the pirates would commit any of
these common crimes, these will not constitute a separate
and distinct charges. They are only circumstances that will
qualify the penalty and will make the crime qualified piracy.
Hence, they will not give rise to a separate and distinct
charge.
Art. 123 used the phrase "physical injuries" without any
distinction as to whether it is serious or less serious.
Therefore, any kind of physical injuries that will accompany
the crime of piracy will make the crime already qualified
piracy.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: The vessel was sailing towards Cebu. While the
vessel was on its way, here comes a motorboat which
suddenly went near the said vessel. There were 3 men
armed with armalites and fired shots in the air.
Thereafter, they boarded the said vessel. They went to
the captain and X, at gunpoint, told him to stop the
vessel. Thereafter, they gathered all the passengers and
while pointing their arms, told them to place all their
valuables inside the bags provided by these 3 men, X, Y
and Z. After they got what they needed, these 3 men left.
Can they be held liable of the crime of piracy?
A: Yes, they can be held liable of the crime of piracy. The
vessel is on Philippine waters. The offenders, X, Y and Z are
not members of the complement or passengers of the
vessel. They were strangers or outsiders to the vessel. The
said offenders seized, in whole or in part, the belongings of
the passengers and members of the complement of the said
vessel. Even if they fired, even if they boarded the vessel,
since they did not seized the vessel itself but only the
personal belongings of the complement and passengers, it
is NOT qualified piracy. It is simply piracy.
Q: In the same problem, while these 3 men, X, Y and Z,
armed with armalites were instructing all the
passengers and members of the complement to place
everything, their valuables, inside the bags that they
have provided. One of the passengers refused to place
therein a valuable. It was his wedding ring. He loved his
deceased wife so much, that ring was so precious to him
that's why he did not want to give it. He tried to hide it
by placing his hand inside the pocket, but it was easily
noticed by X, Y and Z who went to him, pointing their
guns to him and told him to hand over the ring. When
he refused, the said ring finger was cut. What crime is
committed?
A: They committed the crime of qualified piracy. The said
act of committing piracy was accompanied by inflicting
physical injuries on one of the passengers therein.
Therefore, from a mere piracy, it becomes qualified piracy.
Q: The vessel was sailing towards Cebu. When it was
nearing the shores of Cebu, 5 members of the
complement connived with 5 passengers who
happened to be their friends. All 10 of them conspired
to take away part of the cargo, whatever they could be,
of the said vessel. When the said vessel reached the
shore of Cebu, as the passengers were alighting, these
10 men at knifepoint, took the cargo. What crime, if any,
did they commit?
A: They are NOT liable of piracy. Although the first element
is present, the vessel is on Philippine waters. The third
element is also present, they took in part the cargo of the
said vessel. The second element, however, is absent. The
law requires that the offenders must have not been
members of the complement or passengers of the vessel. In
this case, the offenders were insiders to the vessel, 5
passengers and 5 members of the complement.
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Therefore, Art. 122 will not apply. They are liable of piracy
under PD 532, the Anti-Piracy Law of 1974.
PD 532
THE ANTI-PIRACY LAW OF 1974
It refers to any attack or seizure of the vessel or in whole or
in part the cargo, equipment or personal belongings of the
members of the complement or passengers of the vessel
irrespective of the value thereof. It is committed by any
person, including members of the complement or
passengers of the vessel while it is on Philippine waters.
In case of piracy under PD 532, the offender can be any
person, not necessarily outsiders. Even members of the
complement or passengers can commit piracy under PD
532 for as long as the vessel is on Philippine waters.
In the case previously mentioned, the vessel was on the
waters of Cebu when the said act of piracy was committed
by the very own members of the complement of the vessel
in connivance, in conspiracy with the passengers of the
vessel. Hence, they are liable of piracy under PD 532, the
Anti-Piracy Law of 1974.
RA 6235
THE ANTI-HIJACKING LAW
Under the Anti-Hijacking Law, the following acts are
punished as inimical to civil aviation:
1. By compelling the pilot of an aircraft of Philippine
registry to change its course or destination or by
seizing or usurping control thereof while it is in
flight;
2. By compelling an aircraft of foreign registry to
land in Philippine territory by or seizing or
usurping control thereof while the same is in
Philippine territory;
2. By carrying or loading on board a passenger
aircraft operating as a public utility in the
Philippines materials or substances which are
explosive, flammable, corrosive or poisonous;
3. By shipping, carrying or loading on board a cargo
aircraft operating as a public utility in
the Philippines materials or substances which are
explosive, flammable, corrosive or poisonous in a
manner not in accordance with the rules and
regulations of the Air Transportation Office.
Criminal Law Review
Prosecutor Victoria C. Garcia
Under the first act, when it is an aircraft of Philippine
registry, for hijacking to arise, it is necessary that the
aircraft be in flight.
An aircraft is said to be in flight the moment all its external
doors have been closed following embarkation until any of
its doors had been opened for purposes of disembarkation.
Therefore, it is not really required that the aircraft be up
there in the air. Even if it is on the ground, for as long as all
external doors have been closed following embarkation
until any of its doors had been opened for purposes of
disembarkation, it is deemed in flight.
Insofar as aircrafts of foreign registry is concerned, for the
crime to arise, there is no need that it be in flight. Therefore,
hijacking can be committed the moment the aircraft is
within Philippine territory. No need that the external doors
are closed following embarkation until any of its doors had
been opened for purposes of disembarkation.
Insofar as the first two acts are concerned, the presence of
the following circumstances will qualify the imposable
penalty:
a. By firing upon the pilot or the member of the crew
or passenger of the aircraft; or
b. By exploding or attempting to explode by means of
a bomb or explosive for purposes of destroying the
aircraft; or
c. Whenever the crime is accompanied by murder,
homicide, serious physical injuries, or rape.
Under the third and fourth act, if the aircraft is a
PASSENGER AIRCRAFT, the mere act of carrying or loading
explosive, flammable, corrosive or poisonous substances
will already make the offender criminally liable because it
being a passenger aircraft, these explosive, flammable
substances should not be placed thereof. But, if it is a
CARGO AIRCRAFT, the placing of these poisonous
substances, flammable substances, is allowed because it is a
cargo aircraft. Its purpose is to transfer the cargo from one
place to another. The crime will only arise if such act of
loading is not in accordance with the rules and regulations
of the Civil Aeronautics Board.
Q: Cebu Pacific aircraft landed at NAIA Terminal 3. It
was a turnaround aircraft. The moment it arrived, the
passenger and cargo doors were opened, the
passengers alighted, and cargoes were taken. It was
bound to go back to GenSan. After all these passengers
and these cargoes had been disembarked, here comes a
new set of passengers bound to go to GenSan and a new
set of cargoes loaded in the said aircraft. The pilot has
already ordered the closing of all doors. However, here
comes the pilot saying, "This is your pilot, talking to
you. We wanted to extend our apologies; we will be
delayed because of traffic. We are still 10th in line.
Please sit and relax as we cannot yet leave."
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Here comes X, he took that as his opportunity. X went to
the restroom, once inside, he assembled all these pieces
until it becomes a gun. Thereafter, he came out. Since
the cabin of the said aircraft was open, he immediately
entered and pointed the gun at the neck of the pilot. He
told the pilot to not move and to just follow his
instructions that the moment they took off, the pilot has
to redirect the course of the flight to Davao because he
has to talk to the President.
Everybody was afraid, was in shock. However,
unknown to X, authorities were already alarmed. When
it was time for the said aircraft to fly, the middle doors
were opened. Thereafter, the said authorities arrived.
When X saw the authorities arrived, before he was
captured, he shot the pilot. What charge could be filed
against X?
A: He could be charged with violation of RA 6235. Cebu
Pacific was an aircraft of Philippine registry. At the time he
orders the pilot to change its course or destination, all
external doors had already been closed. They are not yet in
the air, but the aircraft is already deemed to be in flight
because all external doors had already been closed
following embarkation. They are just there on the ground
waiting for their time to really take off. Therefore, he is
liable for violation of RA 6235.
Q: What if he fired upon the pilot? Will it give rise to a
separate and distinct charge?
A: No, it will only qualify the penalty for hijacking.
A: PAL arrived at NAIA Terminal 2. PAL came from Hong
Kong. The passengers and the cargoes had already
disembarked. Thereafter, a new set of passengers were
already boarding. X, also a passenger, while embarking,
instead of going to his seat, grabbed the flight attendant
and thereafter pointed an icepick. He held the flight
attendant as hostage, then, X went to the pilot and
ordered the immediate closure of the doors of the
aircraft. He instructed the pilot to change its course to
Mainland China instead of going to Hong Kong.
Otherwise, he will stab and kill the flight attendant.
However, the authorities were alarmed so they
immediately went inside and thereafter arrested X.
However, before he was arrested, he first stabbed the
flight attendant. Is X liable under RA 6235?
A: No, X is not liable under RA 6235. PAL is not yet in flight.
Other passengers were still boarding the plane. X just
happened to be one of the passengers who boarded the
plane first when he held the said flight attendant as hostage.
Since the aircraft is not yet deemed to be in flight because
all its external doors are still open and receiving passengers
who are still embarking, then, RA 6235 would not apply.
Q: What then would be the crime committed?
A: He can be held liable for the crime of murder. It was
deliberately planned by him. He threatened the pilot to do
Criminal Law Review
Prosecutor Victoria C. Garcia
an act against his will by means of intimidation. Therefore,
he can also be charged with the crime of grave coercion.
However, not under RA 6235.
TITLE TWO – CRIMES AGAINST FUNDAMENTAL
LAWS OF THE STATE
Q: What are the 3 kinds of arbitrary detention?
A:
1. Arbitrary detention under Art. 124 - by detaining a
person without legal ground;
2. Arbitrary detention under Art. 125 - committed by
failure of the public officer to deliver the detained
person to the proper judicial authorities within 12,
18 or 36 hours; and
3. Arbitrary detention under Art. 126 - by delaying
the release of prisoners despite the judicial or
executive order to do so.
ARTICLE 124 – ARBITRARY DETENTION
ELEMENTS:
1. The offender is a public officer or employee;
2. He detains another; and
3. The said detention was without legal ground.
In order for the detention to be considered illegal, it is
necessary that it is without any valid act or authority.
For arbitrary detention to lie against the offender, it is
necessary that there is a manifest intent on the part of the
public officer to put restraint on the person or liberty of the
offended party. It need not be physical restraint. The mere
act of instilling fear on the part of the said persons, such
that, if they would leave the place something would happen
to them.
ARTICLE 125 – DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL AUTHORITIES
ELEMENTS:
1. The offender here is a public officer or employees
vested with authority to effect arrest and detain a
person;
2. That offender has detained a person for some legal
ground; and
3. The said public officer or employee fails to deliver
that person arrested to the proper judicial
authorities within:
a. 12 hours, for crimes punishable by light
penalties, or their equivalent;
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b. 18 hours, for crimes punishable by
correctional penalties, or their equivalent; or
c. 36 hours, for crimes punishable by afflictive or
capital penalties, or their equivalent.
Unlike in Art. 124, here there must be some legal ground. In
case of Art. 124, at the outset arbitrary detention is
committed because the arrest and detention were without
legal grounds. However, in Art. 125, at the outset, the arrest
and detention is based on legal grounds. The crime,
however, arises when the said public officer or employees
fail to deliver him to the proper judicial authorities within
the period prescribed by the law.
The said valid grounds for arrest and detention are those
valid grounds for a valid warrantless arrest. This will not
apply if the arrest and detention of a person is based on a
warrant of arrest issued by the court. Since the order was
issued by the court, you no longer have to deliver the person
arrested to court because necessarily, a case has already
been filed.
Art. 125 does not contemplate a situation wherein the
public officer arrested the offender based on a warrant of
arrest issued by the court. This refers to instances wherein
the public officer arrested another based on a valid
warrantless arrest.
In the Rules of Court, any peace officer or private citizen,
even without a warrant, may arrest another when:
1. In his presence the person to be arrested has
committed, is actually committing or is attempting
to commit an offense;
2. When an offense has just been committed, there is
probable cause based on personal knowledge of
facts and circumstances that the person to be
arrested has committed the crime; or
3. When the person to be arrested is an escapee from
the penal institution or the place where he is
temporarily detained or when he escaped while
being transferred from one penal institution to
another.
Once arrested based on a valid warrant of arrest, he should
be immediately delivered to the proper judicial authorities
within the period prescribed by law. Otherwise, Art. 125 is
committed.
Delivery to the proper judicial authorities means filing
the appropriate case before the proper court.
Q: Why is it necessary that after a valid warrantless
arrest, the public officer is mandated to immediately
file the case before the court?
A: So that the court can determine whether he may fix the
bail or not and allow the said accused to go out on
temporary liberty. He cannot just be placed behind bars, he
Criminal Law Review
Prosecutor Victoria C. Garcia
should be given the opportunity to post bail in case the
crime committed is a bailable. Only the proper judicial
authority, the court, that can do that. Hence, the case must
be filed before the proper courts.
The said public officer or employee fails to deliver that
person arrested to the proper judicial authorities within:
a. 12 hours, for crimes punishable by light penalties,
or their equivalent;
b. 18 hours, for crimes punishable by correctional
penalties, or their equivalent; or
c. 36 hours, for crimes punishable by afflictive or
capital punishment, or their equivalent.
When the law use the phrase "or their equivalent", it
means Art. 125 applies also even if the crime is a violation
of a special penal law. Even if it is a violation of a special
penal law, the said public officer or employee arresting an
accused based on a valid warrantless arrest is still obligated
to deliver him within the equivalent period as provided for
under the RPC.
ARTICLE 126 – DELAYING RELEASE
The last kind of arbitrary detention is under Art.
126, arbitrary detention by failing to release a prisoner
despite a judicial or executive order to do so.
The offender is a public officer or employee. There is a
judicial or executive order for the release of a prisoner,
however, despite the said order or even a petition for the
liberation of a prisoner, the said public officer or employee
unduly delays the release of the said prisoner.
Q: What kind of delay is being punished?
A: A delay, which is not based on a justifiable ground,
without a valid reason.
If the said public officer did not release the said prisoner
based on legal grounds, based on valid grounds, he cannot
be held liable under Art. 126. Here, what is being punished
is the delay to the compliance to the judicial or executive
order without any legal reason.
Example of a judicial order for the release of a prisoner:
After trial on the merits, the court acquitted the accused.
Upon his acquittal, there would be, let us say he was charged
with the crime of murder, an order of release.
Example of an executive order for the release of a
prisoner: A prisoner is said to be a suspect was allegedly
arrested in flagrante delicto committing a crime. The case
was brought before the Office of the Public Prosecutor for
inquest purposes. Upon reading the complaint, the Fiscal
said, "no cause" and then, thereafter, "no probable cause".
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The Fiscal then immediately ordered the dismissal of the
case. The said order of dismissal coming from the public
prosecutor is an executive order for the release of the
prisoner.
Q: What if X was walking, while X was walking, here
comes police officers. They got out of their car and they
arrested X. X said “What I have done?”. Police officers
said “You are the primary suspect in the crime for
robbery with homicide that took place in the Makati
Subdivision a month ago.” He was brought at the police
station. He was placed behind bars. He was being
ordered to admit. When he refused admit, the following
morning, he was found tied to the unlighted electric
post with the note “I am a murdered, I am robberor” and
two gunshot wounds on his head. Are the police officers
liable for arbitrary detention?
A: No, that was not their intent. It is necessary that their
manifest intention is to detain the person and to put a
restrain on his liberty. Their obvious intent was to kill X.
Therefore, they cannot be held liable for the crime of
arbitrary detention.
At the outset, the manifest intent of the police officers was
to put a restrain on his liberty. But, their obvious intent was
to kill. If their intention was not kill X, the latter would not
have been found on the electric post tied with two gunshot
wounds on his head.
Q: What if the police officers were patrolling and they
saw X. At that time, X was acting suspiciously. Police
officers stopped him but X ran. So, the police officers
chased him. They were able to caught X and while inside
the police car, they found a dried marijuana leaves. This
was brought to the PNP lab crime, and it was proved
that it was indeed dried marijuana leaves. So, he was
charged with illegal possession of dangerous drugs.
However, since the time he was arrested happens to be
Saturday, morning. Fiscal’s office was closed. Sunday,
there is no work. Monday was declared to be no work
day because of typhoon. The said person was delivered
to the fiscal’s office on Tuesday. On Tuesday, there was
still no work because of the typhoon but there were
people inside the Public Prosecutor’s office. Here
comes the police officers, X was charged with illegal
possession of illegal drugs. Fiscal found probable cause
so, an information was filed before the court. The
counsel of X filed a case for violation of Article 125
contending that his client was detained within the
period prescribed by law. The police officers countered
that they complied but the fiscal’s office was closed. It
was only on Tuesday that they found a public
prosecutor. The second argument does not apply to
violation of SPL. Are the arguments of the police officers
tenable?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: The first argument is correct. They filed the case within
the prescribed period under Article 125. The period of 36
hours does not run because the court was closed. Since the
courts were closed on Saturday, Sunday, Monday, the police
officers complied with the period prescribed by law. X was
brought to the proper judicial authorities within the period
prescribed under Article 125 of the RPC.
The second argument has not merit. Article 125 applies
even to violation of SPL. It does not only apply to felonies
but also to offenses. Whatever be the crime committed, the
police officers have to file the case within the period
prescribed under Article 125.
Q: What if, X was caught in the act of selling drugs (2
plastic sachets), so he was charged with illegal sale.
While he was being brought to the police station, he was
asked to remove his entire clothing. Inside his brief,
police officers found 5 plastic sachets. Hence, he was
also charged with illegal possession of dangerous
drugs. The fiscal filed the information before the court.
However, at the office of the clerk of court, the two cases
were raffled to two different courts. RTC Branch 89 –
illegal selling; RTC Branch 29 – illegal possession.
Although X has money to post bail, illegal sale is a non-
bailable offense. The trial on the merits ensued. Insofar
as illegal possession is concerned, the RTC
provisionally dismissed the case for failure of the
prosecution to prosecute for 6 months. There was an
order for immediate release of X unless there is another
pending case against X. This was received by the jail
warden. Despite receipt of this order, the jail warden
did not release the X. Is the jail warden liable under
Article 126 of the RPC?
A: No, he has a valid ground for not complying with the
order of the court. This is because X was being detained for
another case, which is illegal sale of dangerous drugs in RTC
Branch 89, which happens to be a non-bailable offense.
Therefore, the jail warden is correct in not complying with
the order of RTC Branch 29 because there is another
bailable offense.
What is being punished by law is the failure to release him
despite the judicial or executive order without any
justifiable grounds.
ARTICLE 127 - EXPULSION
ELEMENTS:
1. Offender is a public officer or employee
2. The public officer or employee acts either:
a. By expelling a person from the Philippines;
b. By compelling a person to change his
residence
3. Offender is not authorized to do so by law.
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This will not apply to public officers who are authorized by
law to expel a person from the Philippines (like the
President) to compel a person to change his residence (like
judges). Thus, judges can include in his decision the change
of person’s residence. If a person is convicted of a crime and
the penalty imposed upon him is destierro, then he has no
choice but to change his residence. Judges cannot be held
liable for expulsion because they have the authority to do
so.
ARTICLE 128 – VIOLATION OF DOMICILE
ELEMENTS:
1. The offender is a public officer or employee;
2. He was not authorized by a judicial order to enter
the dwelling and/or make a search therein for
papers or other effects;
3. He either:
a. Enters the dwelling of another against the
will of the latter; or
b. Searching for papers or other effects found
therein without the consent of the owner; or
c. After having surreptitiously entered the
dwelling, being discovered and asked to
leave, he refuses to leave.
Q: Who is the offender?
A: A public officer or employee acting under color of
authority. He is acting under color of authority when he is
authorized by law to implement or to enforce a search
warrant. However, at the time he conducted the search, he
was not armed by the search warrant. A judicial order
coming from the court refers to a search warrant.
Q: What are the ways in committing violation of
domicile?
A:
1. By entering any dwelling against the will of the
owner thereof; or
Entry against the will of the owner means that there must
be an opposition or prohibition from entering. This can be
express or implied.
An example of implied opposition is when the door of the
house is closed, impliedly the owner does not want anyone
to enter his house even if he is a public officer, unless such
public officer is armed with search warrant.
An example of express prohibition is that there is a note “NO
ENTRY”, “NO TRESPASSING, or upon seeing the public
officer, he immediately closed the door.
Criminal Law Review
Prosecutor Victoria C. Garcia
2. By searching papers or other effects found
therein without the previous consent of the
owner; or
Even if a public officer or employee is allowed by the owner
to enter his house, such permission to enter does not mean
his also permitted to conduct the search unless he is armed
with a search warrant.
If the police officer is not armed with search warrant, he
must first secure the consent of the owner before
conducting any search. If the police officer proceeded with
the search without the consent of the owner, he becomes
liable for violation of domicile.
3. By refusing to leave the premises, after having
surreptitiously entered the dwelling
He will only become liable if the owner discovered him to
have entered the latter’s dwelling and the owner ordered
him to leave but he refuses to leave. It is the refusal to leave
upon discovery of his surreptitious entering the dwelling
that will give rise to violation of Article 128.
The crime of violation of domicile is qualified if the said act
is committed in the following circumstances:
1. Nighttime, or
2. If any papers or effects seized were not
immediately returned to the owner.
The public officer is punished for violation of domicile
because when he conducted the search and he entered the
premises of another, he is not armed with a search warrant.
Q: A police officer was conducting a surveillance in the
person of X. X was just new in the place. The police
officers took notice that upon his transfer, selling of
drugs and drug addiction became rampant in the place.
So, the police officers got a tip. In the house of X, many
people were coming in and out. The police officers
started conducted surveillance. PO1 W was assigned to
conduct the surveillance. He dressed in civilian attire.
One time, he saw the gate was left opened. He entered.
But, the door was closed. Although the door was closed,
he tried to open and he was successful. He went to the
sala, there was silence but he could hear voices
upstairs. Suddenly, the owner came down and shouted
“Who are you?”. To prevent any commotion, W
immediately left. Is he liable for violation of domicile?
A: Yes. He is a public officer. He is not authorized by judicial
order to enter the dwelling of X. He entered the dwelling of
X against the will of the latter. There was an implied
prohibition to enter because the door was closed even if the
gate was opened. When he entered the dwelling of X
without any search warrant, he becomes liable for violation
of domicile under Article 128.
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Q: What if, in the same case, after conducting
surveillance, W found that drugs were being unloaded
in X’s house. So, the police officer went back to his office
and dressed in his police uniform. Police officer went to
the house of X and knocked. X opened the door and said
“What can I do for you?”. Police officer W “Would you
allow me to enter?”. X acceded. Upon entering the
house, W said that he wanted to conduct an
investigation in the house of X. X said “Do you have
search warrant?”. W said that “I have no search
warrant.” X said “You cannot conduct a search. But, W
lifted the sofa and there he saw a shabu. Thereafter, W
left and brought to the police station. X called his
counsel and file a violation of domicile. Is W liable?
A: He is a public officer. He is not armed with a search
warrant. The second act is present because although he was
permitted to enter the house, when he conducted the
search, X refused and protested. When X protested and W
proceeded, W violated Article 128. The drugs confiscated by
him were the product of an unlawful search. Therefore, they
are considered as fruits of poisonous tree and inadmissible
in evidence. It does not only affect the credibility of
evidence but also the admissibility of evidence because they
were the product of an unlawful search.
ARTICLE 129 - SEARCH WARRANTS MALICIOUSLY
OBTAINED AND ABUSE IN THE SERVICE OF THOSE
LEGALLY OBTAINED
ARTICLE 130 – SEARCHING DOMICILE WITHOUT
WITNESSES
Under Art. 128, it is violated because a police officer
conducted a search in the absence of a search warrant.
However, there are instances were the public officer
violated the domicile even if he is armed with a search
warrant. These instances are provided under Art. 129 and
130.
COMMITTED THROUGH:
I. By procuring a search warrant without just cause;
(Article 129)
It is without just cause when it is maliciously procured. It is
maliciously procured when any of the requisites for the
issuance of a search warrant is absent.
Requisites for the issuance of search warrant:
1. It is required that it is for one specific offense;
2. There must be probable cause;
3. The said probable cause was determined by the
issuing judge personally through searching
questions and answers in writing, under oath or
affirmation as the testimony given by applicant of
Criminal Law Review
Prosecutor Victoria C. Garcia
the said search warrant or any witnesses he may
produce;
4. The applicant of the search warrant and his
witnesses must testify only as to facts personally
known to them; and,
5. The said search warrant must specifically state the
place to be searched and the thing to be seized.
If any of the following requisites are absent, the search
warrant is procured without just cause. The search warrant
is maliciously obtained.
II. By exceeding his authority; or, (Article 129)
The police officer received a search warrant “People v. X –
you are hereby commanded to search this place and bring
before the court the things to be seized, on this particular
date and time.” The SC said that the search warrant must be
specifically worded because the police officers enforcing
the search warrant is not allowed to exercise discretion.
They must follow the letter of the search warrant. If there is
no time, it can only be done at daytime. Any deviation from
the description in the search warrant would be considered
violation of domicile.
III. By using unnecessary severity in executing a search
warrant legally procured. (Article 129)
After the conduct of search warrant, there is affidavit of
search. It must be signed by the owner of the domicile and
there is a statement that “the search was done in an orderly
manner” and “the police officers cannot use force or
intimidation.” Otherwise, the police officer who conducted
the search will be liable for violation of domicile.
IV. Committed by conducting a search in the absence of
the owner of the house, or any member of his family, or
two witnesses residing in the same locality. (Article
130)
If the owner of the house was present, he should be the one
who shall witness the conduct of the search. No need for any
person. It is only in his absence that member of his family
or the two witnesses residing in the same locality can
witness the conduct of the search.
XPN: In case of drugs under RA 9165. If what is the subject
of search is drugs, under Section 21, the following must be
present:
1. Presence of representative from DOJ or media; and,
2. Any elected public official
Q: In their village, there was a new family, headed by W,
who transferred. The police officer was suspicious of
this family because many cars and living luxuriously.
Police officer X believed that this family was engaged in
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something. He tried to conduct surveillance but he did
not find anything. He went to the RTC judge and he
declared under oath that this family is engaged in arm
smuggling. The judge believed him and issued the
search warrant. X together with 5 police officers went
to the house of W and conducted the search. W refused
because there is no arm inside my house. W
immediately called his counsel and the barangay to
witness the search. The search ended with nothing. W
was so mad. What may be the case filed against X?
A: X may be charged for violation of Article 129. Reason is
the search warrant was procured without just cause. Police
officer X testified falsities and not facts. Therefore, he is
liable for violation of Art 129, under par. 1.
Likewise, he is liable for perjury because under oath he
testified that he conducted surveillance and it is positive
that W is engaged in arm smuggling. Therefore, he could
also be charged with perjury.
Therefore, 2 cases may be filed. The perjury is the necessary
means to secure the search warrant. Even if perjury was the
necessary means in order to secure to the secure the search
warrant, you cannot complex it. This is because under Art.
129 prevents complexity of crimes. The penalty for violation
of domicile shall be in addition to the penalty imposed by
law against the public officer for any commission of other
crime.
Casimiro vs. Galvante
Q: The crime charged was illegal search. They searched
a vehicle and they found arms. Is there a crime of illegal
search of vehicle?
A: No. it is not a punishable act. The crime of illegal search
in case of violation of domicile under Article 128, 129, and
130. There is nothing in the RPC that punishes violation of
vehicle or car. It is necessary that the illegal search must be
done in a domicile or dwelling, not inside a car.
ARTICLE 131 – PROHIBITION, INTERRUPTION AND
DISSOLUTION OF PEACEFUL MEETINGS
ELEMENTS:
1. The offender is a public officer or employee
2. The offender committed any of the following acts:
a. By prohibiting or by interrupting, dissolving,
without legal ground, the holding of a peaceful
meeting, or by dissolving the same. (any
peaceful meeting);
b. By hindering any person from joining any
lawful association or from attending any of its
meetings; or,
c. By prohibiting or hindering any person from
addressing, either alone or together with
Criminal Law Review
Prosecutor Victoria C. Garcia
others, any petition to the authorities for the
correction of abuses or redress of grievances.
These acts are punishable because they go against the bill of
rights. Hence, when committed by public officer or
employee and done with abuse, they are considered as
criminal acts.
It is necessary that the meeting was done peacefully;
otherwise, the police officer has the right to dissolve the
same. Likewise, the association or meeting must be for valid
purpose; otherwise, the police officer has the right to hinder
a person from joining the meeting.
ARTICLE 132 – INTERRUPTION OF RELIGIOUS
WORSHIP
ELEMENTS:
1. This is committed by an offender who is again a
public officer or employee.
2. Then there is a religious ceremony or
manifestations of any religion that is about to take
place or are going on.
3. That the offender prevents or disturbs the said
religious worship or religious ceremony.
If the said act was committed by means of violation or
threat, the penalty is qualified. Therefore, if the act was
done by means of intimidation, you do not file a separate
charge for grave threat. It is simply violation of Article 132
with a penalty which is qualified.
ARTICLE 133 – OFFENDING THE RELIGIOUS FEELINGS
ELEMENTS:
1. Offender is any person;
He could be public officer or employee, or any private
individual. This is the felony under Title 2 where the
offender can be any person. Reason is whether the offender
is a public officer or employee, or a private individual, if the
act is committed, the offended party would feel the same.
The kind of offender is immaterial.
2. That the acts must be notoriously offensive to
the feelings of the faithful.
These acts go against the dogma, ritual, practice of a
particular religion and the offender ridicules, mocks, or
causes damage to the object of veneration of the said
religion.
It should be notoriously offensive. It means that it would
offend not only a particular religion but also all other
religions.
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3. The said offender performs acts:
a. in a place devoted to religious worship, or
b. during the celebration of any religious
ceremony.
If the said act was committed inside a church, even if there
was no religious ceremony, the crime will already arise.
BAR Q: There was a mass. Police officer X and his family
attended the mass. After the mass, he would go to the
police station. After the reading of the gospel, started
the homily. The priest was attacking the men in
uniform because of EJK. Police officer was in uniform.
Everybody was looking at him. He went to priest
“Father, it would be good if you would just concentrate
in the gospel.” Father did not mind the police officer. He
held his right waist where his service firearm is located,
and he told the father “I will pull this if you will not
stop.” The people got out of the church. Is police officer
X liable under Article 131, 132, or 133? (7 points)
A: He is not liable under Article 131 because it is necessary
that the public officer must not be a participant to the
gathering. Here, he is participant in the religious act.
He is not liable under Article 132 because it is necessary
that the public officer must not be a participant to the
gathering. Here, he is participant in the religious act.
He is not liable under Article 133 because he did not mock,
ridicule any doctrine, ritual, practice of the Catholic religion.
He did not cause damage to any object of veneration of the
Catholic.
Q: Same problem. What then is the crime committed by
police officer X?
A: He is liable for other light threats by threatening another
by the use of a weapon under Article 285. His act is directed
against the priest for attacking the men in uniform. There is
light threat because he used his pistol. Hence, he is liable
under Article 285.
Criminal Law Review
Prosecutor Victoria C. Garcia
APRIL 28, 2021
TITLE THREE – CRIMES AGAINST PUBLIC ORDER
ARTICLE 134 – REBELLION OR INSURRECTION
Ocampo vs. Abando
Political offense doctrine is the same as the theory of
absorption. According to J. Leonen, he concurs with the
decision. The theory of absorption should not be applied if
the crime committed is crime of genocide or crimes against
humanity, just like what happened in this case. This is
already a case against humanity because so many people
died.
ELEMENTS:
REBELLION is committed when the following elements are
present:
1. Public uprising and taking up of arms;
2. Purpose of the said uprising or movement is to
attain any of the following:
I. To remove from allegiance to the
Philippine government or its laws:
i. Territory of the PH or any part
thereof
ii. Any body of land, naval, or other
armed forces
II. To deprive the chief executive or Congress
wholly or partially of any of their powers
or prerogatives
The gravamen or the essence of the crime of rebellion is an
armed public uprising, therefore, it is necessary that there
must be a public uprising done by the civilians, done by the
public, and it is always coupled with taking up of arms.
ART. 134-A – COUP D’ETAT
This is committed when any member of the military or the
police, or those holding public office or employment, with
or without civilian support, commits a swift attack,
accompanied by violence, intimidation, threat, or assault;
directed against the duly constituted authorities of the
republic of the Philippines, military camp or installations,
communication networks, or other facilities or utilities
needed for the exercise and continued possession of powers
carried out singly or simultaneously anywhere in the
Philippines for the purpose seizing or diminishing State
powers.
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The gravamen or the essence of coup d’état is a swift attack they are already on trial. Supreme Court said NO, because
directed against the duly constituted authorities of the the said case which is before the RTC, has not yet begun,
republic of the Philippines. therefore, there is no evidence to show in what manner it is
connected with the ideals of the rebels.
The following are the distinctions between rebellion and
coup d’état: Although Justice Leonen concurred with the decision,
according to him, when it comes to crimes against humanity
REBELLION COUP D’ETAT such as genocide—in this case there was a mass killing,
The gravamen is a swift there was this graveyard found in Leyte with many people
attack against the duly killed—it cannot be considered as absorbed in the crime of
The gravamen is an armed
constituted authorities of Rebellion based on the political offense doctrine. It cannot
or public uprising be said that one of the reasons for the said rebellion is to kill
the Republic of the
Philippines these people. Therefore, according to him, any crimes
All that is required is that against humanity cannot be absorbed by rebellion, by coup
it be committed by any d’etat under the political offense doctrine or theory of
member of the military, absorption.
It is a crime of the masses,
the police, or any public
it requires a multitude of Q: What if there was armed encounter in Lanao, in the
officer or employee;
people, the participation mountains of Lanao, members of the AFP, met suddenly
participation of civilians is
of civilians members of the NPA. There was this exchange of gun
immaterial, they may or
may not participate in the fires. In the course thereof, members of the military
said act were shot and a result some of them died and also some
The intent is always to are fatally wounded, but when brought to the hospital,
overthrow the they survived. When reinforcement arrived, the
The intent is to diminish members of the NPA were arrested, as a result, the
government and replace it
State powers members of the NPA were charged before the office of
with the government of
the rebels the public prosecutor of Lanao del Norte of the crime of
Can be committed only by Not necessarily committed murder and multiple frustrated murder. The members
means of force and by means of force and of the NPA argued that if ever they should be charged in
violence because the violence, it can be Court, it should be only for one crime, and that is
public uprising must be committed by means of rebellion. According to them, what happened was a
carried out by using intimidation, strategy, chance encounter. It was not an act of ambush.
firearms strength Accidentally, the two groups met and therefore there
was this exchange of gun fires and in their counter-
Whether it is rebellion or coup d’etat, there is this so called affidavit, they attached sworn statements of the people
theory of absorption in rebellion. This is also known as living therein, saying that it was a chance encounter.
the political offense doctrine. They are just one and the The members of the NPA did not ambush the members
same. As held in the case of Gonzales v. Abaya, there is of the armed forces. Despite this argument and
theory of absorption. In the case of Ocampo v. Judge Abando, attachments, the public prosecutor still charged these
it is political offense doctrine. Under this doctrine, common members of the NPA of murder and multiple frustrated
crimes which are committed in furtherance of, incident to, murder. And so, when the Informations were filed
or in connection with rebellion or coup d’etat will be before the trial court, they moved the quash the same,
considered as absorbed in such latter crimes. But before the arguing that it should only be rebellion. Since it was
commission of these common crimes may be considered as denied, the case went to the Supreme Court via petition
absorbed, it is necessary that there must be evidence for certiorari. What is the proper charge? Is it murder
showing in what way the commission of these common with multiple frustrated murder or is it rebellion?
crimes has fostered, has promoted, the ideals of the rebels. A: SC said, since the cases are in the initial stage of the
Absent that connection, then it will give rise to two separate proceedings, the proper charge would be murder and
and distinct charges. multiple counts of frustrated murder. SC said, before the
theory of absorption would lie, such that rebellion would be
In the case of Ocampo v. Judge Abando, Justice Leonen absorbing these acts of killing and fatally wounding the
concurred with the decision of the Chief Justice that the armed forced of the Philippines, there must first be
political offense doctrine would not lie. However, his presentation of evidence in court to show, to establish in
reasoning is different. The reasoning of the Chief Justice is what manner the said killing has promoted the ideals of the
that the motion or the petition of Saturnino Ocampo and NPA. It is still in the initial stage, in fact there was not even
company that their case, the case of multiple murder charge arraignment, there are no evidence presented in court
against them, be absorbed with the rebellion case for which HENCE, how can the court determine such connection?
Hence, it cannot YET be absorbed by rebellion. SC further
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stated, if in the course of the hearing of the case, upon
presentation of the defense evidence, they were able to
establish that indeed the said act of killing was done to
promote the ideals of the said NPAs, then SC said, the proper
thing for the public prosecutor to do is to withdraw the case
and replace with a new case of rebellion to conform with the
pieces of evidence presented in court. But right now, it
should first be murder and different counts of frustrated
murder.
Q: X, a member of the NPA, was having coffee in this
particular place in Quezon, in a small store, he drinking
coffee, sitting, about a little before 6:00AM. The sun was
not yet out. Here comes police officer Y. Police Officer Y
passed by, he was in his police uniform on his way to
office. X saw him while drinking coffee. X put down his
coffee, and there thereafter he surreptitiously followed
Y. Before Y was able to enter the station, X repeatedly
stabbed Y. Y was able to shout for help, the other police
offers came out of the office, and they saw Y wounded,
bloodied. They ran after X and they were able to arrest
X. X was charged with the crime of murder. However,
his allegation is that (1) he is a member of the NPA, (2)
he did the said act of killing, stabbing Y in order to
promote the ideals of the rebels. What is the proper
charge?
A: It should be murder and not rebellion. Mere self-serving
statement on the part of the accused that he is a member of
the NPA, that he did the act of killing to promote the ideals
of the rebels will not suffice. There must be further evidence
presented in court to show in what manner he did the said
act of killing in order to promote the said ideals of the
rebels. Therefore, it should first be considered as murder.
ARTICLE 139 - SEDITION
ELEMENTS:
1. That the offender rise; (1) publicly, and (2)
tumultuously
2. That they employ force, intimidation or other
means outside of legal methods;
3. That the offenders employ any of those means to
attain any of the following objectives:
a. To prevent the promulgation or execution of
any law or the holding of any popular election
b. To prevent the National Government, or any
provincial or municipal government, or any
public officer thereof from freely exercising its
or his functions, or prevents the execution of
any administrative order;
c. To inflict any act of hate or revenge upon the
person or property of any public officer or
employee;
Criminal Law Review
Prosecutor Victoria C. Garcia
d. To commit, for any political or social end, any
act of hate or revenge against private persons
or any social class; and
e. To despoil, for any political or social end, any
person, municipality or province or the
National Government of all its property or any
part thereof
Just like rebellion, sedition requires that there be public
uprising. Therefore there must be the participation of
civilians. However, unlike rebellion, sedition does not
require that the public uprising be coupled with taking up
of arms. All is required is that the public uprising be done to
tumultuously, carried outside lawful means. Sedition is just
like your ordinary protest. If there is any issue, you see the
members of the Anakbayan, members of any other
organization holding rallies.
Q: Why is it that there is no sedition?
A: Because they ask permit from the city government. And
since they were given this permit, the said uprising or
protest is regulated in this place, during this period of time
only. It is not carried outside lawful methods. But the
moment that they stage said rally without permit, outside
lawful methods, they will become liable for the crime of
sedition.
Insofar as rebellion is concerned, the purpose is always
political in nature. These rebels wanted to overthrow the
government and to replace it with their own government—
the government of the rebels. Whereas in case of sedition,
the purpose is not necessarily political in nature. The
purpose can be social in nature—to go against a public
officer or employee, to go against what the government
wants to promulgate, to go against what the government
wants to implement. So it could either be political or social
in nature.
There is such a crime conspiracy to commit rebellion, there
is conspiracy to commit sedition, there is conspiracy to
commit coup d’etat. There is proposal to commit rebellion.
There is proposal to commit coup d’etat. But, there is no
proposal to commit sedition. Proposal to commit sedition is
not a punishable act under the RPC, under any other SPL.
There is such a crime as inciting to rebellion, there is such a
crime as inciting to sedition, but there is no such crime was
inciting to coup d’etat.
ARTICLE 138 – INCITING TO REBELLION
ELEMENTS:
The elements of inciting to rebellion are as follows:
1. It is committed by any person who does not take up
arms or is not in open hostility with the
Government;
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2. He incites others to uprise for any of the purposes
of rebellion (incite others to the execution of any of
the acts of rebellion)
3. By means of speeches, proclamations, writings,
emblems, banners or other representations
tending to the same end.
ARTICLE 142 – INCITING TO SEDITION
ELEMENTS:
The elements of inciting to sedition are:
1. The offender is not a participant (does not take
direct part) in the crime of sedition
2. He incites others to publicly uprise for any of the
purposes of sedition
3. By means of speeches, proclamations, writings,
emblems, cartoon, banners, or other
representation tending to the same end.
For one to liable for inciting to rebellion, inciting to sedition,
it is necessary that the said person is not a participant in a
rebellion or sedition that is on-going. Because if he is
already a participant, the proper case to be filed against him
would be rebellion or sedition, because is a party thereof.
Q: What if there is a rebellion on going, so, many were
trying to overthrow the government, there was
rebellion in Metro Manila, as well as in Cebu, as well as
in parts of Mindanao. So rebellion was everywhere,
there was public uprising carried out by means of
taking up of arms—intention was to take over the
present administration. In the said public uprising
ongoing in Metro Manila, among the participants
therein was X. So there was this mass of people, here
comes a truck, full of police officers, they got out of the
said truck, and they ran after these people, these people
were running, the police officers were able to catch and
chase. X was arrested, he was frisked. On his waist they
found a pistol. They confiscated the said pistol, it has no
license. As a result X was charged with two crimes: (1)
rebellion and (2) illegal possession of loose firearms
under R.A. 10591. Are the charges correct?
A: The charges are wrong. The proper charge would only be
rebellion, and his use of a loose firearm is only absorbed.
NOTE that it is not an aggravating circumstance. What is
applicable here is Sec. 29 (2) of R.A. 10591. If the use of such
firearm is incident to, in furtherance of, or in connection
with rebellion or insurrection or attempted coup d’etat,
such use of loose firearm shall simply be absorbed.
Therefore, the proper charge would only be rebellion. The
use of the loose firearm shall be considered as absorbed.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: What if there was this seditious rally carried outside
of lawful methods on going. Let’s say because many
people were not in approval of the way the government
was handling the pandemic and so there was this rally
all over the country. There was one in Metro Manila.
Among the participants was X. In this mass gathering, a
truck filled with police officers arrived, they chased
these people and X was arrested. When X was frisked,
he was found in possession of a loose firearm. And so he
was charged with two crimes: (1) sedition, and (2)
illegal possession of loose firearms. Are the charges
correct?
A: The charges are correct. This time, what is applicable is
Sec. 29 (3) of R.A. 10591. It is no longer Sec. 29(2) because
under the 2nd par only the crimes of rebellion, insurrection,
and attempted coup d’etat may absorb the crime of illegal
possession of loose firearms. In the former law, sedition
was included as among the crimes that would absorb. In this
new law, sedition is no longer included. Therefore, what will
apply will be the 3rd par. If the use of a loose firearm is not
inherent in the commission of the crime, such use shall
constitute as a separate and distinct charge. The use of a
loose firearm is not inherent in the crime of sedition, since
the use of such loose firearm is not an element in the crime
of sedition. Therefore, it will constitute a separate and
distinct charge. In this case, X was correctly charged with
(1) sedition, and (2) illegal possession of loose firearm
under R.A. 10591.
ARTICLE 145 – VIOLATION OF PARLIAMENTARY
IMMUNITY
There are two ways of violating parliamentary
immunity:
1. This one is punished by Prision Mayor, committed
by any person who by means of force, intimidation,
fraud or threat, or any other means and by said
means, he tried to prevent any member of the
Congress either from attending any meeting of the
Congress or its committees or subcommittees,
constitutional commissions or committees or
divisions thereof, from expressing his opinions or
casting his vote.
• In this first act, the offender can be any person.
2. In the second act, this is only committed by a public
officer or employee who shall, while the Congress
is in regular or special session, arrest or search any
member thereof, except in case such member has
committed a crime punishable under this Code by
a penalty higher than prision mayor.
• If the crime committed by a congressman, if the
crime committed by a senator, if the crime for
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which he is charged in court carries a penalty
not higher than prision mayor, and he was
arrested while congress was in its regular or
special session, that arresting public officer
EVEN IF he is armed with a search warrant,
EVEN IF he is armed with a warrant of arrest,
is liable for violation of parliamentary
immunity.
• Reason is, according to the Constitution, these
members of Congress voted by the people,
elected by the people, cannot be disturbed in
the performance of their functions for crimes
which carry penalties not higher than prision
mayor.
Q: Let us say, senator X was charged with a crime of
murder, or with a crime of rape, while he was there in
the session hall of the Senate, the police officers armed
with a warrant of arrest arrested him. Are the police
officers liable?
A: The police officers are not liable. The penalty for rape is
higher than prision mayor. Same with murder. Therefore,
anytime, they can be arrested without the said public
officers being liable for violation of parliamentary
immunity.
ARTICLE 146 – ILLEGAL ASSEMBLY
Illegal assembly is committed in any of the follow manner:
FIRST MODE. Any meeting attended by armed persons for
the purpose of committing any of the crimes punishable
under the RPC.
The elements are as follows:
1. That there be a meeting, a gathering or group of
persons, whether in fixed place or moving
2. The meeting is attended by armed persons; and
3. The purpose of the meeting is to commit any of the
crimes punishable under the Code
Under the first mode, when the law says ‘armed persons’,
‘armed men’, it means that these persons were carrying
anything that can be used to cause violence or injury. It is
not necessary that they be carrying firearms, pistols, guns.
Anything that can cause violence, injury like piece of wood,
lead pipes, baseball bats, all intended to injury another, that
will suffice.
And when the law says that ‘it must be attended by armed
persons’ the law does not require that all those in
attendance be armed. It suffices that any or some or many
of them be armed.
SECOND MODE of committing illegal assembly, there is a
meeting in which the audience, whether armed or not, is
incited to the commission of the crime of treason, rebellion
Criminal Law Review
Prosecutor Victoria C. Garcia
or insurrection, sedition or assault upon a person in
authority or his agents.
Under the second mode, there is no requisite that the
person in attendance be armed. What is required is that
these persons in attendance must be incited to commit
treason, rebellion or insurrection, sedition, or assault upon
a person in authority.
ARTICLE 147 – ILLEGAL ASSOCIATION
FIRST ASSOCIATION. Associations totally or partially
organized for the purpose of committing any of the crimes
punishable under the RPC.
- Under the first kind, it is exclusive to crimes punishable
under the RPC.
SECOND ASSOCIATION. Associations totally or partially
organized for some purpose against public morals.
- Under the second kind, it could a crime punishable
under the RPC or a violation of a special penal laws, for
as long as it is against public morals, that is, it is against
public interest.
Q: X, Y, and Z, former high-ranking officers of the AFP,
they needed money. The pension had been delayed, the
work/business was down, so X, Y and Z sent invitations
to about 20 former/retired AFP members that they
have a meeting in this particular place. Said meeting
was stated in the invitation. On the said date and time,
these former members arrived, and then thereafter, X,
Y and Z arrived. They were there, gathered. And, X, Y
and Z arrived, and upon arrival, they were about to
discuss to these 20 men, the act of committing robbery
or the act of staging a coup, or the act of staging a
rebellion. They are not yet decided, but, they have to do
something. However, even before X, Y, and Z were able
to speak, here comes members of the PNP, based on
their intel, someone informed them that there is a
meeting in this secluded place. And so, they
immediately arrived and arrested X, Y, and Z, as well as
these 20 former members of the military. They brought
them to the PNP station. What case or cases may they
file against X, Y, and Z and the 20 people?
A: NONE. X, Y and Z and the 20 people have not yet
committed any crime. It cannot be illegal assembly under
the first act. Reason is, there is no mention in the problem
that any of them is armed. Second, although the intent of X,
Y, and Z would be to propose a violation; a commission of
the crime under the RPC, they have not yet stated it. It is still
in their mind. In the said gathering, they have not yet
relayed the said message. Likewise, it cannot be the second
act of illegal assembly. Reason is, the people were not yet
incited for whatever thing X, Y, Z wanted them to do. They
are not yet liable for any crime. It is a mere preparatory act
to whatever crime they want to commit. Therefore, they are
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not yet liable. And, although the intel was correct, there was
this meeting, however the PNP were too early in the act of
going there, hence, XYZ cannot be charged for the
commission of any crime under the RPC.
Q: But what if, let us add facts in the same problem, so X
Y Z sent notes to the 20 members of the AFP and then
thereafter they arrived in the said secluded place. In
said place, X Y Z proposed to them, we have talked to
present members of the AFP and all of them with the
President’s handling of the Chinese Invasion of the
West Philippine Sea. It seems that the President was not
declaring to China that ‘this is ours/this is for the
Philippines’ (hahaha prosec being shady). As you can
see that the Defense Secretary Lorenza is already mad
at the Chinese and we in the AFP are also mad because
it seems as if the President was not doing anything so it
is time to replace this government. That was the
proposal made by X Y Z. And so they said we have to
hold a public uprising. We have to decide on the date
and the time. And we have to gather as many members
of the AFP as possible. And so they planned, and then
thereafter, X Y Z told them, do not worry about the
arms. Our high-ranking members who are present in
the AFP promised to provide the necessary firearms so
that we will win. And the 20 former members agreed. At
that particular moment, the members of the PNP
arrived at the place, and arrested X Y Z and the 20 men.
What case may be filed against X Y Z?
A: They can be charged with the crime of illegal assembly.
There is a meeting, there is a gathering of a group of persons
either in a fixed place or moving. In here, it is in a fixed and
secluded place. And these 20 people who were the audience
thereof, were incited to commit the crime of rebellion.
Regardless of whether they are armed or not because arms
were still coming, they are already liable for illegal
assembly under Art. 146 (2).
ARTICLE 147 – DIRECT ASSAULT
There are two ways of committing direct assault.
FIRST. Without public uprising, by employing force or
intimidation for the attainment of any of the purposes
enumerated defining the crimes of rebellion and sedition.
- So if the intent of the offender is to attain the purposes
of rebellion and the purposes of sedition, but it is not
accompanied by a public uprising, the liability would be
direct assault under Art. 147.
SECOND. Without public uprising, by attacking, by
employing force, or by seriously intimidation or
seriously resisting any person in authority or any of his
agents, while in the performance of official duties, or on
the occasion of such performance.
- This is the more popular form of direct assault.
Criminal Law Review
Prosecutor Victoria C. Garcia
- The elements are:
o FIRST, the offender makes an attack, employs
force, makes a serious intimidation or serious
resistance
▪ If the attack, or if the force is employed on a
person in authority, it need not be serious in
nature. Because under Art. 148, the mere act
of laying hands upon a person in authority
will already qualify the penalty
▪ If the person subject of the assault or the
attack is an agent of a person in authority, for
direct assault to lie, it is necessary that the
said attack, that the said employment of force
must be serious in nature, must be grave in
nature. Hence, in the case of People v. Mallari,
since the said act of the woman kicking and
kicking the legs of the police officer and the
police officer said, “hindi naman masakit”, the
SC said it is not the attack being referred to
that would amount to direct assault.
Therefore in that case, the said accused was
not convicted of direct assault.
▪ So if it is an agent of a person in authority, the
attack, the employment of force must be
serious in nature in order to find defiance in
lawful authority.
o SECOND, that the person assaulted is either a
person in authority or an agent of a person in
authority
▪ For purposes of Arts. 148 and 149, under Art.
152, the following are deemed to be persons
in authority:
• Any person directly vested with
jurisdiction whether as an individual or
as a member of some governmental
corporation, board, or commission
• A barangay captain or chairman
• Teachers
• Professors
• Persons charged with the supervision of
public or duly recognized private
schools, colleges, and universities, are
also deemed to be persons in authority
• Lawyers in the actual performance of
their official functions
▪ Agents of persons in authority (Art. 152[2])
• Any person who, by direct provision of
the law, by election, or by appointment
make competent authorities charged
with the maintenance of public order
and the protection and security of life
and property such as:
o Councilman
o Police Officers
o Any persons coming to the aid of a
person in authority
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o THIRD, that at the time of the assault, the person
in authority or the agent is engaged in the
performance of his official functions or the assault
was on the occasion of such performance of official
function
▪ There are two situations or instances
wherein direct assault would arise: (1) when
said person in authority or agent was
assaulted at the actual time that he was doing
his function, that he was doing his duty.
Automatically, regardless of the intent of the
offender, it is immediately direct assault.
Lack of respect to a person in authority or his
agent. He was performing his duty when he
was assaulted. (2) when at the time of the
assault, the person in authority was not in the
performance of his duty. Direct assault would
still lie, if the reason behind the assault is the
said person in authority or agent’s past
performance of his official duty. The law used
the phrase “on occasion of such performance
of his official duty”. The use of such phrase
means that the reason behind the assault was
the person in authority or the agent’s past
performance of his official duty.
o FOURTH, that the offender knows him to be a
public authority or an agent of a person in
authority
▪ The essence of the crime is defiance of lawful
authority, lack of respect to lawful authority.
Therefore, it is necessary that the offender
knows that the one he is assaulting is a
person in authority or an agent thereof.
Otherwise, how can it be said that he has the
intent to defy lawful authority. It suffices,
however, that the person he is attacking is
engaged in the actual performance of his
official function.
o LASTLY, that there is no public uprising
THE FOLLOWING CIRCUMSTANCES WILL QUALIFY
DIRECT ASSAULT:
1. When the assault is done with the use of a weapon
2. When the said offender is a public officer or
employee
3. When the offender lays hands upon a person in
authority.
These are the circumstances that will qualify the imposable
penalty.
The first and the second circumstance, it is immediately
qualified direct assault. Regardless of who the victim is,
whether the victim is an agent of a person in authority or a
person in authority himself, the moment a weapon is used
in the assault, the moment the offender is a public officer or
employee, it is already in the qualified form.
Criminal Law Review
Prosecutor Victoria C. Garcia
However, the third qualifying circumstance, will only lie if
it is committed against a person in authority. Laying of
hands to qualify direct assault will only lie if the victim of
the said laying of hands is a person in authority. Mere laying
of hands to an agent of a person in authority will not qualify
direct assault. In fact, it will not even result to direct assault
as held by the Supreme Court in the case of Mallari v. People.
If in the commission of direct assault, another felony
resulted, by assaulting the person in authority; such person
died; such person was fatally wounded although he
survived; such person was injured—you always complex
direct assault with the said resulting felony, because
direct assault is the reason behind the said felony. So we
have direct assault with murder, direct assault with
homicide, direct assault with frustrated homicide, direct
assault with serious physical injuries, direct assault with
less serious physical injuries. But if by reason of the said
direct assault, the injury sustained by the person in
authority or by the agent is only a slight physical injury, a
light felony, then it is simply absorbed. It will not be
considered as direct assault with slight physical injury.
Because the moment someone is assaulted, definitely, at
least, a slight injury will be produced, hence it is simply
absorbed.
Q: What if the mayor was inside his office. The mayor
was busy, signing some documents piled up. Here
comes X, X has a medical certificate and he told the
secretary, “I am here to ask help from the mayor. My
son is very sick and needs operation.” And so, he
showed the said medical certificate to the secretary.
The secretary gave him P500.00. X said, “No, I wanted
to talk to the mayor himself. I want to ask for more. My
son will die without the operation. I need to talk to
him.” Although the secretary told him to leave because
the mayor was busy, X insisted to wait. The secretary
could not do anything. And so the secretary went inside
the Mayor’s office and said, “Mayor, someone is waiting
for you outside. He does not want to leave, he said he
wanted to talk to you because his child needed an
operation and he would be needed financial assistance
from you.” And the Mayor said he will just finish what
he is doing. After signing all the documents, the Mayor
told the secretary to let X in. And, the Mayor allowed X
to get inside the office and, after shaking hands, the
Mayor told X to sit on the chair. X handed to the mayor
the medical certificate. While the Mayor was busy
reading the medical certificate, X stood up, went to the
Mayor, and without any warning, repeatedly stabbed
the Mayor. X was about to leave, but because of the
panic, the commotion on the part of the secretary who
saw what happened, X was arrested. What crime is
committed?
A: The Mayor is a person in authority. At the time of the
assault, he was in the performance of his duties. In fact, he
was inside his office. Therefore, regardless of X’s motive, it
is immediately direct assault. Obviously, it was planned.
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Obviously, X deliberately adopted the ways, means, and
methods in order to kill the said mayor. Therefore, there is
treachery. Hence, the crime would be direct assault with
murder. And, X made use of a knife. He repeatedly stabbed
the Mayor until the Mayor died. Since there was the use of a
knife, then it will be qualified. The crime committed is
qualified direct assault with murder.
Q: What if in the very same problem, after the said
mayor was stabbed, X left, and the secretary asked,
cried for help. Immediately, the bodyguards of the
mayor arrived and the mayor was brought to the
hospital. Through immediate medical operation, the
said mayor survived despite the fatal wounds inflicted
on him. What crime or crimes is/are committed by X?
A: Again, same reasoning, the said mayor is a person in
authority, he was in the performance of his function at the
time of the assault therefore, it is immediately direct assault
regardless of X’s motive. And the said accused inflicted fatal,
mortal wounds. But the mayor survived, therefore it will be
direct assault with frustrated murder because obviously the
act of killing was attended by treachery. Since the weapon
was used, it will be qualified, hence, the crime committed is
qualified direct assault with frustrated murder.
Q: What if, let us say that a judge convicted an accused
in a case. So judgment was promulgated, the clerk of
court read the decision, and the said accused in the
hearing in the name of X was convicted. After that, the
judge banged the gavel and thereafter the hearing for
the day ended. The judge decided to go home. It was a
conviction, heavy on his heart, but that is what the
evidence showed and established therefore it is a
conviction. So he boarded his van, he was the one
driving the van. The judge was already making a u-turn,
going to his house, when suddenly there was this
motorcycle. The said motorcycle suddenly went infront
of the van of the judge. And, the back rider of the said
motorcycle, repeatedly fired at the judge with the use of
an armalite. When the judge had fallen on his seat, both
the rider of the motorcycle as well as the back rider got
out of the motorcycle, fired at the door of the van,
opened it, and repeatedly fired at the judge, ensuring
his death. The said persons Y and Z were arrested. Y and
Z were the brothers of X, whom the judge convicted that
day. And they had to kill the judge as an act of revenge
because of his conviction of their brother. What crime
or crimes is/are committed by Y and Z?
A: The judge, under Art. 152 is deemed to be a person in
authority. At the time of the assault, he was on his way home
therefore he was no longer engaged in the performance of
his function. Since he is no longer engaged in the
performance of his function, you now have to know the
motive on the part of the offender Y and Z. If the motive in
killing the judge was because of the latter’s past
performance of his function, the crime committed is still
direct assault. But, if the motive is a personal one, it will only
be direct assault (NOTE: yan talaga sabi ni Prosec pero feel
Criminal Law Review
Prosecutor Victoria C. Garcia
ko homicide to dapat). Here, the motive of Y and Z was
because of the judge’s previous conviction of their brother
X, therefore, the act of Y and Z in killing the judge was
because of the judge’s past performance of his official duty.
Therefore, the crime committed is direct assault. The judge
died, so it will be direct assault with murder. Weapons were
used, so qualified direct assault with murder.
Q: But what if, the judge was on his way home and he
was driving his van, he was sad for having convicted
someone, but since that is what the evidence
established, he has to do his job, he has to continue. He
is sad, and he was driving in such a manner that he lacks
energy. As a result, he hit another car. But only a slight
hit. Gasgas lang. And so, that man from the other car
immediately alighted. And then thereafter, that man
said, “Ano ka ba?! Nakatingin ka ba?! Nagmamaneho ka
ba?!” and that man was very mad. The judge was very
apologetic. However, the man went back to his car, the
man took a knife, went back to the judge, and stabbed
the said judge. The judge died. What crime is committed
by the said man?
A: The judge is a person in authority. At the time of the
assault, he was no longer engaged in the performance of his
duty. He was on his way home. Since the judge was no
longer engaged in the performance of his duty, we have to
know the motive on the part of the said person in killing the
judge. The motive was a personal one, a traffic altercation.
And it has nothing to do with the performance of the duty of
the said judge, therefore, the said person is liable for the
crime of homicide. The said person cannot be liable for the
crime of direct assault because the said act of killing was not
on the occasion of the judge’s performance of his duty. It
was not by reason of his past performance of his duty
therefore, it is plain and simple, homicide.
Q: What if the judge, let us say that the judge just
rendered his decision for that day. The judge convicted
the accused. Of course since the accused was inside the
courtroom, his handcuffs were taken away from him.
His hands were free. The moment the clerk of court
announced finding the accused guilty beyond
reasonable doubt of the crime of murder, upon hearing
reclusion perpetua, X became very mad. X suddenly
jumped out of the courtroom, on to the judge, and he
immediately boxed and boxed and boxed the said
judge. Everybody inside the courtroom were so
confused at what was happening, they were so shocked,
they could not move! Until, here comes one of the
persons therein in the audience by the name of W. W
immediately jumped and held the hands of the said
accused X and prevented him from further attacking
the judge. By reason thereof, X turned his ire on W, and
he boxed and boxed W. It was only then that the security
guards of the place arrived, and the security guards
arrested X. The judge was brought to the hospital, W
was also brought to the hospital. The judge sustained
injuries would heal within a period of 20 days. Whereas
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insofar as W is concerned, the injuries would heal
within a period of 2 days. What crime or crimes is/are
committed by X?
A: Insofar as the judge is concerned, the judge is a person in
authority, at the time of the assault, he was engaged in the
performance of his functions. Therefore, the crime
committed by X would be direct assault. Since the judge
suffered less serious physical injuries, you complex it—
direct assault with less serious physical injuries. And it is
qualified by X’s act of laying hands on the said judge, who is
a person in authority.
Insofar was W is concerned, the judge, a person in authority,
is a victim of direct assault. And here comes W, W came to
the aid of the said judge, a person in authority who is a
victim of direct assault. Under Art. 152(2) if a person comes
to the aid of a person in authority who is a victim of direct
assault, that person is deemed to be an agent of a person in
authority. Therefore, because W came to the aid of the
judge, a person in authority who is a victim of direct assault,
W is deemed to be an agent of a person in authority. Hence,
when X attacked W, X is attacking one who is deemed to be
an agent of a person in authority therefore the crime
committed is still direct assault.
The wounds sustained by W would heal within 2 days, it is
only slight, therefore X insofar as W is concerned, would
liable for direct assault. Even if X laid hands on W, it will not
qualify. Because W is only deemed an agent of a person in
authority.
Q: What if the said police officer was walking, he was
charged to look for persons who were disobeying the
ordinance in the municipality that required everyone
to wear masks, that everyone should wear a face shield.
And so police officer X was walking, trying to see if there
are persons who are violating and telling the people to
please observe the rules provided for in this ordinance,
that all people should wear a face mask, all people
should wear a face shield. So he was going around
alone, performing his duty, when suddenly, he saw this
group of men. This group of men, A B C D and E, they
were talking to each other. They were on the other side
of the street. Police officer X went to said side of the
street because police officer X observed that all these
men have no facemasks and faceshields. Some of them
have, but already on the neck (hahaha prosec lowkey
shady 2.0). So he went to these men, and he told these
men, “excuse me, but I want you to know that there is
an ordinance being implemented, it was passed by the
sanggunian, and everybody is required to wear a face
mask and a face shield. Otherwise, I have to arrest you
for violating the said ordinance, and you will be fined.
So you better wear the facemask and the faceshield.” All
except A put on their facemask and face shield. A told
the police, “EH BAKIT SINO KA BA?!” And he was so mad
at X. X said, “Okay, you are under arrest.” However, A
refused to be arrested and what he did was he boxed
Criminal Law Review
Prosecutor Victoria C. Garcia
and boxed the said police officer. Because of the
suddenness of his attack, X was down on the ground, he
was about to take his pistol, but A was quick enough to
take away the said pistol from the hands of the said
police officer and he threw it. And then thereafter,
when he was continuously attacking the police officer,
B, one of them men therein, “Tama na, tama na.” He
tried to stop A from further attacking X, but A got mad
at B and so A boxed and boxed B as well. Thereafter,
other policemen came and arrested A. X was brought to
the hospital, as well as B. X’s injuries would heal in a
week. Insofar as B is concerned, these would heal
within 3 days. What crime or crimes is/are committed
by A?
A: The said police officer is an agent of a person in authority.
He is deemed to be an agent of a person in authority
according to Art. 152(2). Therefore, when A attacked X, he
is attacking an agent of a person in authority, who at that
time, was engaged in the performance of his duty—
reprimanding him, telling him to observe the law, telling
him to observe the said ordinance. Therefore, when he
attacked the said police officer, he becomes criminally liable
for direct assault. It resulted only to a light felony, slight
physical injuries, therefore the crime committed is only
direct assault. You cannot complex it with slight physical
injuries. Even if A laid hands on police officer X, it will not
qualify therefore the crime committed is direct assault.
Insofar as B is concerned, who is person who came to the
aid of the said police officer who was being attacked, A is
liable for indirect assault. Here, the said police officer X, was
a victim of direct assault. Someone came to his aid, and that
is B. And A, the offender, also employed force and
intimidation on the said person who comes to his aid
therefore, the crime committed is direct assault insofar as
the injuries A inflicted on B is concerned. Since it is only
slight physical injuries, it is absorbed in the crime of indirect
assault.
ARTICLE 150 – DISOBEDIENCE TO SUMMONS
Art. 150 punishes disobedience to summons.
FIRST, by refusing, without legal excuse, to obey summons
issued by the Congress or any of its extensions or any of its
standing committees or subcommittees, by the
Constitutional Commissions, its committees,
subcommittees or any other body which has the power to
issue summons.
- Under this first act, what is being punished is refusal
without any excuse. If the said summoned by Congress
has a valid reason, he was suffering from hypertension,
he was confined at St. Lukes, and the doctor said, you
cannot go there, your blood pressure might rise and
you might die, then he has a valid reason. He cannot be
held liable under this article.
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SECOND, by refusing to be sworn or placed under
affirmation while being before such legislative or
constitutional body or official.
- Under this second act, he received the summons, he
appeared, but he refused to be sworn in to tell the truth
and nothing but the truth. He becomes liable under this
article.
THIRD, by refusing to answer any legal inquiry or to
produce any books, papers, documents, or records in his
possession, when required by them to do so in the exercise
of their functions.
- Under the third act, he received the summons, he
appeared, he allowed himself to be sworn in to tell the
truth and nothing but the truth, however, when being
asked, he refused to answer. He no longer wanted to
answer.
- Usually, this happens, right? You have seen, if you
watch ANC, they always make public the hearings in the
Senate. There are some persons invited who refuse to
answer. If the reason is that it would incriminate them,
then, the Congress will no longer pursue with the said
question.
Q: Based on the questioning, so X was invited, and so he
was summoned, he appeared, the Congressmen were
able to make A admit that all the books in this
anomalous transaction, were inside his house.
According to him, the moment the said administration
ended, the moment he ended his office, he brought
along these books inside his house. And so he was told
by the committee chair to bring the books next
scheduled hearing, Next scheduled hearing, he did not
bring the books. And so they were mad, however, he
said, “I’m sorry your honor, per advise of my counsel, I
cannot bring the books, because if I will bring the
books, it might incriminate me therefore I am invoking
my right against self-incrimination.” And so because of
that, said Congress cannot do anything anymore. What
should be done for Congress to have these books which
will shed light on the said anomalous transaction?
A: Congress must apply for a search warrant. If the court
gave them the said search warrant, they can go to the house
of this person and search the place and get the said pieces
of documents. In that way, there is no more violation of the
law because it is based on a search warrant validly issued
by the court.
FOURTH, by refusing another from attending as a witness
in such legislative or constitutional body.
- He restrains or he prevents another from attending as
a witness.
FIFTH, by inducing disobedience to a summons or refusal
to be sworn by any such body or official.
- He also incites or induces others not to obey the
summons.
Criminal Law Review
Prosecutor Victoria C. Garcia
These are the acts punished as disobedience to summons.
Congress has the power to issue summons. Reason is, they
have the power to conduct legislative inquiry. For what
purpose? It is not for the purpose of filing a case in court,
but only in aid of legislation, to better the laws that they are
enacted. Therefore, with this purpose to investigate comes
the power to issue summons to person who can shed light
on the subject of investigation.
ARTICLE 151 – RESISTANCE AND DISOBEDIENCE TO
A PERSON IN AUTHORITY OR THE AGENTS OF SUCH
PERSON
Under Art. 151, there are two acts: (1) resistance and
serious disobedience, and (2) simple disobedience.
In resistance and serious disobedience, a person in
authority or an agent of a person in authority is engaged in
the performance of his function or gives a lawful order. And
the offender seriously, resists or disobeys said order. BUT,
the said resistance or said disobedience does not amount to
direct assault, indirect assault, or disobedience to
summons.
The other act punished is simple disobedience. In case of
simple disobedience, an agent of a person in authority is
engaged in the performance of his functions or gives a
lawful order, and the offender disobeys the said order but
such disobedience is not serious in nature.
Q: So how would you distinguish the two?
A:
RESISTANCE AND
SIMPLE DISOBEDIENCE
SERIOUS DISOBEDIENCE
The one giving the order is
The one giving the order is
either a person in
only an agent of a person
authority or an agent of a
in authority
person in authority
Resistance must be It is not required to be
serious in nature serious in nature
In the case of Sydeco v. People, the SC acquitted Sydeco of
the crime of violation of Art. 151. Supreme Court said, none
of the elements are present. First element, that a person in
authority or an agent of a person in authority is engaged in
the performance of his function or gives a lawful order. SC
said, the order given by the said police officers to Sydeco, to
alight from his car, to alight from his van, because he will be
subjected to a search as well as a van search, that is not a
lawful order. Sydeco was not caught in the actual act of
committing a crime. He was not caught in flagrante delicto
therefore, the police officers have no right to search his
person, to search his van. The first element is immediately
absent. Second element is also absent. The refusal of Sydeco
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to be subjected to a search and his van to be searched, disturbed or interrupted the interrupted the
insisting on plain view, is but an exercise of his right. interrupted the peaceful peaceful
Therefore, it cannot be considered as serious disobedience said peaceful meeting, who meeting, who
or resistance. Therefore, SC said, all the elements being gathering must interrupted the interrupted the
absent, the accused is not liable for violation of Art. 151. be a participant religious religious
in the said worship, must be worship, must be
gathering. an outsider, a an outsider, a
ARTICLE 153 – TUMULTS AND OTHER stranger to the stranger to the
DISTURBANCES said gather or said gather or
religious religious
Art. 153 punishes tumults and other disturbance of public worship. worship.
order. The following acts are punished under this article: The purpose is The purpose of The purpose of
only to cause the offender is to the offender is to
FIRST. By causing any serious disturbances in a public disturbance of prohibit a person prohibit a person
place, office or establishment public order. from freely from freely
- Under this act, for this to be considered as violation of exercising his exercising his
Art. 153, it is necessary that when the offender went to freedom freedom
the said public place, he already has with him the intent enshrined in the enshrined in the
to cause disturbance, to cause serious disturbance constitution. constitution.
THEREFORE, he planned it when he went there. He
already planned to cause said serious disturbance. Transcriber’s note: in case you were wondering, Art. 131 and
132 are really the same. Prosec said, “…whereas, in Arts. 131
SECOND. By interrupting or disturbing performances, AND 132.”
functions or gatherings, or peaceful meetings if the act is not
included in Arts. 131 and 132. THIRD, By making an outcry tending to incite rebellion or
- Under this act, there is a qualification. The said sedition in any meeting, association, or public place.
interruption or disturbance of public meetings must
not amount to violations of Art. 131 (prohibition, FOURTH, By displaying placards or emblems which may
interruption, dissolution of peaceful meetings) and provoke disturbance of public order in such meeting,
must not amount to violation of Art. 132 (interruption association, or public place.
of religious worship). - Under the third and fourth act, it is necessary that the
outcry, the display of placards or emblems, must result
Q: Where lies the difference between Art. 153 v. Art. 131 only from some unconscious outburst of emotion.
v. Art. 132? When they participated in the said meeting they had no
A: intention to incite the people to rebel, they had no
intention to incite the people to stage a seditious crime.
ART. 153 ART. 131 ART. 132 That was not their intent. Otherwise, the crime would
The offender can The offender The offender be inciting to rebellion, inciting to sedition. But because
be any person. must necessarily must necessarily of the circumstances that happened in the said meeting,
He can be a be public officers be public officers for some unconscious outburst of emotion, they stated
public officer or or employees or employees these subversive statements—outcry against the
employee, he can because it is a because it is a government which may cause rebellion or sedition.
be a private crime against the crime against the
individual fundamental law fundamental law LASTLY, By bearing with pomp the body of a person who
THEREFORE any of the State, Title of the State, Title has been legally executed.
person can II. II. - If a person is convicted of a heinous crime, and the
interrupt the penalty is death, and the state executed the death
said peaceful penalty, and then that person is buried with pomp—
meeting. with extravagance, as if he is a hero—the persons doing
the said kind of burial can be liable under Art. 153,
Q: What about if the said offender is a public officer? because in doing so, they are telling the people, the
What are the distinctions? public that the state committed a mistake in executing.
A: THEREFORE, it may cause disturbance of public order.
Hence, Art. 153 is violated.
ART. 153 ART. 131 ART. 132
The said public The public The public These are the acts punished as tumults and disturbance of
officer who officer who officer who public order. If the acts provided for under Art. 153 is

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committed by at least four (4) persons who are provided
with arms or any means of violence, it is said to be done
tumultuously.
ARTICLE 154 – UNLAWFUL USE OF MEANS OF
PUBLICATION AND UNLAWFUL UTTERANCES
The following acts are punished:
FIRST. By publishing or causing to be published by means
of printing lithography or any other means of publication,
as news any false news which may endanger the public
order, or cause damage to the interest or credit of the State.
- For Art. 154 to lie against the author, against the
publisher, it is necessary that the said author or
publisher knew it was false news. Nevertheless, they
published the same. However, there is an addition
criterion and that is, this false news must endanger
public order/public interest so hindi lahat ng false news,
papasa under Art. 154.
- It is necessary that it must cause damage to public
order, cause damage to public interest.
Q: Let us say that there is a false news about a senator
having an affair. It was published. Let’s say it was
published in Philippine Daily Inquirer, the said Senator
having an affair with another woman. It was false news,
‘yung tinatawag nilang nakuryente lang, nakita lang
magkasama, may affair na! So, the author, Daily
Inquirer knew it was false news nevertheless kakagat
‘yan, malakas ang benta, so, they published the same.
Can they be charged under Art. 154?
A: NO. They cannot be charged under Art. 154. Whether that
is true or not; whether that senator has another women or
not, has a mistress or not, it will not affect, endanger public
order, public interest. That is a personal act. The crime
would be on the part of the said senator, he can file a case of
libel against the said publishing company, against the
author, but not Art. 154.
SECOND. By encouraging disobedience to the law or the
constituted authorities or by praising, justifying or extolling
any act punished by law, by the same means of publication.
THIRD. By maliciously publishing or causing to be
published any official resolution or document without
proper authority, or before they have been published
officially.
- Under this act note that the law used the term
malicious. It is necessary that the publication of the
said official resolution or document must be done by
the offender with malice, deliberate intent to publish
the same despite lack of authority. If he did so, then he
becomes liable.
Criminal Law Review
Prosecutor Victoria C. Garcia
- But let’s say, out of negligence he publishes the same.
He cannot be held liable because the law used the word
maliciously.
LASTLY. By printing, publishing, or distributing or causing
to be printed, published or distributed, books, pamphlets,
periodicals, or leaflets which do not bear the real printer’s
name or which are classified as anonymous.
Q: Is there a law for spreading fake news?
A: You can only file this case (Art. 154) if it affects public
interest, you can file libel. There is a bill in Congress against
fake news. But, it has not yet become a law. It remains to be
a bill. So right now, the law only is this Art. 154 and if a
private person or any person is attacked, the privacy of your
life is attacked then you can file a case of libel, defamation,
etc. but we have yet no particular law against false news or
fake news.
ARTICLE 155 – ALARMS AND SCANDALS
The following acts are punished as alarms and scandals:
FIRST, by discharging any firearm, rocket, firecracker, or
other explosives within any town or public place calculated
to cause alarm and danger.
- Under this act, the discharge of firearm, firecrackers,
explosives… if the intention of the offender is to cause
alarm and danger, the crime committed is alarms and
scandals.
- If a firearm is discharged, depending on the intent of the
offender, the crime varies.
o If the offender discharges a firearm, aimed at
another person with intent to kill, even if that
person; even if that intended victim is not hit, the
crime committed is attempted homicide.
o If the said offender discharges a firearm in a public
place, in a town, his intention was to cause alarm
and danger, the crime committed is alarms and
scandal.
o If that person discharges a firearm, aimed at
another but there is no intent to kill, his intention
was only to threaten that person when he
discharged the firearm, the crime committed is
under Art. 254, illegal discharge of firearm.
- Therefore, the act of discharging a firearm may result
to different crimes depending on the intent of the
offender who discharge the said firearm.
SECOND, by instigating taking an active part in any
charivari or other disorderly meeting offensive to another
or prejudicial to public tranquility.
- CHARIVARI is a mock serenade that brings about noise,
then, the crime committed is a violation of Art. 155.
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THIRD, by causing disturbance of the public peace while
wandering about at night or while engaged in any other
nocturnal amusement.
Q: What about your neighbor? Birthday? Nag-hire ng
videoke. And had been singing from the morning until
the wee hours of the next morning, he has been singing
and singing and singing and you can no longer sleep.
Can he be charged with alarms and scandals?
A: The truth is YES. Pero sa totoong buhay, ‘yun ay
pinagpapasensyahan na lamang. Hindi kinakasuhan dahil
wala ding mangyayari (note: tawang tawa ako kasi ‘yung
tono ni prosec dito parang si Mike Enriquez ). If you go
to the MTC, many cases aside from violation of BP 22 is
alarms and scandals, because a police officer bawat makita
niyang gulo, he will arrest, alarms and scandals, then he will
not appear, then the case is dismissed. May mahuli lang. In
that case so, if that happens to you, pinagpapasensyahan
lang ‘yung kapitbahay.
FOURTH, by causing disturbance or scandal in public places
whether intoxicated or not, provided Art. 153 is not
violated.
Q: Where lies the difference between Art. 155 last act v.
Art. 153
A:
ART. 155 LAST ACT ART. 153 FIRST ACT
The disturbance caused by The act punished is causing
the offender is not serious any serious disturbance in
in nature, and he did not a public place, office, or
plan it. It just happened establishment. Note, the
because of the word must be serious
circumstances that took disturbance. Here, the
place in the said incident. disturbance caused by the
offender is serious in
nature and it is a planned
one.
Q: X and Y were playing, the group of X and the group of
Y were playing basketball. In this public place, a
basketball court, which was established by the
barangay, many were watching. The team of X lost. And
because of that he got mad at Y. He began scolding Y.
When Y left him, he began scolding the people around.
So there was commotion, he was shouting. There was
disturbance. The police arrived, and he was arrested.
What is the crime committed?
A: The crime committed is alarms and scandals and not
violation of Art. 153. Reason is: when X went there, he has
no intention to cause any serious disturbance. His intention
was to play basketball. But because of losing the game, he
caused disturbance, he caused this disturbance in the said
public place. Which is not serious in nature THEREFORE, it
Criminal Law Review
Prosecutor Victoria C. Garcia
is only alarms and scandals and not disturbance of public
order under Art. 153.
ARTICLE 156 – DELIVERING PRISONERS FROM JAIL
ELEMENTS:
The elements of delivering prisoners from jail are:
1. That there is a person confined in jail or any other
penal institution
2. That the offender removes him from jail or assist in
his escape from his escape in such penal institution.
Here, the prisoner being referred to can either a prisoner
convicted by final judgment or a mere detention prisoner
therefore, any prisoner. The offender who removes him
from the penal institution, the offender who assists him to
be removed from the penal institution can also be any
person. He can be a fellow inmate, he can be an outsider, a
private individual, he can be a public officer PROVIDED, he
is not the one in custody of the said prisoner. Because if he
is the one in custody of the said prisoner, and he
connives with the removal of the said prisoner from the
penal institution, then the crime committed is infidelity in
the custody of prisoners by conniving or consenting with
the escape of the prisoner under Art. 223. Or, if the prisoner
escapes by reason of his negligence, he is liable for infidelity
in the custody of prisoners under Art. 224, that is evasion
through negligence. So he must not be the custodian of the
said prisoner.
If the act of delivering prisoners from jail is attended by
violence, is attended by intimidation, is attended by the act
of giving bribe, the penalty will be qualified or aggravated.
Related to Art. 156 is Evasion of Service of Sentence under
Art. 157.
ARTICLE 155 – EVASION OF SERVICE OF SENTENCE
Here, (1) the offender is a prisoner convicted by final
judgment. (2) He must be serving his sentence which
involves deprivation of liberty. (3) And he evades service of
sentence by escaping during the term of his sentence. The
offender becomes liable of evasion of service of sentence.
In evasion of service of sentence, the offender is a prisoner
convicted by final judgment. He must be one convicted by
final judgment, THEREFORE, a mere detention prisoner
cannot commit evasion, WHATEVER MAY BE THE KIND OF
EVASION, whether it is by Art. 157, Art. 158, or Art. 159, the
offender in evasion must always be a prisoner convicted by
final judgment.
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A mere detention prisoner cannot commit evasion of
service of sentence because in the first place, he is not yet
sentenced. A mere detention prisoner is just there, behind
bars, because he happened to be a poor man, because he
cannot post the bail fixed by court, or the crime he
committed is a non-bailable offense. THEREFORE, while the
case is on-going trial, he is there behind bars. But he is not
yet sentenced, he is not yet convicted, THEREFORE, he has
no sentence to evade, he cannot commit evasion of service
of sentence.
So, evasion would only lie if the offender is a prisoner
convicted by final judgment.
Based on the second element, he must be service a sentence
which involves deprivation of liberty. This means that he is
behind bars. If the penalty imposed on him is destierro, he
can also commit evasion of service of sentence because
destierro also involves deprivation of liberty, because when
a person is sentenced with destierro, he is prohibited from
entering the place designated in the judgment of the court
THEREFORE, there is also deprivation of liberty. When he
enters the said prohibited place, he committed evasion of
service of sentence.
And, how did he commit the crime under the third act? He
escaped during the term of his sentence THEREFORE, he
must already be serving his sentence, and while serving his
sentence, he escaped from the New Bilibid Prison, from the
said penal institution, that is evasion of service of sentence.
The following circumstances would qualify the penalty
in evasion of service of sentence:
1. When the said escape is done by means of unlawful
entry
2. When the said escape is done by means of breaking
any wall, roof, floor, door or window
3. When the said escape is done by using picklocks,
false keys, disguise, deceit, violence, or
intimidation
4. When the said escape is done in connivance with an
inmate or employee of the penal institution
Any of these would qualify the penalty in evasion of service
of sentence.
Usually in the BAR, this is often asked, and usually the bar
examiner would combine Arts. 156, 157, and also Arts. 223
and 224.
Q: So X is a prisoner convicted by final judgment. He
wanted out of the penal institution. And so he relayed
this to his friend by the name of Y. Y, the friend,
promised X that he will be out. X was serving his
sentence by final judgment. Y the friend gave bribe
money to the custodian. And, the custodian, in need of
money, accepted the said amount. Let us say, P500,000.
But not only him, Y also gave bribe money to the said
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Prosecutor Victoria C. Garcia
guard at the front gate of the penal institution. And,
after giving the said bribe money to these two persons,
the custodian and the guard of the front gate of the
penal institution, that night, X a prisoner convicted by
final judgment, was able to leave the penal institution
successfully. He went to the house of Y. And, when he
went to the house of Y, Y harbored him and concealed
him. What crime or crimes is/are committed by X, by Y,
by the custodian as well as the guard at the front gate of
the penal institution?
A: Insofar as X is concerned, X is a prisoner convicted by
final judgment. Therefore, when he escapes during the term
of his sentence, he becomes liable for evasion of service of
sentence under Art. 157. And you may qualify the penalty
because he did so in connivance with the employee of the
institution, and that is, the custodian and the guard at the
said front gate of the penal institution.
Insofar as Y, the friend, is concerned, he is liable for FIRST,
delivering prisoners from jail. He assisted in the removal of
his friend from jail. How? By giving bribe money to the
custodian and to the guard at the gate therefore he is also
liable for corruption of public officials under Art. 212. And,
the moment X left the penal institution successfully, he
harbored him, therefore, he is also liable for obstruction of
justice under P.D. 1829.
Insofar as the custodian is concerned, the said public officer
custodian connives with the escape of the said prisoner
convicted by final judgment therefore he becomes liable for
Art. 223, infidelity in the custody of prisoner. As the
custodian, he is entrusted by law to be the one in charge, to
guard this prisoner. However, he was the one who allowed
this prisoner to leave. Therefore, he is liable for infidelity in
the custody of prisoners. Since he received the bribed
money given by the friend Y, the crime committed would
also be Direct Bribery under Art. 210. Bribery is the crime
committed by the public officer who receives the bribe. The
person who gives the bribe is liable for corruption of public
official that’s why Y the friend is liable for the same.
Insofar as the guard at the front gate of the penal institution
is concerned, he is not the custodian of X. Therefore, he
cannot be liable for INFIDELITY under Art. 223. Insofar as
he is concerned, he is liable for delivering prisoners from
jail, because he assisted in the removal of X from the said
penal institution by opening the gate of the said penal
institution and allowing X to leave. Since he accepted the
said bribe, in that case, he accepted the said bribe, money
given to him by Y, the said act of delivering prisoners from
jail will be qualified by his act of receiving the bribe.
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ARTICLE 158 - EVASION OF SERVICE OF SENTENCE
ON THE OCCASION OF DISORDERS,
CONFLAGRATIONS, EARTHQUAKES, OR OTHER
CALAMITIES
ELEMENTS:
1. That the offender is a prisoner convicted by final
judgment
2. That he is serving his sentence in a penal institution
3. That there is a disorder resulting from –
1. Conflagration
2. Earthquake
3. Explosion
4. Similar catastrophe
5. Mutiny in which he has not participated.
4. That the offender evades the service of his sentence
by leaving the penal institution where he is
confined, on the occasion of such disorder or
during the mutiny.
5. That the offender fails to give himself up to the
authorities within 48 hours following the issuance
of a proclamation by the Chief Executive
announcing the passing away of such calamity
In every evasion of service of sentence, the offender is a
prisoner convicted by final judgment. However, under
Article 158, there is an additional requirement that the said
prisoner convicted by final judgment must be confined in a
penal institution. Therefore, even if he is convicted by final
judgment and the penalty imposed upon him is destierro,
Article 158 will not apply.
Although he is allowed to leave in times of calamity as the
State can no longer protect him, he is obligated to return
within 48 hours following the proclamation/declaration of
the Chief Executive that the calamity has passed.
If he fails to return, there is a corresponding penalty.
If he returned, there is a corresponding credit of sentence.
Q: X is a prisoner by final judgment and he is serving his
sentence at the New Bilibid Prison. Suddenly, there was
a strong earthquake and the prisoners were allowed to
leave. Several days thereafter, the president announced
on national television and over the radio that the said
earthquake had already lapsed and the President gave
a strict order saying that all those prisoners who left the
penal institution must return within 48 hours. X,
despite hearing the order, did not return and went into
hiding. The police looked for X. After a year, they were
able to locate and arrest X. What is the effect of such act
of X on his criminal liability?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: X shall be charged with violation of Art. 158 for Evasion
of Service of Sentence in times if calamity or disorder. In
case of conviction, he shall be sentenced with a penalty
equivalent to 1/5 of the remainder of his sentence which
shall not exceed 6 months. He shall be charged in court.
Hindi lang basta idadagdag ang penalty.
Q: What if after hearing the order of the president, X
immediately went back to the prison authorities and
gave himself up. What is the effect of his criminal
liability?
A: There will be a deduction of 1/5 based on the term of his
sentence.
Q: What if X did not leave the penal institution and he
survived the earthquake?
A: There will be 2/5 deduction based on the term of his
sentence and this is known under Article 98 of the RPC as
special allowance for loyalty.
Q: There was a riot in New Bilibid Prison between 2
opposing gangs, AAA and BBB gang. X was a member of
the BBB gang. X did not participate in the said riot.
However, X took it as an opportunity to leave the penal
institution. With the help of a fellow inmate, W, he was
able to leave. X was asking W to go with him, but W
declined. That same afternoon after the said riot has
lapsed, there was a declaration coming from the
director of prisons saying that the riot had already
lapsed. The said director of prisons singled out the
name of X saying “X, we know you left during the riot.
We are ordering you to return immediately.” X then
surrendered himself to the prison within 48 hours from
the said declaration of the director of prisons. What is
the effect of X’s return?
A: It has no effect. He will not be given a reward or
deduction. A riot is not a catastrophe. It is not considered as
a calamity or disorder. Note that under Art. 158, it is
necessary that it must be a conflagration, earthquake,
explosion, similar catastrophe, or a mutiny in which he has
not participated. A riot is not a mutiny. A mutiny is an act
of insubordination done by the lower employees against a
superior authority. It is an act of insubordination done by
the employees of the penal institution against the head of
the penal institution (director of prisons). Here what
happened was a fight between 2 gang, which is a riot.
The moment X left the penal institution during the riot, he
immediately becomes criminally liable for evasion of
service of sentence under Art. 157. He left the prison cell
thereby evading the term of his sentence. Since what he
violated was Article 157, no amount of return would cause
a deduction on the penalty imposed on him. In that case, he
shall be charged for violation of Art. 157 Evasion of
Service of Sentence and it is in its qualified form
because his act of leaving the penal institution under
Art. 157 was done in connivance with a fellow inmate
(W). Therefore, the penalty would be aggravated.
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ARTICLE 159 - EVASION OF SERVICE OF SENTENCE
BY VIOLATION OF CONDITIONAL PARDON
ELEMENTS:
1. The offender was a convict.
2. He was granted a conditional pardon by the Chief
Executive/President.
3. He violated any of the terms of the said pardon.
The moment a convict has been granted conditional pardon
by the Chief Executive, he is bound to comply with all the
conditions or terms attached to the said pardon. The
moment he violates any of the terms attached to the grant
of the pardon, he becomes liable under Article 159.
He also cannot be given an indeterminate sentence. Under
the ISL, one of those disqualified to be given an
indeterminate sentence is a person who violated the
conditions of the conditional pardon granted.
*BAR QUESTION: Is violation of conditional pardon
under Article 159 a substantive offense?
A: You have to qualify as provided for under Article 159.
➢ If the penalty remitted by the grant of conditional
pardon does not exceed 6 years, for having
violated the conditions of his pardon, a new
penalty of prision correccional shall be
imposed on him. Therefore, in this case, Art. 159 is
a substantive offense.
➢ If the penalty remitted by the grant of conditional
pardon does exceeds or is more than 6 years,
even if he violated the terms of his pardon, no new
penalty shall be imposed. Rather, he will be
required to serve only the remainder of the
sentence. In that case, Art. 159 is not a substantive
offense because there is no new penalty imposed.
NOTE: In every kind of evasion, the offender is always a
prisoner convicted by final judgment. A mere detention
prisoner cannot commit the crime of evasion.
TITLE FOUR - CRIMES AGAINST PUBLIC INTEREST
ARTICLE 161 - COUNTERFEITING THE GREAT SEAL
OF THE GOVERNMENT OF THE PHILIPPINE ISLANDS,
FORGING THE SIGNATURE OR STAMP OF THE CHIEF
EXECUTIVE
ACTS PUNISHED:
I. Forging the Great Seal of the Government of the
Philippines.
II. Forging the signature of the President.
Criminal Law Review
Prosecutor Victoria C. Garcia
III. Forging the stamp of the President
ARTICLE 162 - USING FORGED SIGNATURE OR
COUNTERFEIT SEAL OR STAMP
The law punishes the person who despite knowledge that
this document contains the forged seal, forged stamp, or
forged signature of the president would still make use of the
same.
ELEMENTS:
1. That the Great Seal of the Republic was
counterfeited or the signature or stamp of the Chief
Executive was forged by another person.
2. That the offender knew of the counterfeiting or
forgery.
3. That he used the counterfeit seal or forged
signature or stamp.
ARTICLE 163 - MAKING AND IMPORTING AND
UTTERING FALSE COINS
The law punishes the counterfeiting of coins.
ELEMENTS:
1. That there be false or counterfeited coins.
2. That the offender either made, imported or uttered
such coins.
3. That in case of uttering such false or counterfeited
coins, he connived with the counterfeiters or
importers.
ACTS PUNISHED:
I. Counterfeiting - There is counterfeiting of coins
when the offender copies or imitates the peculiar
design of a genuine or authentic coin in order to
produce a spurious one out of it.
All coins may be the subject of counterfeiting for as
long as the said coin is genuine or authentic. It can
be a coin of present circulation, old or vintage
coins, or coins of foreign currency.
II. Importing false coins – It is committed when the
offender brings into Philippine ports any false or
counterfeited coins.
III. Uttering of false coins – There is uttering when
the offender circulates, passes from one person to
another, gives from one person to another these
counterfeited coins.
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ARTICLE 164 – MUTILATION OF COINS
Counterfeiting of coins is different from mutilation of coins
under Art 164.
Under Art.164, there is mutilation of coins when the
offender scratches off or scrapes a part of the metal of
content of the coin, and he gathers the metal dust that he
has taken off from the metal content of the said coin.
For the crime to arise, it is necessary that the coins
subject of mutilation must be of present circulation.
Therefore, if the coins mutilated is an old or vintage coin or
a coin of foreign currency, even if they are genuine and
authentic, the offender is not liable of mutilation of coins.
The reason is that even if the offender scratches a part of the
metal content of a coin of foreign currency or an old or
vintage coin, the public will not be deceived because it is not
in use by the public, because it is not used as a medium of
exchange.
ARTICLE 165 – SELLING OF FALSE OR MUTILATED
COINS, WITHOUT CONNIVANCE
Q: X, a mother, went to the public market, bought goods,
boarded a tricycle, and went home. The tricycle
stopped in front of her house and X paid the tricycle
driver two P10 coins. The driver looked at the coins and
said that the coins were fake. X was shocked because
that money was only given to her as a change when she
bought goods at the public market. The tricycle driver
immediately called the police and X was arrested. X was
charged with possession of counterfeited coins. Is X
liable as charged?
A: No. Although X was found in possession of the
counterfeited P10 coins, and in fact she uttered the same
(paid it as a fee to the driver), she lacks knowledge that
these coins were counterfeited. The coins were only given
to her as change for the things she bought at the market.
Since she lacks knowledge that the coins in her possession
were counterfeited, she cannot be held criminally liable for
possession of counterfeited coins.
ARTICLE 169 – HOW IS FORGERY COMMITTED
TWO WAYS OF COMMITTING FORGERY:
1.) by giving to a treasury or bank note or any
instrument payable to bearer or to order
mentioned therein, the appearance of a true and
genuine document.
Criminal Law Review
Prosecutor Victoria C. Garcia
2.) By erasing, substituting, counterfeiting, or altering
by any means the figures, letters, words, or sign
contained therein.
ARTICLE 168 – ILLEGAL POSSESSION AND USE OF
FALSE TREASURY OR BANK NOTES AND OTHER
INSTRUMENTS OF CREDIT
(Only the name of the crime was mentioned. I copied the
elements stated in the 2020 prosec notes)
ELEMENTS:
1. That any treasury or bank note or certificate or
other obligation and security payable to bearer, or
any instrument payable to order or other
document of credit not payable to bearer is forged
or falsified by another person.
2. That the offender knows that any of those
instruments is forged or falsified.
3. That he performs any of these acts –
a) Using any of such forged or falsified
instruments; or
b) Possessing with intent to use any of such
forged or falsified instruments.
ARTICLE 167 – COUNTERFEITING, IMPORTING, AND
UTTERING INSTRUMENTS NOT PAYABLE TO
BEARER
(Only the name of the crime was mentioned. I copied the
elements stated in the 2020 prosec notes)
ELEMENTS:
1. That there be an instrument payable to order or
other document of credit not payable to bearer.
2. That the offender either forged, imported or
uttered such instrument.
3. That in case of uttering, he connived with the forger
or importer.
FALSIFICATION (ART 170,171,172)
When it comes to documents, we call it falsification.
For the crime of falsification to be committed, it must be a
document in the legal sense of the word – one which is
capable of creating rights and/or extinguishing an
obligation. It must be complete by itself to convey a
particular meaning. Otherwise, falsification will not be
committed.
Q: X was along Taft Avenue, outside the premises of NBI.
X would ask every person who entered the NBI “Kukuha
ka ba ng cedula? Kukuha ka ba ng NBI clearance?”. X
was selling these community tax certificates and he
would tell the person “you would be needing a
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community tax certificate before you are allowed to get
an NBI clearance” and then that person would buy from
him. These community tax certificates that X had been
selling to the public are mere fake forms. They are not
the legitimate forms. X was arrested and charged with
falsification of public document. Is he liable as charged?
A: NO, he is not liable as charged because although what he
was selling were fake or falsified, they are not yet
considered documents in the legal sense of the word. They
are mere forms of community tax certificates or cedulas.
There is no name, address, signature. Since they are mere
forms, they cannot create rights nor extinguish obligations.
They are not competent evidence because there is yet no
facts stated therein. Therefore, X cannot be held liable for
falsification of public document. Rather, X should be held
liable under Article 176 – Possession of instruments or
implements for falsification. These falsified or fake forms of
community tax certificates are mere instruments or
implements which can be used for purposes of falsification.
FOUR KINDS OF DOCUMENTS WHICH MAY BE THE
SUBJECT OF FALSIFICATION:
1. PUBLIC DOCUMENT – one prepared and executed
by a notary public or a competent public official
with the solemnities required by law.
2. OFFICIAL DOCUMENT – a document issued by a
public official in the exercise of his official
functions.
3. COMMERCIAL DOCUMENT – any document
defined and regulated by the Code of Commerce or
any other mercantile law.
4. PRIVATE DOCUMENT – a document, a deed or
instrument executed by a private individual
without the intervention of the notary public or any
competent public official by which document some
disposition or agreement is proved, evidenced or
set forth.
It is necessary to know the kind of document falsified.
➢ If the document falsified is a private document, it
is necessary that there must be damage caused
to the offended party or to a third person or at least
the intent of the offender in falsifying the private
document is to cause damage. Without damage,
there is no falsification of private document. Why?
Because it is a crime against public interest.
➢ If the document falsified is a public, official, or
commercial document, even if there is no
damage caused, there will be a crime of
falsification. The reason is that public, official, or
commercial documents are said to be genuine and
authentic, and they are evidence of the facts stated
therein. Therefore, the moment they are falsified,
what is being punished is the offender’s perversion
of the truth being proclaimed by the said public,
official, or commercial document. Hence, damage is
Criminal Law Review
Prosecutor Victoria C. Garcia
not necessary to be proven in case of falsification of
public, official, or commercial document.
All official documents are public documents, but not all
public documents are considered official documents.
Before a public document may be considered as an official
document, it must be issued by a public official in the
exercise of his official functions.
In so far as private documents are concerned, even if they
are private documents, the moment they are submitted to a
government agency and then thereafter issued by the said
custodian of the said government agency, from a private
document, it is now considered a public document. If the
one issuing it is the official in charge, it is considered as an
official document.
ARTICLE 171 - FALSIFICATION BY PUBLIC OFFICER,
EMPLOYEE, NOTARY PUBLIC, OR ECCLESIASTICAL
MINISTER
ELEMENTS:
1. The offender is a public officer, employee, notary
public, or an ecclesiastical minister.
2. He takes advantage of his official position.
3. That the said offender falsifies a document by
committing any of the following modes stated
therein:
(a) By counterfeiting or imitating any
handwriting, signature or rubric.
(b) Causing it to appear that persons have
participated in any act or proceeding when
they did not in fact so participate.
(c) Attributing to persons who have
participated in an act or proceeding
statement other than those in fact made by
them
(d) Making untruthful statements in a
narration of facts
(e) Altering true dates
(f) Making any alteration or intercalation in a
genuine document which changes its
meaning
(g) Issuing in authenticated form a document
purporting to be a copy of any original
document when no such original exists or
including in such a copy a statement
contrary to or different from that of the
genuine original
(h) Intercalating any instrument or note
relative to the issuance thereof in a
protocol, registry, or official book.
4. In case the offender is an ecclesiastical minister, the
act of falsification is committed with respect to any
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record or document of such character that the
falsification may affect the civil status of persons.
The offender is said to have taken advantage of his
position or office when:
(a) He has the duty to make or prepare or to otherwise
intervene in the preparation of the document; or
(b) He has the official custody of the document which
he falsifies
Even if he is a public officer, if in falsifying the document he
did not take advantage of his public position, the crime
committed is under Art. 172 first act – falsification of a
public, official, or commercial document by a private
individual.
Art 171 requires that the offender takes advantage of
his official position. Otherwise, the liability is under
Art. 172 first act.
DIFFERENT ACTS OF FALSIFICATION:
I. BY COUNTERFEITING OR IMITATING ANY
HANDWRITING, SIGNATURE OR RUBRIC.
Counterfeiting – it means there is an
original handwriting or signature, and the
offender copies or imitates the said
original handwriting or signature.
Simulation - there is no original signature
or handwriting, the offender just produced
it, just wrote it out of pure imagination. It
does not exist. But still, falsification is
committed.
II. CAUSING IT TO APPEAR THAT PERSONS HAVE
PARTICIPATED IN ANY ACT OR PROCEEDING
WHEN THEY DID NOT IN FACT SO PARTICIPATE.
In this case, some persons failed to
participate in any transaction or
proceeding, and yet the offender said that
the said persons participated therein.
III. ATTRIBUTING TO PERSONS WHO HAVE
PARTICIPATED IN AN ACT OR PROCEEDING
STATEMENT OTHER THAN THOSE IN FACT MADE
BY THEM.
IV. MAKING UNTRUTHFUL STATEMENTS IN A
NARRATION OF FACTS
It is necessary that the offender has the
legal obligation to state the truth in the
said document.
However, in one case wherein the false
statement of facts were done in a cedula or
in a community tax certificate where in the
offender was charged with falsification, his
argument was that there is no law that
Criminal Law Review
Prosecutor Victoria C. Garcia
requires him to state the truth in a cedula
or in a community tax certificate. He said
that he has no legal obligation absent any
law commanding him to do so. But the SC
said that just by the kind of document, it
being a cedula, it is inherent in this kind of
document that only the truth must be
stated therein. There is that legal
obligation. Therefore, the offender was
held liable for making untruthful
statements in a narration of facts.
V. ALTERING TRUE DATES
VI. MAKING ANY ALTERATION OR INTERCALATION
IN A GENUINE DOCUMENT WHICH CHANGES ITS
MEANING
Alteration – change in a document
Intercalation – insertion
VII. ISSUING IN AUTHENTICATED FORM A DOCUMENT
PURPORTING TO BE A COPY OF ANY ORIGINAL
DOCUMENT WHEN NO SUCH ORIGINAL EXISTS OR
INCLUDING IN SUCH A COPY A STATEMENT
CONTRARY TO OR DIFFERENT FROM THAT OF
THE GENUINE ORIGINAL
TWO ACTS PUNISHED:
1.) The offender issued in an
authenticated form a document
purporting to be an authenticated
copy of an original document, but no
such original exists.
2.) By including such copy a statement
contrary to or different from a genuine
original.
VIII. INTERCALATING ANY INSTRUMENT OR NOTE
RELATIVE TO THE ISSUANCE THEREOF IN A
PROTOCOL, REGISTRY OR OFFICIAL BOOK
ARTICLE 172 - FALSIFICATION BY PRIVATE
INDIVIDUALS AND USE OF FALSIFIED DOCUMENTS
THREE PUNISHABLE ACTS:
I. Falsification of a public, official, or commercial
document by a private individual
ELEMENTS:
1.) Offender is a private person or a
public officer acting in his private
capacity.
2.) Offender commits any act of
falsification under Article 171.
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3.) It must be done either in a public,
official, or commercial document.
➢ No need to prove damage since the
document falsified is a public, official, or
commercial document.
II. Falsification of private document by any person
ELEMENTS:
1.) The document falsified is a private
one.
2.) There is damage or intent to cause
damage
3.) He commits any of the act of
falsification under Article 171 except
paragraph 7 (can be committed only
by a public officer).
➢ The document falsified is a PRIVATE
DOCUMENT. The offender can be any
person. He can be a public officer or
employee or he can be a private individual.
III. Use of falsified document
➢ If the said document is used in any other
official transaction outside judicial
proceedings, it is necessary to prove
damage.
➢ If the said falsified document is used in a
judicial proceeding, there is no need to
prove damage.
PEOPLE v. BATULANON
CRIME CHARGED: 4 counts of estafa thru falsification of
commercial documents were filed against Batulanon
RTC: Convicted of the crime charged.
CA: Falsification of Private Documents under Par. 2, Art 172.
RULING: SC affirmed the CA. Batulanon was convicted of
Falsification of Private Documents. The SC said that you
cannot complex falsification of a private document with
estafa. According to the SC, there cannot be a case of Estafa
through falsification of a private document because both
estafa and falsification of a private document have damage
as elements. Therefore, it can never be complexed because
a person can only be held liable for one crime based on the
same damage caused.
The SC however, stated some rules as to what would be the
crime charged in case a document, like in this case a cash
voucher which is a private document, was falsified in order
to commit the crime of estafa.
Criminal Law Review
Prosecutor Victoria C. Garcia
If estafa can be committed without falsifying the private
document, the proper charge is only estafa because the
falsification of the private document is merely incidental.
If estafa cannot be committed without falsifying a private
document, the proper charge is falsification of private
document because estafa is a mere consequence.
It is only either estafa or falsification of private document.
A person who is found in possession of a falsified document
is deemed to be the falsifier. Therefore, the proper charge is
falsification of public document. The proper charge is
falsification of public document and not use of public
document because he is deemed to be the one who falsified.
Q: What if he was charged with falsification of public
document because of the presumption created by law
that a person found in possession is deemed the
falsifier. During the trial, based on the evidence
presented, it was established that the accused was not
the one who falsified the public document. As a result,
the judge acquitted him of falsification of public
document. The State immediately filed another case,
that is use of falsified document. The accused moved for
the quashal of the information for dismissal of the case
on the ground of double jeopardy. Is there double
jeopardy or can the State still prosecute him for use of
falsified document?
A: The State can still prosecute him for use of falsified
document. Double jeopardy will not lie if the crimes have
different elements. In this case, falsification of public
document has different elements from use of falsified
documents. Therefore, in case it was (inaudible) that he was
not the one who falsified, he was able to prove or rebut the
presumption created by law that he was not the falsifier,
and he was acquitted, the state can still prosecute him for
the crime of use of falsified documents.
ARTICLE 174 - FALSE MEDICAL CERTIFICATES,
FALSE CERTIFICATES OF MERIT OR SERVICE, ETC
WHO CAN BE HELD LIABLE UNDER ART 174:
1.) a PHYSICIAN OR SURGEON who issues a false
medical certificate in the practice of his profession.
2.) a PUBLIC OFFICER who issues a false certificate of
merit, service or good conduct, moral character,
etc.
3.) ANY PRIVATE INDIVIDUAL who makes or falsifies
a medical certificate or certificate of merit or
service or good conduct.
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The person using the same, knowing that these certificates
were falsified can be held liable under Art. 175 – using false
certificate.
ARTICLE 177 - USURPATION OF AUTHORITY OR
OFFICIAL FUNCTIONS
ACTS PUNISHED:
1. Usurpation of authority - the offender pretends
to be an officer or agent or representative of any
department of the Philippine government or of a
foreign government.
Mere false representation that he is an agent, or
officer of the Philippine government or of a foreign
government, will suffice. There is no need to
perform an act. All that is requires is false
representation.
2. Usurpation of official function - the offender
performs an act pertaining to a person in authority
or a public officer under pretense of official
position, and without being lawfully entitled to do
so.
The offender has to perform an act pertaining to a
person in authority or to a public officer. Note that
it must be done under false pretense of official
position although he is not entitled to do so. Absent
the false pretense, he cannot be held criminally
liable for violation of Art 177.
Q: In the course of a traffic, a person alighted and
manned (?) the traffic. Therefore, he was performing an
act pertaining to a traffic enforcer or the MMDA. These
are public officers. Can he be held liable under Art. 177?
A: NO. He cannot be held liable because he did not do so
under false pretense of official position. He did not man the
traffic to say that he is a traffic enforcer/member of the
MMDA. He just did so as a private individual. Absent false
pretense, he cannot be held liable for usurpation of official
functions under Art 177.
Q: X and Y went to the Mayor and they wanted to have
a civil wedding ceremony to be officiated by the said
mayor. They presented all the requirements needed.
The wedding was set at the end of the month, which was
a Friday. On the day of the wedding, X and Y, as well as
the guests went to the Mayor’s office. However, the
Executive Assistant to the mayor told X and Y that the
Mayor was not at the office because he was attending a
conference of the League of Mayors in another town.
Upon seeing the sad reaction of the couple, the
Executive Assistant said “Do not worry. The Mayor told
me to solemnize your civil wedding.” The Executive
Criminal Law Review
Prosecutor Victoria C. Garcia
Assistant to the mayor then solemnized X and Y’s civil
wedding. The guests as well as X and Y were made to
affix their signature on the certificate of marriage.
However, the Executive Assistant said that he cannot
give the couple a copy yet of the certificate of marriage,
he will just give it on Monday after the Mayor has signed
it. In the certificate of marriage handed to the couple,
affixed above the printed mayor solemnizing officer
was the signature of the mayor. What crime/s were
committed by the Executive Assistant and the Mayor?
A: The executive assistant is liable for the crime of
usurpation of official function under Article 177. He
performed an act pertaining to a person in authority – the
mayor. Under the Local Government Code, only the Mayor
can solemnize the marriage and the Mayor cannot delegate
it to a mere executive assistant or to any other person.
Therefore, when the said executive assistant represented
that he can perform the said act, and then thereafter he
indeed solemnized the marriage between X and Y, he
performs an act pertaining to a person in authority.
Therefore, he is liable under Art.177.
The executive assistant is also liable for falsification of
public document. He is liable for falsification of public
document by causing it to appear that the Mayor
participated in the said ceremony, when in truth and in
fact he was the one who participated. He caused the mayor
to sign the certificate of marriage. Therefore, he is also liable
for falsification of public document.
The Mayor is liable for falsification of public document
under the 4th act - making untruthful statements in a
narration of facts. In this narration of facts, it was stated
that he was the one who solemnized the marriage between
X and Y in the presence of the guests when in truth and in
fact he was not even there at the time of the wedding
ceremony. When he affixed his signature, he made
untruthful statements in a narration of facts. He has the
legal obligation to state the truth therein. Therefore, he
becomes liable for falsification of a public document under
Art. 171.
ARTICLE 178 - USING FICTITIOUS NAME AND
CONCEALING TRUE NAME
ACTS PUNISHED:
I. USING FICTITIOUS NAME – It is committed by any
person who shall use a name other than his real
name publicly for concealing a crime, or evade the
execution of a judgment, or to cause damage to
public interest.
II. CONCEALING TRUE NAME – It is committed by
any person who shall conceal his name and any
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other personal circumstances and the purpose of
the offender is to conceal his real identity.
USING FICTITIOUS NAME CONCEALING TRUE NAME
purpose is to conceal a
crime, evade the execution purpose is to conceal his
of judgment or to cause true and real identity
damage to public interest.
The law requires the There is no requisite that it
element of publicity. be done in public.
*BAR QUESTION: Atty X, after a day’s hearing, went to a
sauna bath parlor and he was receiving a massage from
a lady in the said sauna parlor. Suddenly, police officers
armed with a search warrant raided the place because
based on their surveillance, the place is actually a
prostitution den, but in the front, it is a sauna parlor.
When they raided the upper most portion of the place,
in every room the police were able to arrest prostitutes
and their customers. Since Atty X was at the time
receiving a massage from one of the lady employees
therein, he too was arrested. He was not caught in the
rooms on the upper most portion, he was at the ground
floor receiving a massage. The police officers asked his
name, Atty X did not divulge his true name. He said that
his name was “Y”. When he was asked of his
profession/job, he said that he was jobless. When he
was asked of his civil status, he truthfully stated he is a
married man, he stated the name of his wife and
children, and his address. Everything he stated was
true, except for his real name and profession. When this
was discovered, Atty X was charged for violation of Art.
178 – using a fictitious name and also concealing a true
name. He was also charged with violation of CA 142 as
amended, the Anti-Alias Law. Is Atty. X liable of any of
these crimes?
A: No, Atty X is not liable for using a fictitious name.
Although he used a name other than his real name, he did
not use it to conceal a crime, evade the execution of
judgment or to cause damage to public interest. He just used
it because he was so embarrassed to divulge that he, a
lawyer, was there inside a massage parlor. Therefore, he is
not liable for using a fictitious name.
He is not liable for concealing true name. Although he
concealed his real name, he did not conceal his other
personal circumstances. He truthfully revealed his civil
status, the name of his wife and children and his address.
Therefore, he has no intention to conceal his real identity.
He only wanted to conceal that he is X, a lawyer. Therefore,
he is not liable for concealing true name as he has no intent
to conceal his real identity.
Criminal Law Review
Prosecutor Victoria C. Garcia
He is not liable for violation of CA 142 as amended, the Anti
Alias law. As held by the SC in the case of Ursua vs. CA and
Estrada vs. People, an alias is a name or names used or
intended to be used by a person publicly and habitually,
usually for business purposes. It is necessary that there
must be the element of publicity and habituality. In both
cases, the SC said the use of a name other than his real
name in a single transaction, absent any showing that
he wanted to be known by such name, is not within the
prohibition of CA 142 as amended. Atty. X’s use of the
name “Y” in a single transaction when investigated by the
police without any showing that X wanted to be publicly
known as “Y” is not within the meaning of violation of CA
142 as amended.
C.A. No. 142, as amended
ANTI-ALIAS LAW
Under C.A. 142, except as pseudonym, in literary, cinema,
television, radio and other entertainment purposes, and in
athletic events wherein the use of a pseudonym is a
normally accepted practice, no person can use any name
other than his name by which he is registered at birth at the
civil registry or the name by which he is registered at the
Bureau of Immigration upon his entry into the Philippines,
in case of an alien.
Under CA 142 as amended, only in the ff INSTANCES
MAY A PERSON USE A PSEUDONYM OR OTHER NAME:
1. For literary purposes, when he is an author.
2. For entertainment purposes (radio, tv, cinema)
3. In athletic events
4. When such substitute name is allowed by judicial
or competent authority.
ARTICLE 179 - ILLEGAL USE OF INSIGNIA, UNIFORM,
OR DRESS
Committed by any person who makes use of any insignia,
uniform or dress belonging to an office not held by him or
to a class of person of which he is not a member, and he
makes use of such insignia, uniform or dress publicly and
improperly.
Q: X was caught in the act of committing theft. He was at
the time wearing the basketball uniform of the Ateneo
basketball players. Aside from the crime of theft, can he
be held liable for violation of Art 179 – Illegal use of
insignia, uniform, or dress?
A: NO. Art 179 was brought about by E.O 187 during the
time of Pres. Corazon Aquino. The said EO is only to ensure
that public officers will not violate the rights of the Filipinos
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as enshrined in the Constitution. Therefore, this pertains to
offices and class members of the PNP, AFP and uniforms of
public officers and employees because it is a guard against
people using the uniform of the PNP, AFP, and uniforms of
public officers and employees in order to abuse people’s
rights.
Even in the church, you can see people wearing orange
shirts with letter “P”, ibig sabihin provincial jail prisoner, or
letter “P” kulay yellow (city jail prisoner). Can you be held
liable under Art 179? NO. Again this pertains to the
uniforms, insignia, or dress, of the PNP, AFP, and uniforms
of public officers and employees.
Criminal Law Review
Prosecutor Victoria C. Garcia
defendant (Art 180), which is lacking in false testimony
favorable to a defendant (Art 181). What is that 4th element?
In case of false testimony against a defendant, before the
offender can be held criminally liable, it is necessary that
the defendant against whom the false testimony is given
must first be acquitted or convicted by final judgment.
Before that, the case will be premature.
However, in case of false testimony favorable to the
defendant (Art.181), there is no such 4 th element. The
reason is under Art. 180, the penalty to be imposed on the
said witness who testified falsely against the defendant
would depend on the final sentence imposed on the
defendant against whom the false testimony is given.

FALSE TESTIMONY (ART 180, 181, 182) Whereas in false testimony favorable to a defendant (Art.
181), the law provides for a specific particular penalty. The
False testimony can either be false testimony in criminal penalty to be imposed on the false witness is not dependent
cases (Articles 180 and 181), false testimony in civil cases on the judgment.
(Article 182) and false testimony in other cases.
FALSE TESTIMONY FALSE TESTIMONY
False testimony in criminal cases can either be: AGAINST THE FAVORABLE TO THE
DEFENDANT (ART. 180) DEFENDANT (ART. 181)
(1) false testimony against a defendant (Article 180);
(2) false testimony favorable to defendant (Article It is necessary that the
181). defendant against whom
the false testimony is
No such requirement.
given must first be
ARTICLE 180 - FALSE TESTIMONY AGAINST A acquitted or convicted by
DEFENDANT final judgment.

ELEMENTS: The law provides for a

The penalty to be imposed
specific/ particular
1. That there is a criminal judicial proceeding. on the said false witness
penalty. It does not
2. That the offender testifies falsely under oath would depend on the final
dependent on the final
against the defendant therein. sentence imposed on the
sentence imposed on the
3. That the offender who gives false testimony knows defendant against whom
defendant against whom
that it is false. the false testimony is
the false testimony is
4. That the defendant against whom the false given.
given.
testimony is given is either acquitted or convicted
in a final judgment.

ARTICLE 182 - FALSE TESTIMONY IN CIVIL CASES

ARTICLE 181 - FALSE TESTIMONY FAVORABLE TO
DEFENDANT ELEMENTS:

ELEMENTS: 1. There is a civil proceeding.

2. The defendant testifies falsely as to issues relative
1. There is a criminal judicial proceeding. to the said case.
2. The offender testifies falsely in favor of the 3. The offender knows that his testimony is false.
defendant. 4. He did so with malice in order to affect the issues in
3. The offender knew that his testimony is false. the said civil case.

If you will compare false testimony against a defendant (Art There is no need to wait to wait for the judgment of the
180) and false testimony favorable to a defendant (Art 181), court before false witness can be prosecuted for false
there is a fourth element in false testimony against a testimony.
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False testimony is a formal crime. It is not a material
crime. It is a crime based on result, based on consequence.
Hence, it has no attempted and no frustrated stages. If you
stated falsities under oath in a criminal proceeding, in a civil
proceeding, you become liable for false testimony.
Q: You appeared, pero hindi ka naman nagsalita. Can
you be held liable for false testimony?
A: NO. It is only upon falsely testifying under oath that you
become criminally liable because it is a formal crime. It is
only punished in the consummated stage.
ARTICLE 183 - PERJURY
PERJURY is the willful and deliberate assertion of falsehood
on a material matter made in an affidavit or a sworn
statement before an officer duly authorized to receive it.
ELEMENTS:
1. The offender executed an affidavit or made a
statement under oath on a material matter.
2. The statement or affidavit was made before a
competent officer duly authorized to receive and
administer oath.
➢ It is necessary that the said oath be given
before an officer duly authorized to
receive and administer it.
3. That in the said statement or affidavit, the offender
made a willful and deliberate assertion of
falsehood.
➢ Perjury cannot be committed by means of
imprudence or by means of negligence.
The law requires that there must be a
deliberate and willful intent to state
falsities in the said affidavit or sworn
statement.
➢ Good faith is a defense if he lacks the
deliberate intent to state falsities.
4. The said statement or affidavit containing falsity is
required by law.
Based on the first element, there are TWO WAYS OF
COMMITTING PERJURY:
1. The offender either executed an affidavit; or
➢ Affidavit means it is under oath. It means
it has been notarized.
2. Made a statement on a material matter under oath.
Q: X made falsities in his SALN. What crime is
committed?
A: The crime committed is perjury. A SALN is required to be
under oath.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: X made falsities in his community tax certificate.
What crime is committed?
A: X is liable for falsification of public documents because a
community tax certificate is not required to be under oath.
If the document wherein falsities were narrated is required
to be under oath, the crime committed is perjury.
If the document wherein falsities were stated is not
required to be under oath, the crime committed is
falsification.
Q: X stated falsities after taking his oath before the
investigating public prosecutor. When the prosecutor
during the said clarificatory hearing asked questions, X
stated falsities in all his answers. What crime is
committed by X?
A: X is liable of perjury.
Q: X, as a witness in a civil action for damages, stated
falsities in open court under oath before the judge.
What crime is committed by X?
A: The crime committed is false testimony.
Q: Where lies the difference between perjury and false
testimony?
In the first problem, when the said false statements were
made before the office of the public prosecutor under oath,
it is PERJURY because the said false statement was done
in a NON-JUDICIAL PROCEEDING.
If it is done in a JUDICIAL PROCEEDING like in a civil or
criminal case, the crime committed is FALSE TESTIMONY.
ARTICLE 184 - OFFERING FALSE TESTIMONY IN
EVIDENCE
It is committed by any person who shall offer a false
testimony or a false witness in court.
This is different from subornation of perjury. In case of
subornation of perjury, before the offender, that is the
procurer of the said false witness, can be prosecuted for
subornation of perjury it is necessary that the false witness
he procured must first be convicted. If the said witness he
procured was not convicted, he cannot be held liable for
subornation of perjury. That is different from Art.184.
Under Art. 184, the mere act of presenting a false witness in
court or the mere act of offering a false witness will already
make the offender criminally liable for violation of Art. 184.
TITLE FIVE - CRIMES INVOLVING DRUGS
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REPUBLIC ACT NO. 9165
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002
SECTION 5 of RA 9165
SALE, TRADING, ADMINISTRATION, DISPENSATION,
DELIVERY, DISTRIBUTION AND TRANSPORTATION
OF DANGEROUS DRUGS AND/OR CONTROLLED
PRECURSORS AND ESSENTIAL CHEMICALS
Q: X and Y were on board a motorcycle. At a distance,
they immediately saw the checkpoint of the police so
they made a U-turn; they do not want to pass by the
checkpoint. However, there is no other way but to pass
through the checkpoint. So they decided to pass
through the checkpoint. X, the driver passed through
the checkpoint and in doing so he deliberately slide his
motorcycle so both of them (X and Y) fell and the
motorcycle fell. The police officers went towards them,
as he was being lifted up, the police officers saw
something on his waist. The police officer asked “is that
a pistol? Hand the pistol to us.” X had no recourse but to
hand over the pistol. They could not produce any
license, so the police arrested them. Their
constitutional rights were read to him.
Since they were caught in the act of committing a crime,
the police searched his body. Nothing was found except
for the gun. The police then searched the motorcycle,
and the police found a little box in the compartment.
When the police officer looked inside the box, he found
several plastic sachets of shabu. All the sachets were
marked and thereafter brought to the PNP crime lab,
where it was tested. It was found positive for
methamphetamine hydrochloride or shabu.
X and Y were charged with transportation of dangerous
drugs – violation of Sec. 5 of the Comprehensive
Dangerous Drugs Act of 2002 (RA 9165). Their
argument was that they cannot be held liable for
transporting dangerous drugs because the said drugs
were not delivered. They do not know on whom the
drugs were to be delivered. Therefore, if ever they
should be held liable, it should only be for illegal
possession and not transportation of dangerous drugs.
A: The SC said they are liable for transporting dangerous
drugs. According to the SC, transportation of dangerous
drugs only means to carry or to convey dangerous
drugs from one place to another. The essential element
is the movement of the dangerous drugs from one place
to another. There is no need to prove on whom the
dangerous drugs will be transported. All that is required is
the movement of the dangerous drugs from one place to
another. Since under Section 26 of RA 9165 there is
conspiracy in transportation of dangerous drugs, X and Y
can be held liable for conspiracy in transporting dangerous
drugs.
Criminal Law Review
Prosecutor Victoria C. Garcia
ELEMENTS OF ILLEGAL SALE OF DANGEROUS DRUGS:
1. The buyer and seller are clearly identified.
2. The corpus delicti and the price must be
established.
3. The corpus delicti must be transferred from the
hands of the seller to the hands of the buyer.
In every criminal prosecution for dangerous drugs, the
corpus delicti is always the drugs.
Usually, a person is charged for illegal sale of dangerous
drugs based on a buy-bust operation.
A buy bust operation is an entrapment procedure which is
approved by both the law and the courts because it is a
device used by police officers in order to trap and capture
drug pushers or drug peddlers in the actual act of selling
dangerous drugs.
Q: The police officers planned a buy-bust operation
against W. The police used one of their informants by
the name of X to be the poseur buyer. They gave X 200-
peso marked bills. 7 police officers accompanied X
during the buy-bust operation. The police were in
hiding of course. X went to the place of W and told the
latter that he will buy shabu worth P2000. W handed to
X several plastic sachets of shabu. Before X was able to
give the money to W, the police officers suddenly
arrived and arrested W. W was charged with illegal sale
of dangerous drugs. Subpoena was sent to X but he
failed to appear. W was convicted of illegal sale of
dangerous drugs based on the testimonies of the police
officers.
W appealed. His grounds on appeal are as follows: (1)
he did not receive the marked money, and (2) there was
no sale transaction. In fact, the prosecution failed to
present the person who allegedly acted as a poseur
buyer (X). Are his arguments meritorious?
A: The first argument has no merit. Even if the P2000 pesos
was not handed to him, the price was established when X
told W that he is buying P2,000 worth of shabu.
However, the second argument of W has merit. In this case,
since the prosecution failed to present the poseur buyer,
there is no evidence for the said sale transaction and that
the drugs allegedly confiscated from W were indeed taken
from him. Only X the poseur buyer can testify to that effect
because the police officers were far from the said place. The
police officers, being several meters away from the place,
their testimony as to the said sale transaction would be
considered only as hearsay evidence.
As a rule, the testimony of the poseur buyer is not necessary
to convict one of illegal sale of dangerous drugs if there are
other pieces of evidence to prove the said transaction. If
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however in this case, the police officers were so far away as
to witness the said exchange of drugs, only the poseur buyer
can testify as to that effect. His absence would create a
hiatus on the evidence of the prosecution. It would be an
acquittal.
Q: X was driving and then he parked his car. He called
the cigarette vendor on the sidewalk and told the latter
“Come here! Do you want to earn money today?”. The
vendor said “Of course!”. X said “Ok. Do you see that
man waiting near the electric post? Could you give this
bag to him?”. The vendor said “I can give that bag but
why can’t you give it yourself?”. X said “No more
questions! Do you want to do the job or not?”. The
vendor said “Of course I want to do it, I have no money”.
X gave the vendor the bag and the Php 1,000 as
payment. The vendor was walking towards the said
man. However, when he was about to deliver the said
drugs, suddenly the man disappeared because there
were already police officers behind the vendor. The
police confiscated the said bag and they found therein
dried marijuana leaves. The vendor was charged with
delivering dangerous drugs, a violation of Section 5 of
RA 9165. The vendor’s defense was that he has no
knowledge that the bag he is delivering contained
dangerous drugs. Therefore, according to the vendor,
he could not be held liable for delivering dangerous
drugs. Is his argument meritorious?
A: YES, his argument is meritorious. Under RA 9165, TO
DELIVER means to transfer dangerous drugs from one
person to another personally or otherwise, with or
without consideration. It is the act of knowingly
transferring, knowingly passing dangerous drugs. Since
the law used the word “knowingly”, it means the courier
knows that what he is transferring/giving/delivering is
dangerous drugs. Absent such knowledge on the part of the
courier, it could be a valid defense that can bring about an
acquittal.
In this case, based on the facts, the said vendor lacks
knowledge that the said bag contains dangerous drugs.
Therefore, is a valid defense that can bring about an
acquittal for violation of Sec. 5 of RA 9165.
Q: The police officers learned that this person is
engaged in selling dangerous drugs. By means of phone,
they transacted that he is going to buy this amount of
dangerous drugs. The transaction was inside a room.
The police officer acting as a poseur buyer entered
inside the said room and bought the said dangerous
drugs. He gave the money, there was (inaudible). The
said peddler was arrested. When the said allegedly
shabu was brought to the PNP crime lab, it was
discovered that it was not shabu but ephedrine.
The accused was charged with violation of Section 5 of
RA 9165 – illegal sale of dangerous drugs. His argument
was that he cannot be held liable for violation of section
Criminal Law Review
Prosecutor Victoria C. Garcia
5 because what was stated in the information was that
the police officers bought and transacted to buy
methamphetamine hydrochloride or shabu. However,
after testing at the crime lab, it was found that it was not
methamphetamine hydrochloride or shabu but
ephedrine. Is his argument meritorious?
A: NO, the argument has no merit. The SC said that what
Section 5 punishes is the sale of dangerous drugs. Whether
it is methamphetamine hydrochloride/shabu or ephedrine,
still they are considered as dangerous drugs. Still, section 5
applies. The information need not state the particular drugs
for as long as they are within the meaning of dangerous
drugs under RA 9165.
SECTION 11 of RA 9165
ILLEGAL POSSESSION OF DANGEROUS DRUGS
ELEMENTS OF ILLEGAL POSSESSION OF DANGEROUS
DRUGS:
1. The offender is found in possession of any item or
object identified to be drugs.
2. He is not authorized by law to possess the same.
3. That he freely and consciously possesses the said
dangerous drugs – animus possidendi
The prosecution must prove the first element. The
prosecution must prove that when the said offender was
found in possession of dangerous drugs, he was freely and
consciously possessing it. There is intent to possess or
animus possidendi on his part.
The second element requires that the offender was not
authorized by law to possess the said dangerous drugs. The
2nd element need not be proven by the state or the
prosecution because the 2nd element is presumed by law.
Dangerous drugs are per se contraband. Since they are
illegal per se, any person found in possession of the same is
presumed by law not to have been authorized because no
one will be authorized by law to possess an unlawful illegal
or contraband item. Therefore, the law presumes that his
possession of the same is without authority. The burden is
on the defense to prove that he is authorized by law to
possess the said dangerous drugs.
When you say POSSESSION OF DANGEROUS DRUGS, it
includes both physical or actual possession and
constructive possession of dangerous drugs.
• PHYSICAL POSSESSION – the dangerous drugs
were in the hand, body, or clothing of the offender.
• CONSTRUCTIVE POSSESSION – the dangerous
drugs were found in a place where the offender has
direct control and custody of the same.
Q: Police officers raided the house of X by virtue of a
search warrant for illegal possession of dangerous
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drugs. The drugs were found in X’s room under his
pillow. Can X be held liable for illegal possession of
dangerous drugs?
A: Yes, X is liable for illegal possession of dangerous drugs
because he has constructive possession over the same. That
is his house, that is his room. Therefore, the law presumes
that he has direct control and custody of all the things inside
the house. Therefore, he can be held liable for such
constructive possession of dangerous drugs.
SECTION 13 of RA 9165
ILLEGAL POSSESSION OF DANGEROUS DRUGS
DURING PARTIES, SOCIAL GATHERINGS OR
MEETINGS
Q: The police got a tip that on this particular portion of
the street, may naglalaro ng cara y cruz (illegal
gambling game). The police went to the said place and
they found X, Y, and Z in the act of playing cara y cruz so
they were arrested. They were informed of their
constitutional rights and thereafter, they were frisked.
When X was frisked, the police officers found inside his
pocket 2 plastic sachets of shabu weighing 0.0001
gram. At the PNP crime lab, it was found positive for
methamphetamine hydrochloride or shabu. Aside
from illegal gambling game, X was also charged with
illegal possession of dangerous drugs. In the
information, it was alleged that he was found in
possession of the said dangerous drugs under Sec.13
(illegal possession of dangerous drugs during parties,
social gatherings or meetings) in the company of at
least 2 persons, that is Y and Z. As a result, X was
convicted and the judge imposed upon him the
maximum penalty of life imprisonment. He was only
found in possession of 0.0001g od shabu. Halos residue
nalang yon. Is the court correct in imposing upon him
the penalty of life imprisonment?
A: YES. The SC said under Section 13 of RA9165, if a person
is found in possession of dangerous drugs in a meeting, in a
gathering, in a party, or in the company of at least 2 or more
persons, the maximum penalty prescribed by law shall be
the one imposed. Regardless of the quantity or the purity of
the drug, the proper penalty would be life imprisonment.
Q: X was found in possession of shabu weighing 10g (big
amount). It was found positive for
methamphetamine hydrochloride. X was charged with
illegal possession of dangerous drugs under Section 2.
Because of the weight of the said shabu, the RTC
imposed on him the penalty of life imprisonment. Is the
court correct?
A: NO, the court is wrong. The SC said that based on the
provision of RA 9165, you can only impose the maximum
penalty of life imprisonment if the said person is found in
possession of the said dangerous drugs in a party, in a
gathering, or in the company of at least 2 or more persons.
Here, X was found in possession of shabu not in the
Criminal Law Review
Prosecutor Victoria C. Garcia
company of anybody. The SC downgraded the penalty
imposed on him.
SECTION 12 of RA 9165
ILLEGAL POSSESSION OF DRUG PARAPHERNALIA
If a person is found in possession of drug paraphernalia, the
law presumes that the said person has administered,
injected, or used for himself dangerous drugs.
SECTION 15 of RA 9165
ILLEGAL USE OF DANGEROUS DRUGS
Dela Cruz v. People
The offender was charged with robbery extortion and
thereafter he was brought to the PNP crime lab and he was
ordered to submit his urine for drug testing. He refused.
However, the police ordered him, and he was forced to
produce his urine. He was found positive for use of
dangerous drugs. Aside from the crime of robbery
extortion, he was also charged for illegal use of dangerous
drugs. He was convicted by the RTC. CA affirmed.
CRIME CHARGED: violation of section 15 of RA 9165.
RTC: Convicted Dela Cruz of the crime charged
CA: Affirmed the RTC.
RULING: The SC acquitted Dela Cruz for illegal use of
dangerous drugs.
Under SECTION 15 - ILLEGAL USE OF DANGEROUS
DRUGS, THE ELEMENTS are:
1. That the offender has been apprehended or
arrested for the commission of a crime.
2. The said offender is subjected to a drug test.
3. After a confirmatory test, he was found positive for
use of dangerous drugs.
The SC said that the first element that the offender is
apprehended or arrested for the commission of a crime, the
word “crime” does not refer to any crime. The word
“crime” refers only to crimes under Article 2 of RA
9165. Therefore, it only refers to crimes involving
violations of RA 9165.
In this case, the crime he committed is robbery extortion,
which is not under RA 9165. Therefore, the police officers
have no right to subject him a drug test. The SC acquitted
Dela Cruz because the drug test was done in violation of his
constitutional right to privacy. Therefore, a person can only
be found liable for illegal use of dangerous drugs if he was
found positive after he was apprehended for the
commission of a crime punished under RA 9165.
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Q: X was arrested by the police for selling and
possessing dangerous drugs. He was brought to the
crime lab. He was told to produce his urine and after the
urine test, he was found positive for use of dangerous
drugs. Can he be charged for illegal use of dangerous
drugs?
A: NO. Although the police officers are correct in subjecting
him to a drug test, in this case, such positive finding for use
of dangerous drugs under Sec. 25 of RA 9165 shall be
considered as a qualifying aggravating circumstance. He can
no longer be charged for illegal use of dangerous drugs, but
instead the fact that he was found positive for use of
dangerous drugs, taking into consideration Sec.25, it will be
a qualifying aggravating circumstance. Therefore, the fact
that a positive finding for use of dangerous drugs shall be
considered as a qualifying aggravating circumstance will
only apply if the said offender has been apprehended or
arrested for the commission of a crime under RA 9165.
People vs. Sullano
Sullano was a police officer and the Chief of Police said that
there will be random drug testing. Among the 50 police
officers selected was Sullano. Sullano was found positive
and he was charged for use of dangerous drugs. However,
during the trial on the merits, he filed a demurrer to
evidence. He said the prosecution failed to prove the
elements of section 15 of ra 9165, because the 1 st element
requires that person must be apprehended or arrested.
Here, he was not apprehended or arrested. He was ordered
to be subjected to a random drug testing by the said Chief of
Police.
CRIME CHARGED: Violation of Section 15 of RA 9165
RTC: Granted the demurrer to evidence.
CA: Affirmed the RTC.
RULING: The SC said the accused is correct.
““A person apprehended or arrested" cannot literally mean
any person apprehended or arrested for any crime. The
phrase must be read in context and understood in
consonance with R.A. 9165. Section 15 comprehends
persons arrested or apprehended for unlawful acts
listed under Article II of the law.”
Q: So that is one case, the case of the police officer
(People vs. Sullano).
Igagaya ko lang sa isa pang case, sa case naman ng
employee. Let’s say that in this office, it is required that
there be random drug testing of the employees. Among
the employees chosen was X and X was subjected to a
random drug testing, X was found positive for use of
dangerous drugs. Can he be charged for illegal use of
dangerous drugs?
Criminal Law Review
Prosecutor Victoria C. Garcia
Third case naman. He is a college student. He enrolled
in this school. Among the requirements before
enrollment is that he shall be subjected to a drug test.
He was found positive for use of dangerous drugs. Can
he be charged for illegal use of dangerous drugs?
A: First, is this random drug testing allowed? YES, under
section 36. Section 36’s constitutionality has long been
upheld in the case of Social Justice Society v. Dangerous
Drugs Board. The SC said that mandatory, random,
suspicionless drug testing is allowed. The SC said that this
is to ensure that all those in the said office are not involved
in the use of dangerous drugs.
Q: The question now is if a person was found positive
during the said mandatory, random, suspicionless drug
testing, can he be prosecuted for violation of Section 15
- illegal use of dangerous drugs?
A: The SC said in the case of People v. Sullano, NO. According
to the SC, Section 15 is unambiguous. A person
apprehended or arrested for a crime and he was found
positive for use of dangerous drugs. The SC said a person
can only be charged under Sec.15 if he has been
apprehended or arrested, and then thereafter subjected to
a random drug test, and after a confirmatory test he was
found positive for use of dangerous drugs. In all these
instances, the police, the employee, the student who were
subjected to mandatory, random, suspicionless drug testing
they were not apprehended, they were not arrested for the
commission of a crime. They were just subjected to a
mandatory, random, suspicionless drug testing because of
the rules and regulation of the AFP, of the PNP, of the office
or the school. Therefore, they cannot be held liable for
violation of Section 15.
SECTION 21 of RA 9165
PROCEDURE IN THE SEIZURE AND CONFISCATION
OF DANGEROUS DRUG (RA 10460)
The law provides for a procedure that the apprehending
team must follow upon arrest and seizure of dangerous
drugs.
The apprehending team having initial custody of the
dangerous drugs seized or confiscated must physically
inventory the same and photograph the same in the
presence of the person from whom the dangerous drug was
taken or confiscated, or his representative or his counsel or
any representative from the DOJ, or from the media, and any
elected public official.
Q: Who must be present during the inventory or the
said act of taking photographs?
1. Person from whom the dangerous drugs were
taken (accused) or his counsel or representative
2. Elected public official
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3. Either a representative from the DOJ OR a
representative from the media.
It is not required that both the media and the DOJ
representative be present. Because of the amendment, it is
now “or”, it is no longer “and”. Therefore, any of these 2 may
be present.
The law requires that it be immediately marked.
Q: What does the word “immediately” mean?
A: According to the SC, it means that the marking or the
inventory must be done in the place where the accused was
arrested or where the drugs were confiscated EXCEPT
when there are valid reasons, then it should be in the PNP
station.
People vs. Abdullah
Q: Based on a tip, the police officers arrested 2 muslims.
Allegedly, they were found in possession of dangerous
drugs. Thereafter, they were brought to the police
station. There at the police station, there was the
marking of the dangerous drugs, the inventory, and the
taking of photographs of the said dangerous drugs. RTC
convicted them. The CA affirmed.
A: The SC acquitted the 2 muslims. The SC said that the said
act of inventory, marking, and taking of photographs of the
said dangerous drugs must be done in the place where the
said accused was arrested. Here, from the said place, it is a
distance to the police station. Therefore, the said act of
taking photographs, the said act of making inventory, the
said act of marking was not done immediately. The
argument of the police officers was that it was a muslim
area and since it was a muslim area, they were afraid, they
do not feel that it is a safe place for them to do the marking.
The SC said NO. Being anti-muslim (Justice Leonen called it
islamophobia) is not sufficient reason for not marking the
evidence in the muslim area. You are police officers, there
were many of you there, you were armed, how come you are
afraid of the people in the area. The SC said that it was not a
sufficient justification. The said act of marking, inventory
was not done immediately. Therefore, it is an acquittal.
The SC said although failure to comply with the provisions
of Section 21 does not necessarily mean an acquittal if there
is a justifiable ground for noncompliance if the
apprehending public officers were able to preserve the
integrity and evidentiary value of the dangerous drugs. If
these 2 elements are present, then even if Section 21 was
not complied with, it will still be a conviction.
However, in the recent cases of the SC puro acquittal.
Mawala lang ang media representative or DOJ
representative = acquittal. So, section 21, at the moment
must be strictly complied with.
Criminal Law Review
Prosecutor Victoria C. Garcia
The reason always given by the SC is that for substantial
compliance of Section 21, to bring about a conviction, it is
necessary that there is a justifiable ground, and the police
officers always fail to prove such justifiable ground for
noncompliance.
Section 21 is in consonance with the Chain of Custody Rule.
CHAIN OF CUSTODY RULE – is the duly recognized
marking of the dangerous drugs from the time of its seizure
to the time it is brought to the crime lab for testing, to the
time it is given to the custodian for safekeeping to the time
it is presented to the court as evidence, to the time it is given
to the PDEA for destruction. The purpose is to ensure that
there is no change, alteration, or contamination of the
dangerous drugs. That the dangerous drug seized and
confiscated from the accused would be the very same
dangerous drug tested at the forensic crime lab and would
be the very same dangerous drug presented in court.
Any person having temporary custody of the said
dangerous drugs must place the date and time of his
custody and must sign (inaudible).
SECTION 23 of RA 9165
PLEA-BARGAINING PROVISION
Q: X was charged with illegal sale of dangerous drugs.
During the arraignment, the Information was read, and
he pleaded not guilty. During the preliminary
conference, the exhibits were marked. Before the pre-
trial, the counsel of X moved for a plea-bargaining
agreement. X wanted to plead guilty to a lesser crime of
illegal possession of drug paraphernalia. The judge
refused and said “The case filed against your client is
violation of RA9165. It is expressly provided therein
under Section 23 that plea bargaining is expressly
prohibited.” Under Section 23, no person charged for
violation of RA 9165, regardless of the imposable
penalty, can avail of a valid plea-bargaining agreement.
Is the judge correct?
A: NO, the judge is wrong. Although Section 23 of RA9165
prohibits a person charged with violation of RA 9165 from
entering into a plea-bargaining agreement, the SC stated in
the case of Estipona v. Judge Lobrigo that Section 23 is
unconstitutional. The SC that Section 23, which prohibits an
accused charged under RA9165 from availing of the plea-
bargaining provision of the Rules of Court is
unconstitutional because it encroaches upon the powers of
the Supreme Court to provide rules and regulations for the
judiciary. Since under the Rules of Court provided for by the
SC there is plea-bargaining for all persons, all accused can
avail of the said plea-bargaining agreement, even those
prosecuted under RA 9165.
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SECTION 24 of RA 9165
APPLICABILITY OF THE PROBATION LAW FOR DRUG
TRAFFICKERS AND PUSHERS.
Q: X was charged with illegal sale of dangerous drugs.
During the arraignment, the Information was read to
him. During the pre-trial, his counsel stated that his
client is willing to enter into a plea-bargaining
agreement. The judge said “Ok, to what provision?”. The
counsel said “My client would like to plead guilty to
violation of Section 12 – illegal possession of drug
paraphernalia.” The judge said “Ok fiscal, could you
amend the information in the next scheduled hearing?”.
During the next scheduled hearing, the Information for
the crime of illegal possession of drug paraphernalia
was read to him. X pleaded guilty. The judge imposed
upon him the maximum penalty provided for under
Section 12, that is 4 years imprisonment. Since the
penalty imposed on illegal possession of drug
paraphernalia is 4 years imprisonment, X’s counsel
said that they would like to file an application for
probation. The judge denied the application for
probation and said “You were originally charged for
drug trafficking, for drug sale, therefore, you cannot
avail of the benefit of probation. Under Section 24,
those persons convicted of drug trafficking or drug
pushing cannot avail of the benefit of probation.” Is the
judge correct?
A: NO. In the case of Pascua v. People, the SC said the judge
is wrong because if you will look at the phraseology of both
Section 24 of RA 9165 and Section 9 of the Probation Law,
the basis for the application for probation would be the
crime for which the offender has been convicted of, not of
the crime for which he is charged. In this case, although X
was charged for illegal sale, he was convicted only for illegal
use of drug paraphernalia, based on a valid plea-bargaining
agreement. Since the penalty for illegal use of drug
paraphernalia is only 4 years imprisonment, X can avail of
the benefit of probation.
Section 24 of RA 9165 states “Any person convicted for
drug trafficking or pushing…“.
Not only that, under the probation law, who are among
those disqualified? Those whose maximum term of
imprisonment exceeds 6 years; therefore, it is necessary
that he has already been sentenced. Here, of what crime is
X sentenced of? Illegal possession of drug paraphernalia.
Therefore, he can avail of the benefit of probation.
SECTION 26 of RA 9165
ATTEMPT OR CONSPIRACY
Under Section 26 of RA 9165, the law PUNISHES THE
ATTEMPTED STAGE AS WELL AS CONSPIRACY in certain
provisions of RA 9165:
Criminal Law Review
Prosecutor Victoria C. Garcia
1. Sale, trading, administration, delivery, distribution,
transportation of dangerous drug.
2. Manufacture of any dangerous drug.
3. Maintenance of a den, dive, or resort where any
dangerous drug is used in any form.
4. Importation of any dangerous drug.
5. Cultivation or culture of plants which are the
sources of dangerous drugs.
These are the acts under Section 26 of RA 9165 wherein
mere attempt is already made criminally (inaudible) and
likewise there will be consequence.
People vs. Morilla
Mayor Mitra of Quezon was found to be in conspiracy with
Morilla, his driver, for the act of transporting dangerous
drugs. The reason is Section 26 of RA 9165.
CRIME CHARGED: illegal transport of methamphetamine
hydrochloride, commonly known as shabu
RTC: Guilty of the crime of illegal transport of
methamphetamine hydrochloride, commonly known as
shabu
CA: Affirmed the ruling of the trial court.
SC: Morilla was convicted for conspiracy to commit the
offense charged.
In conspiracy, it need not be shown that the parties actually
came together and agreed in express terms to enter into and
pursue a common design. The assent of the minds may be
and, from the secrecy of the crime, usually inferred from
proof of facts and circumstances which, taken together,
indicate that they are parts of some complete whole. In this
case, the totality of the factual circumstances leads to a
conclusion that Morilla conspired with Mayor Mitra in a
common desire to transport the dangerous drugs. Both
vehicles loaded with several sacks of dangerous drugs, were
on convoy from Quezon to Manila. Mayor Mitra was able to
drive through the checkpoint set up by the police
operatives. When it was Morilla’s turn to pass through the
checkpoint, he was requested to open the rear door for a
routinary check. Noticing white granules scattered on the
floor, the police officers requested Morilla to open the sacks.
If indeed he was not involved in conspiracy with Mayor
Mitra, he would not have told the police officers that he was
with the mayor.
People vs. Laylo
In this case, the police officers disguised themselves as
private individuals. Here comes accused Laylo offering to
them drugs. The police officers who were disguised as
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individuals said “Yes, we are interested in drugs” and Laylo
said “P200 isa”. When the police officers said “nasaan?”,
Laylo opened his palm and the drugs were there. Upon
seeing the drugs, the police officers immediately announced
that they were police officers and Laylo was arrested.
CRIME CHARGED: Laylo for attempted sale of illegal drugs;
Ritwal for possession of illegal drugs
RTC: Found Laylo and Ritwal guilty beyond reasonable
doubt of violations of RA 9165
CA: Affirmed the decision of the RTC.
RULING: The SC said it is really attempted illegal sale of
dangerous drugs because the third element of illegal sale –
that the said corpus delicti or dangerous drug must be
transferred from the hands of the seller to the hands of the
buyer, is not present. Here, the police officers, upon seeing
the drugs on the palm of Laylo, they immediately
announced that they were police officers and arrested
Laylo. Without the said drugs being transferred to the said
police officers acting as poseur buyer, the third element is
absent. Therefore, SC convicted Laylo of attempted illegal
sale of dangerous drugs.
SECTION 29 of RA 9165
CRIMINAL LIABILITY FOR PLANTING OF EVIDENCE
Q: The police officers knew that X is involved in selling,
possession and use of drugs. They knew that X is a drug
addict. Pero hindi nila mahuli huli in the act of selling o
possessing si X. Everytime they would arrest him with
so many people, he is not in possession of dangerous
drugs, but they know for a fact he is involved in drugs.
One time the police officers saw X walking. The police
officer got a plastic sachet of shabu and the police
officer immediately bumped X and in doing so, he
surreptitiously inserted the small plastic sachet of
shabu on the back pocket of X’s pants. Thereafter, when
X reached the end of the road, there were other police
officers. They said “We were informed that you just
bought drugs. We are going to frisk you”. When they
frisked X, indeed, the drug planted by the police officer
was there. The said act of the police officer of
surreptitiously placing the drugs was seen by 2
witnesses. What crime was committed by the said
police officer?
A: The said police officer is liable for planting of evidence
under Section 29 of RA 9165. If what is planted on an
innocent person is dangerous drugs in order to impute
upon him violation of RA 9165, the act is expressly
punished under Section 29 of RA 9165.
Criminal Law Review
Prosecutor Victoria C. Garcia
If what has been planted is any other thing outside drugs,
the crime committed is punished under Art 363 –
Incriminating innocent person.
When it comes to drugs, there is a particular penalty or
provision of law, that is Section 29, and the penalty is death
penalty.
SECTION 98 of RA 9165
LIMITED APPLICABILITY OF THE
REVISED PENAL CODE
Q: X, who was 17 y/o, was arrested by the police officer
because he was caught in the actual act of selling shabu.
X was brought to the police station. Everything was
found positive. Upon investigation, it was evident that
he acted with discernment. He knew or he was aware
that selling shabu is bad. He saw it on tv, he heard it on
the radio, the president’s campaign against drugs.
However, X said “this is the only means to survive.” X,
who was 17 y/o, was charged with the crime of illegal
sale of dangerous drugs. After trial on the merits, the
judge found him guilty as charged for illegal sale of
dangerous drugs and the judge imposed upon him (it
should be death penalty), the penalty of life
imprisonment because of the prohibition on the
imposition of death penalty under RA 9346. X’s counsel
filed a MR because according to him, the judge did not
take into consideration that the said offender at the
time of the commission of the crime was a minor.
Therefore, he said that the penalty must be lowered by
1 degree as minority is a privileged mitigating
circumstance. The judge denied the MR. Is the judge
correct?
A: NO, the judge is wrong, the counsel is correct. Under
Section 98 of RA 9165, the law provides that the provisions
of the RPC shall not apply to violations of RA 9165.
Therefore, the RPC will not apply, Article 10 will not apply
EXCEPT when the offender is a minor and the crime he
committed is punished by life imprisonment to death. If the
offender is a minor offender and the crime he committed
carries a penalty of life imprisonment to death, it shall be
considered as Reclusion Perpetua to death. Now that the
nomenclature of penalty is the same as that of the RPC, the
court can now consider the privileged mitigating
circumstance of minority.
In this case, X was convicted of illegal sale of dangerous
drugs which is punished by life imprisonment to death.
Since he was a minor offender at the time of the commission
of the crime, it should be considered as Reclusion perpetua
to death. Now that it has the same nomenclature of penalty
as that of the RPC, the court must correctly apply the
privileged mitigating circumstance of minority. Reclusion
perpetua lowered by 1 degree is reclusion temporal.
Reclusion temporal is the proper penalty for X, and not life
imprisonment.
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FOLLOW UP QUESTIONS AFTER DISCUSSION:
Q: A while ago it was discussed that if there is a false
narration of facts in a SALN, the liability would be
perjury. But in the case of Gallos v. People, the accused
made false narration of facts in the SALN but the court
convicted him of falsification under Art174(4). Why is
that?
A: Because that is the crime charged. It is the fiscal that
decides the case to be filed and based on the said
information filed by the fiscal, the court acts and he cannot
be convicted of perjury if the crime committed is
falsification because they have different elements. If the
crime charged is falsification, he cannot be convicted of
perjury. Otherwise, he will be denied of his right to be
informed of the nature and cause of accusation against him.
Q: Regarding Section 21 of RA9165 about the
role/presence of the media. Are they allowed to post it
on Facebook? I have a neighbor naentrapment
operation sila tapos na FB Live, parang naprejudged na
sila. Is there a violation of his constitutional right to
privacy?
A: It is a public act already. Unlike in case of minors wherein
everything must be in secret, the file must be kept, that does
not apply when the offender is not a minor. If the offender
or victim is a minor, everything must be kept in secret. It
cannot be divulged.
Criminal Law Review
Prosecutor Victoria C. Garcia
MAY 12, 2021
SMMB & NACMR
TITLE SEVEN- CRIMES COMMITTED BY PUBLIC
OFFICERS (Articles
203 – 245)
All the felonies under Title 7 can either be:
▪ MALFEASANCE – There is malfeasance when a
public officer performs in his public office an act
which is prohibited by law.
▪ MISFEASANCE – There is misfeasance when a
public officer performs an official act in a manner
not in accordance with what the law provides.
▪ NONFEASANCE – There is nonfeasance when the
public officer deliberately refuses, refrains or omits
from doing his official duty which the law requires
him to do.
This three refers to a public officer’s violation of his oath of
office. The moment a person enters into public office, he has
this Oath of Office and all the felonies therein will be a
violation of the said Oath of Office.
ARTICLE 203 – PUBLIC OFFICERS
REQUISITES TO BE A PUBLIC OFFICER:
1. One must be taking part in the performance of
public functions in the Government or one must be
performing in said Government or in any of its
branches public duties as an employee, agent or
subordinate official, of any rank or class; and
2. That his authority to take part in the performance
of public functions or to perform public duties must
be –
a. by direct provision of the law; or
b. by popular election; or
c. by appointment by competent authority
ARTICLE 204 – KNOWINGLY RENDERING UNJUST
JUDGMENT
ELEMENTS:
1. The offender is a judge
2. That he renders a judgment in a case submitted to
him for decision
3. That the judgment is unjust
4. The judge knows that his judgment is unjust
The judge knows that the judgment is unjust but he
nevertheless renders the same. There is bad faith on the
part of the judge.
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UNJUST JUDGMENT – is one which is contrary to law, or ARTICLE 208 – PROSECUTION OF OFFENSES;
one that is not supported by evidence or both. NEGLIGENCE AND TOLERANCE

Even if a judge after trial on the merits, renders an unjust
judgment if the said judgment is by reason of his erroneous
interpretation of the law, or in other words he acted in good
faith, there was no malice or bad faith in his part, the judge
cannot be held liable criminally, civilly or administratively.
Because the judges are free to decide based on their
appreciation of the law and the evidence, they enjoy the so-
called Judicial Immunity. Unless they acted in bad faith,
only then can they be held criminally liable for knowingly
rendering an unjust judgment.
ARTICLE 205 – JUDGMENT RENDERED THROUGH
NEGLIGENCE
ELEMENTS:
1. The offender is a judge;
2. That he renders a judgment in a case submitted to
him for decision;
3. That the judgment is manifestly unjust; and
4. The it is due to his inexcusable negligence or
ignorance.
ARTICLE 206 – UNJUST INTERLOCUTORY ORDER
ELEMENTS:
1. The offender is a judge;
2. That he performs any of the following acts:
a. knowingly renders unjust interlocutory order
or decree; or
b. renders a manifestly unjust interlocutory
order or decree through inexcusable
negligence or ignorance
ARTICLE207 – MALICIOUS DELAY IN THE
ADMINISTRATION OF JUSTICE
ELEMENTS:
ACTS PUNISHABLE:
I. By maliciously refraining from instituting prosecution
against violators of the law;
II. By maliciously tolerating the commission of offenses the
second act, a crime was about to be committed, he tolerates
its commission.
ELEMENTS OF DERELICTION OF DUTY IN THE
PROSECUTION OF OFFENSES:
1. That the offender is a public officer or officer of the
law who has a duty to cause the prosecution of, or
to prosecute, offenses.
2. That there is a dereliction of the duties of his office;
that is knowing the commission of the crime, he
does not cause the prosecution of the criminal or
knowing that a crime is about to be committed, he
tolerates its commission.
3. That the offender acts with malice and deliberate
intent to favor the violator of the law.
This is otherwise known as DERELICTION OF DUTY.
▪ This can only be committed by a public officer or a
officer of the law who has the duty to cause the
prosecution of or to prosecute the offenders. The
said public officer commits dereliction of duty in
the prosecution of offenses under any of the
following circumstances:
a. knowing the commission of the crime, he does
not cause the prosecution of the criminal, or
b. knowing that a crime is about to be committed,
he tolerates its commission and the said offender
acts with malice and deliberate intent to favor the
violator of the law.
▪ The offender is one who has the duty to cause the
prosecution of offenses or those who prosecute
offenses.
CHARGED WITH THE PROSECUTION OF THE
OFFENDERS:

1. The offender is a judge; - Public Prosecutors of the DOJ

2. There is a proceeding in his court; - Special Prosecutors of the Office of the
3. He delays the administration of justice; and Ombudsman
4. The delay is malicious, that is, delay is caused by - Fiscals
the judge with deliberate intent to inflict damage - Prosecutors
on either party in the case. - State Prosecutors

THOSE WHO CAN CAUSE THE PROSECUTION OF THE

OFFENDERS:
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- Public Officer
- Persons in Authority
- Agents of Persons in Authority
If these persons know that a crime has been committed yet
they do not want to arrest or prosecute the offender or they
know that a crime is about to be committed but they
tolerate its commission.
Q: What if the accused is found guilty by the court for
the crime of Rape. The defense of the accused is that he
was innocent. According to him, he wasn’t the one who
raped the victim. Nevertheless, after trial on the merits,
the RTC convicted him. He asked his counsel to file
immediately a MR or an appeal to the appellate court.
However, despite the lapse of 15 days and even if the
counsel assured X that he will be filing an appeal, the
said counsel did not file any appeal. The counsel did not
file such appeal, although he promised to do so and he
could not give a valid reason aside from the fact that he
forgot about it. What case or cases may be filed against
the said counsel?
A: He can be charged with violation of Art. 209 (Betrayal
of Trust by an Attorney or Solicitor) and he can also be
charged with an administrative case for the violation of
the Lawyer’s Code.
ARTICLE 209 – BETRAYAL OF TRUST BY AN
ATTORNEY OR SOLICITOR – REVELATION OF
SECRETS
ACTS PUNISHED AS BETRAYAL OF TRUST
ATTORNEY:
I. By causing damage to his client, either:
a. by any malicious breach of professional duty
b. by inexcusable negligence or ignorance
▪ In the problem given, it is the duty of the counsel to
file an appeal, there is malicious breach, slipped of
the mind that is not a justifiable ground for not
filing an appeal.
II. By revealing any of the secrets of his client learned by him
in his professional capacity.
▪ This pertains to the Rules of Evidence – the
Lawyer-Client Privileged Communication.
Anything divulged by the client to the counsel
pertaining to the case, the counsel handling the
case should not divulged it. Even if the said client is
the accused in the case, even if he admitted to the
counsel the he committed the crime, it is the
Criminal Law Review
Prosecutor Victoria C. Garcia
obligation of the counsel to defend him and not to
divulge the truth.
III. By undertaking the defense of the opposing party in the
same case, without the consent of his first client, after
having undertaken the defense of said first client or after
having received confidential information from said client.
▪ The third act is punishable if the counsel after
taking the case of the first party will now be taking
the case of the second party in the very same case.
What is present here is conflict of interest.
▪ IF THE CLIENT CONSENTS TO THE ATTORNEY’S
TAKING THE DEFENSE OF THE OTHER PARTY,
THERE IS NO CRIME
▪ Under Article 209, this betrayal of trust is IN
ADDITION TO A PROPER ADMINISTRATIVE
CASE which may be filed against an attorney or
solicitor. Therefore, these cases may proceed
independently of each other at the same time. They
are cumulative remedies, they are not exclusive of
each other. So aside from the criminal case in
violation of Article 209, he can also be charged in
an administrative case for violation of lawyer’s
oath.
ARTICLE210 – DIRECT BRIBERY
ACTS PUNISHABLE:
I. By agreeing to perform, or by performing, in
consideration of any offer, promise, gift or present – an act
constituting a crime, in connection with the performance of
BY
his official duties.
ELEMENTS:
1. The offender be a public officer within the scope of
Article 203;
2. The offender accepts an offer or a promise or
receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or received
by the public officer with a view of committing
some crime.
4. That the act which the offender agrees to perform
or which he executes be connected with the
performance of his official duties.
▪ If the thing which the public officer is required to
do is an act which will constitute a crime, a mere
agreement to do so will already give rise to direct
bribery. It is not necessary that he actually commits
the crime, it is not necessary that he actually
receives the gift or present.
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▪ A MERE AGREEMENT WILL SUFFICE. MERE
SAYING THAT ‘I WILL ACCEPT THE OFFER’ WILL
GIVE RISE TO THE CRIME.
▪ If the said public officer after accepting the
offer/gift, actually did the criminal act he is tasked
to do, aside from Direct Bribery he becomes liable
for the said criminal act that he committed. It
cannot be complexed because it is expressly
provided under Art. 210 that the penalty for Direct
Bribery shall be in addition to the public officer’s
liability to the crime agreed upon.
▪ Therefore, the public officer will be liable for TWO
charges. One for Direct Bribery for accepting the
offer/bribe and the other one is for actually
committing the crime agreed upon.
II. By accepting a gift in consideration of the execution of an
act which does not constitute a crime, in connection with
the performance of his official duty.
ELEMENTS:
1. The offender be a public officer within the scope of
Article 203;
2. The offender accepts an offer or a promise or
receives a gift or present by himself or through
another;
3. That such offer or promise be accepted, or received
by the public officer in consideration of the
execution of an act, which does not constitute a
crime, but the act must be unjust;
4. That the act which the offender agrees to perform
or which he executes be connected with the
performance of his official duties.
▪ If the thing that a public officer is required to do,
does not constitute a crime, under the Second Act,
mere agreement will not suffice. There must be
actual acceptance of the thing. There must be
acceptance of the gift, in consideration of the
execution of an act which does not constitute a
crime in connection with the performance of his
official duty.
▪ MERE AGREEMENT WILL NOT SUFFICE. It is only
upon ACCEPTANCE OF THE BRIBE that criminal
liability for direct bribery will arise.
▪ The reason is under the second act the public
officer is not being asked to do a criminal act, he is
not being asked not to perform his official duty.
Under the second act, the public officer is obligated
to do an act which is his official duty to do. It is his
duty to do it.
▪ It only becomes a crime because the public officer
wouldn’t do it without the briber given to him.
III. By agreeing to refrain, or by refraining, from doing
something which it is his official duty to do, in consideration
of gift or promise.
Criminal Law Review
Prosecutor Victoria C. Garcia
ELEMENTS:
1. The offender be a public officer within the scope of
Article 203;
2. The offender accepts an offer or a promise or
receives a gift or present by himself or through
another.
3. That such offer or promise be accepted, or received
by the public officer to refrain from doing
something which it is his official duty to do so.
4. That the act which the offender agrees to perform
or which he executes be connected with the
performance of his official duties.
▪ If the thing that a public officer is required to do, is
to refrain from doing an act which is his official
duty to do, a mere agreement to refrain to do an act
will already give rise to direct bribery. It is not
necessary to refrain from doing an act, it is not
necessary to receive the said gift.
▪ If the public officer after agreeing to refrain, indeed
refrain in doing his official duty, and the refraining
from performing the said official duty constitute a
crime, he becomes liable for TWO crimes.
▪ One is for Direct Bribery and the other one is the
non-performance for the said official duty. It
cannot be complexed because the penalty for
Direct Bribery is in addition to the said public
officer’s liability to the crime agreed upon.
In Direct bribery, the offender is the public officer receiving
the bribe. The bribe must be received by him in
consideration for the performance of an act which is
connected with the performance of his official duties.
There must always be a direct relation between the bribe as
well as the public officer’s performance of his official duties.
ARTICLE 211 – INDIRECT BRIBERY
ELEMENTS:
1. The offender is a public officer;
2. That he accepts gifts;
3. That the gifts are offered to him is solely and only
by reason of his public office.
▪ In Indirect Bribery, the public officer given by the
gift/present, is not being tasked to do an act. The
gift is only given to him because he occupies the
position or because he occupies the public office.
▪ If the public officer accepts the said gift, there
arises the crime of Indirect Bribery. In the public
officer does not accept the gift, he is not liable of
any crime.
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▪ Indirect Bribery can be committed only in the
CONSUMMATED stage. There is no attempted/
frustrated Indirect Bribery because if the public
officer doesn’t want to accept the gift, then is not
liable of any crime.
▪ By the MERE ACCEPTANCE, indirect bribery is
consummated. NO ACCEPTANCE, NO CRIME IS
COMMITTED.
ARTICLE 211-A – QUALIFIED BRIBERY
ELEMENTS:
1. The offender is a public officer in charge with law
enforcement;
2. The offender refrains from arresting or
prosecuting an offender who has committed a
crime punishable by reclusion perpetua and/or
death;
3. The offender refrains from arresting or
prosecuting the offender in consideration of any
promise, gift or present.
▪ This is an insertion introduced by RA 7659 – The
Heinous Crime Law.
▪ If it is the public officer himself who solicited the
gift/present, the penalty is death.
▪ Qualified bribery will only apply if the public officer
who committed such is in charge with the
enforcement of the law. And the said public officer
does not want to arrest or prosecute a person who
committed a crime punishable by reclusion
perpetua or death.
▪ If it is lower than reclusion perpetua or death, the
crime committed is Direct Bribery.
Direct Bribery, Indirect Bribery and Qualified Bribery are
the crimes committed by the public officers who RECEIVES
the bribe.
The crime committed by the GIVER of the bribe is punished
under Art. 212 – Corruption of Public Officials.
ARTICLE 212 – CORRUPTION OF PUBLIC OFFICIALS
ELEMENTS:
1. The offender makes offers or promises or gives or
presents to a public officer.
2. That the offers or promises are made or the gifts or
the gifts or presents given to a public officer, under
circumstances that will make the public officer
liable for direct bribery or indirect bribery.
Criminal Law Review
Prosecutor Victoria C. Garcia
▪ The giver of the bribe can either be a public
officer/employee or a private individual.
Q: X was driving his car. Suddenly, he committed a
traffic violation and so he was stopped by a police
officer to get his license. However, X got out of the car
and said “Dito tayo, sir.” They went to a place near the
tree. X handed to the police officer P100. The police
officer said “No, I do not receive that, hand me your
license.” X said “Naliliitan ka ba sir? Dagdagan natin,
P500 na to sir.” The police officer did not accept and he
arrested X. The police officer did not receive the money
given as bribe. Can X who is trying to give the bribe
money which was not accepted by the police officer be
held liable for Attempted Corruption of Public Official?
(BAR 2018, 2019)
A: Legal luminaries are divided. Reason is in Article 212,
there is a statement that the penalty will be the same as the
public officer corrupted. In this case, the public officer was
not corrupted because he did not receive the bribe.
Therefore, some says that there is no criminal liability.
However, (Prosecutor Garcia does not agree), there is a case
Pozar vs. People. Likewise, look at the phraseology of the
law, if the public officer did not receive the said bribe money
given to him, the giver of the bribe will liable for
attempted corruption of public officials. The phrase
under Art. 212 which states that the penalty shall be the
same as that of the public officer corrupted simply means
that the penalty for consummated and attempted direct
bribery will be the same as the penalty for consummated
and attempted corruption of public official. It doesn’t
absolve the giver of the bribe for any liability in case of non-
acceptance of the bribe.
Q: What if in the early morning, the police officer who is
patrolling the area, saw this two persons fighting
against one another. This two persons were engaged on
a fight, the police officers ran toward them, blowing his
whistle. But it was too late, one of the person by name
of X has already stabbed Y, three times. X ran away but
the police officers chased him. And so he was arrested.
Y was brought to the hospital but Y was pronounced
dead on arrival.
The police officers brought X to the police station. While
he was being investigated, his family arrived and the
family handed to him inside a plastic envelope, the
amount of P100,000. X gave to the police officers the
amount of P100,000 to stop them from filing the case
against him. Since the police officers were in need of
money, they accepted it. They allowed X to leave. They
did not file any complaint before the Office of the
Prosecutor although they chanced upon X inflagrante
delicto.
What crime/crimes has been committed by the said
public officer and by X?
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A: First, as to X, the crime committed is Homicide and not
Murder because the alleged act of stabbing happened in the
course of a fight. The case to be filed against X should be
Homicide but the police officers does not want to arrest him
because of the bribe money given to him.
(Prosec did not made mention of Corruption of Public Officials
as against X, baka nalimot lang niya)
As to the police officer, he is liable for Direct Bribery
under Art. 210, third act by refraining to do an official duty
which the law requires him to do. He is mandated by law to
arrest and to cause the prosecution of a person who has
been caught inflagrante delicto committing a crime of
killing another person.
He actually refrained from causing the arrest of the said
person. Therefore, in addition to Direct Bribery, he is also
liable for Dereliction of Duty in the prosecution of
offenses under Art. 208.
Q: What if what the police officers saw is that it was
raining, it was passed 8 pm and the PO noticed this man
(X) who is hiding behind the tree. There was his
motorcycle and he seemed to be looking to the house
which is adjacent to the next street. The PO were about
to approach him when suddenly they saw that when the
owner of the house arrived and is opening the gate, they
saw the man behind the tree, rushed towards the man
opening the gate and repeatedly stabbed him on the
back. The PO ran towards the said person and they
were able to catch him, they brought the person
opening the gate who was stabbed repeatedly to the
hospital but that person was pronounced dead on
arrival. They brought X to the police station. The
relatives of X arrived, they have this envelope which
contains P100,000 and X told the PO “Sir, here. This
might help you. Just don’t arrest me. Don’t file a case as
if you didn’t see what happen.” And so the PO accepted
and allowed X to leave. They did not file any complaint
against X.
What crime is committed by the police officer?
A: He is liable for Qualified Bribery. The police officer is in
charge with law enforcement. They caught X waiting for the
arrival of the intended victim and the moment the intended
victim arrived, he stabbed him repeatedly at the back. There
was treachery. Therefore, the crime committed by X is
Murder. The penalty for Murder is reclusion perpetua to
death yet the said PO didn’t file a case against him because
of the P100,000. Therefore, the crime committed is
Qualified Bribery under Art. 211-A.
Q: What if X was charged with the crime of Estafa. After
trial on the merits, the judge said the case is now
submitted for decision. X was out because he posted
bail but X was always present during the meeting and
he knew that the prosecution was able to prove his
Criminal Law Review
Prosecutor Victoria C. Garcia
guilt. He didn’t want to be behind bars. X went to the
house of the judge and he told the judge “Sir, Your
Honor, I really didn’t want to go behind bars, I have
here with me P50M, if you would accept this, please do
not convict me.” The judge took the money. On the day
of the promulgation of judgment, instead of convicting
X even if all the evidence points to him and even if all
the elements were proven by the State, still the judge
ruled for an acquittal. Because of that an investigation
was conducted because the private complainant was
mad, and so what the judge has done was discovered. As
a result the judge was charged with the following, will
all these cases prosper?
Can all these cases be filed against him at the same
time?
A: Yes. He can be charged these four crimes all at the same
time. One does not exclude the other.
a. Direct Bribery
He is liable for Direct Bribery. He renders an unjust
judgment when the evidence shows that the
prosecution was able to prove the guilt of X. However,
because of the P50M that he received from the said
accused, he acquitted the said accused. Therefore, he
committed Direct Bribery under the first act. He
received that P50 in exchange for the commission of a
crime – Knowingly Rendering an Unjust Judgment.
b. Knowingly Rendering an Unjust Judgment
Since he actually committed the crime agreed upon, he
is also liable for violation of Art. 204.
c. Violation of Sec. 3(e ) of RA 3019
Elements:
1. The said offender was in charge of his official,
administrative or judicial function;
The judge is a public officer who is rendering a
judicial function.
2. That he acted with manifest partiality, evident bad
faith or gross inexcusable negligence;
He acted with evident bad faith. The prosecution
was able to prove the guilt yet he acquitted the said
accused.
3. The said accused caused any undue injury to any
party, including the government, or gave any
private party unwarranted benefits, advantage, or
preference in the discharge of his official functions.
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He caused undue injury both to the State and to the
private complainant. As to the State, he cause
disturbance of public order. As to the private
complainant, the injury he caused.
With all these elements being present, the judge is
liable for violation of Sec. 3(e) of RA 3019.
d. Plunder
The judge is not liable. Even if the amount received
by the judge was P50M, the aggregate amount
necessary in case of Plunder. In order for one to be
liable for Plunder, it is necessary that he commits a
series or combination of overt or criminal act. In
this case, there was no series or combination of act
but rather he performed only one act. That one act
will not give rise to the crime of plunder even if he
the amount he received is the threshold amount of
P50.
NOTE: The judge may be PROSECUTED of all these cases.
But he can only be CONVICTED of the three cases.
Q: Is it correct to convict the judge of Direct Bribery as
well as Knowingly Rendering of Unjust Judgment and at
the same time convict him of Violation of RA 3019, will
it not amount to double jeopardy, to duplicity of
offenses?
A: No. Because it is expressly provided under Section 3 of
RA 3019 that ‘in addition to the acts or offenses committed
by public officers punished by any law, the acts of graft and
corrupt practices can be filed against him.’
RA 3019 will always be in addition to any act or omissions
committed by public officers. Hence, double jeopardy will
not arise.
RA 3019
THE ANTI-GRAFT AND CORRUPT PRACTICES ACT
▪ Violation of RA 3019 should be filed before the
Sandiganbayan.
▪ Where do you file the complaint? It must be in the
Office of the Ombudsman. In cases of RA 3019, it is
the Ombudsman that acts as the prosecution, it is
the representative of the State as well as in the case
of Plunder.
▪ The moment the Ombudsman found probable
cause, the case is filed either before the
Sandiganbayan or before the RTC.
▪ If the public officer charged is of Salary Grade “27”
or above, the case must be filed before the
Sandiganbayan. But if the public officer is of Salary
Grade of below “27”, the case is to be filed before
the proper trial court.
Criminal Law Review
Prosecutor Victoria C. Garcia
SECTION 11 – PRESCRIPTION OF OFFENSES
▪ Violation for RA 3019 shall prescribe after 20
years. Therefore, the State has 20 years within
which to prosecute the said public officer. After 20
years, the State loses the right to prosecute the
offender.
▪ However, the right of the government to forfeit or
to recover ill-gotten wealth does not prescribe. So
there are no latches and estoppel insofar as the
right of the government to recover ill-gotten
wealth is concerned. There is no time limit.
Q: X is a public officer and he was charged before the
Office of the Ombudsman in a contract or transaction,
he receives gifts/presents in the said contract or
transaction where he has to intervene. He was charged
with violation of Sec. 3(b) of RA 3019 before the Office
of the Ombudsman. The Office of the Ombudsman found
probable cause, it filed the Information before the
Sandiganbayan because X have the Salary Grade of
beyond “27”. The Sandiganbayan upon review of the
case found also probable cause and so the
Sandiganbayan immediately issued a warrant of arrest.
The Sandiganbayan also placed X under preventive
suspension. The counsel of X did not question the said
warrant of arrest and immediately posted bail.
However, they questioned the act of the Sandiganbayan
in placing him under preventive suspension.
Is the Sandiganbayan correct in placing the X under
preventive suspension?
A: Yes. Because based on the facts, the SB placed X under
preventive suspension after the SB has found probable
cause.
Placing a public officer under preventive suspension is
considered as mandatory but not automatic. It is mandatory
because it is the duty of the SB to place him under
preventive suspension because the law used the word
“shall”. However, before it may become mandatory on the
part of the SB, it is necessary that there must first be a
finding of probable cause. Hence, it is not automatic.
The finding of probable cause of the Ombudsman will not
suffice. There must also be a probable cause determined by
the Sandiganbayan in itself.
Q: How is the probable cause determined? Is the
Information filed by the Office of Ombudsman sufficient
in form and substance as to bring about the conviction?
A: If it is, then there is probable cause. The moment the SB
found probable cause, it is now mandatory/ministerial on
the part of the SB to place the said public officer under
preventive suspension.
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As early as the case of Bayot vs. Sandiganbayan, the
Supreme Court has already upheld the constitutionality of
Sec. 13 of RA 3019 which provides for preventive
suspension. It is constitutional because preventive
suspension is not a penalty imposed after trial of the merits.
It is only a preventive measure. Its purpose is to prevent the
said accused public officer from hampering or frustrating
his prosecution by influencing or coercing witnesses or by
tampering pieces of evidence or by committing further
criminal acts. Since the purpose of a preventive suspension
is merely for a preventive measure and not a form of
penalty, the Supreme Court ruled it is constitutional.
If the gifts given to a public officer are of insignificant value
which is given to the public officer as a token of gratitude or
as a token of thank you, the said public officer receiving it is
not liable under RA 3019 as provided for under Section 14
of the law. Insignificant gifts of small value which is given as
a mere ordinary token of friendship or gratitude is outside
the ambit of RA 3019.
Ex: Isang Bilaong Puto; Isang Bilaong Pansit;
ARTICLE 213 – FRAUDS AGAINST THE PUBLIC
TREASURY AND SIMILAR OFFENSES
Article 213 punishes two (2) acts:
1. Fraud against public treasury (par.1)
2. Illegal exactions (par. 2)
ELEMENTS OF FRAUD AGAINST PUBLIC TREASURY
(ART. 213, PAR. 1):
1. That the offender is a public officer;
2. That he should have taken advantage of his office,
that is he intervened in the transaction of his
official capacity;
3. That he entered into an agreement with any
interested party or speculator or made use of any
other scheme with regard to:
a. furnishing supplies
b. the making of contracts
c. the adjustment or settlement of accounts
relating to public property or funds
4. That the accused had intent to defraud the
Government.
▪ It is necessary that there is on the part of the public
officer an INTENT TO DEFRAUD the public
treasury.
▪ Actual fraud is not necessary. It suffices that when
the said public officer entered into the said contract
with an interested party or speculators, it is
necessary that there is intent to defraud the public
Criminal Law Review
Prosecutor Victoria C. Garcia
treasury. IT IS NOT NECESSARY THAT THE
TREASURY BE ACTUALLY DEFRAUDED.
ELEMENTS OF ILLEGAL EXACTION (ART. 213, PAR. 2)
1. That the offender is a public officer entrusted with
the collection of taxes, licenses, fees and other
imposts.
2. He is guilty of any of the following acts or
omissions:
(1) Demanding, directly or indirectly, the payment
Of sums different from or larger than those
authorized by law; or
▪ A mere demand of an amount different
from that authorized by law will the make
the offender liable. It is immaterial
whether that amount is greater or smaller
than that authorized by law. For as long as
it is different, a mere demand will suffice.
It is not even necessary that he already
received the same.
(2) Failing voluntarily to issue a receipt, as
provided by law, for any sum of money collected by
him officially; or
▪ All collecting officers are required to issue
an Official Receipt for any sum of money
collected by them.
▪ If the said collecting officer deliberately
failed to issue an official receipt, done with
malice or deliberate intent, he becomes
liable.
▪ But if the collecting officer issued a
provisional receipt, only in a piece of
paper, because he runs out of Official
Receipt, he cannot be held liable because it
was not voluntary. It was not deliberate.
(3) Collecting or receiving, directly or indirectly, by
Way of payment or otherwise, things or objects of
a nature different from that provided by law.
▪ Receipt of the collecting officer of anything
other than cash will make him liable.
▪ In Illegal Exaction, the offender is a COLLECTING
PUBLIC OFFICER. A public officer who has been
entrusted with duty to collect taxes, licenses, fees
or other imposts.
Q: X paid his renewal fees for his business license, the
amount to be paid based on the ordinance is P12,000. X
paid the said amount. However, the cashier W told X
that the payment is lacking because it costs P15,000.
The cashier W told X that there is a new ordinance
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regarding the higher amount to be paid. X paid the
additional P3,000. W received the same. Thereafter, X
told W “Can I have my official receipt?” W said “You
come back next week because I ran out of receipt. Here
is a provisional receipt instead.” After receiving such, X
left. W placed the entire P15,000 inside the vault.
Thereafter, he continued doing his duty. In the
afternoon, he was about to leave when he remembered
the excess P3,000. W opened the vault, took the P3,000,
closed the vault. Before going home, he passed by a
grocery and brought groceries for his family. What
crime/crimes are committed by the said public officer?
A: First, he is liable for Illegal Exaction under the first act.
He demanded an amount larger than that required by the
city ordinance for the renewal of the said business which
should only be P12,000 but he demanded P15,000. There
was an excess of P3,000;
Second, he is liable for the second act of Illegal Exaction.
He failed to issue the official receipt. He deliberately didn’t
issue the receipt even though he has many because he
wants to conceal the said collection.
Note that in Illegal Exaction, it only refers to the violation of
the rules on collection. It does not include the act of
misappropriating the excess amount collected. Therefore,
when W got the said P3,000 from the public vault and used
it for his personal needs for buying groceries. He becomes
liable in addition to Illegal Exaction for Malversation of
Public Funds and Property under Art. 217. The moment
he misappropriated the said amount of collection.
Although the P3,000 is a private fund because the city
ordinance requires only P12,000, when cashier W mixed it
entirely in the said public vault. The said act of comingling
the P3,000 excess collection together with public funds in
the vault, it is now considered a part of public funds. It loses
its character as private funds. When X opened the vault in
order to get the P3,000, he was getting a part of public
funds. Therefore, he becomes liable for Malversation of
Public Funds and Property.
ARTICLE 214 – OTHER FRAUDS
ELEMENTS:
1. Offender is a public officer;
2. He takes advantage of his official position;
3. He commits any of the frauds or deceits
enumerated in Articles 315-318
ARTICLE 215 – PROHIBITED TRANSACTIONS
ELEMENTS:
Criminal Law Review
Prosecutor Victoria C. Garcia
1. Offender is an appointive public officer;
2. He becomes interested, directly or indirectly in any
transaction of exchange or speculation;
3. Transaction takes place within the territory subject
to his jurisdiction;
4. He becomes interested in the transaction during
his incumbency
ARTICLE 216 – POSSESSION OF PROHIBITED
INTEREST BY A PUBLIC OFFICER
PERSONS LIABLE:
1. Public Officer who, directly or indirectly, became
interested in any contract or business in which it
was his official duty to intervene.
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, distribution or adjudication of
which they had acted.
3. Guardians and executors with respect to the
property belonging to their wards or the estate.
ARTICLE 217 – MALVERSATION OF PUBLIC FUNDS
OR PROPERTY (PRESUMPTION OF MALVERSATION)
ELEMENTS:
1. Offender is a public officer or employee;
2. He has the custody or control of funds or property
by reason of the duties of his office;
3. Those funds or property were public funds or
property for which he was accountable;
4. He appropriated, took, misappropriated or
consented, or through abandonment or negligence,
permitted another person to take them.
Q: Who is the offender?
A:
▪ The offender is a public officer who is entrusted by
law to collect public funds and property and to
account it later to the State. He is an
ACCOUNTABLE PUBLIC OFFICER.
▪ An accountable public officer is one who by reason
of the duties of his office, is given funds and
properties which he has the obligation to account
later to the State.
Q: What did he do to the said public funds and property
which he must account later to the State?
A: He took, appropriated, misappropriated or he consented
to its appropriation or by reason of his abandonment or
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negligence, he permitted another to misappropriate this
public funds and property.
TWO WAYS OF COMMITTING MALVERSATION
▪ Malversation can be committed either through a
positive act, which is through deliberate intent or
through dolo. He is the one who appropriates or
misappropriates, who took the the said public
funds or property.
▪ OR through a passive act which is through his
abandonment or negligence, or culpa. He allowed
others to appropriate or misappropriate the said
public funds or property.
Q: What if X was making this collection and then
suddenly, he got a phone call from her husband. He was
outside and needed to give something to her. She
excused herself. She told the other cashier that she got
a call from her husband and that her husband has to
give something to her very quick and so she has to
leave. She left and closed her vault. However, she left
the key there. When the other cashier Y saw it, Y went
to X’s seat, opened the vault and took P20,000 from the
collection of X. After 15 minutes, X returned. That day,
two auditors from the Provincial Auditor’s Office
arrived to conduct a surprise audit and in the said
audit, it was discovered that P20,000 were missing
from the collection of X. X was informed, she could not
explained. There was a demand coming from a
competent public authority to X to account for public
funds and property and the same was not forthcoming.
Hence, the law presumes that X was the one who
misappropriated the same. As a result, X was charged
with the crime of Malversation.
During the trial of the case, when X was presented in
court, she deliberately denied and said that she was not
able to give an explanation because she was shocked for
the said shortage. She moved in open court that the
CCTV footage be brought to court. It was then
discovered that it was Y who took the same. Because of
this, the judge convicted X of Malversation through
Negligence although the Information alleges
Malversation through Dolo.
X filed an appeal and her main argument is that the
judge convict her for Malversation through Negligence,
in an Information that alleges Malversation through
Dolo or Deliberate Intent because in doing so, she was
denied of the right to be informed of the nature and
cause of the accusation against him and she was denied
to rebut the allegation. Is her argument meritorious?
A: In the case of Torres vs. People, the Supreme Court said
‘no’. Even if the Information filed in court is Malversation
through Dolo or deliberate intent, the court can correctly
convict the accused for Malversation through Culpa or
Negligence if that is what the evidence has proved.
Criminal Law Review
Prosecutor Victoria C. Garcia
The said accused cannot claim that he was deprived to be
informed of the nature and cause of the accusation against
him because:
First, Malversation through Culpa or Negligence is
necessarily included in Malversation through Dolo or
Deliberate Intent.
Second, the dolo or the culpa are merely modalities in the
commission of malversation. They are mere ways of
committing malversation but the same act of Malversation
is defined and punished by law.
Hence, it is correct for the court to convict an accused of
Malversation through Negligence or Culpa even if the crime
charged is Malversation through Dolo or Deliberate Intent
if that is what the evidence has proven.
Q: What if the police officer arrested X because X was
caught in possession of a loose firearm – a homemade
caliber .38 revolver. It is not licensed. X was charged
with violation of RA 10591 or Illegal Possession of Low
Powered Firearm. During the hearing of the case, the
fiscal moved that a subpoena be issued to the PNP
custodian who was said to be in custody of the said
firearm. The custodian received the said subpoena
duces tecum and ad testificandum. However, he did not
appear in court. He did not bring the firearm. The fiscal
moved for another subpoena which was received but
again, the PNP custodian did not appear.
The judge issued a Show Cause Order against the PNP
Custodian. In the PNP Custodian’s explanation, he
admitted that he could no longer present the gun
because he sold it. What crime is committed by the
police officer?
A: He is liable for Malversation under Art. 217. He is a public
officer. He has in his possession this gun by reason of his
duties as the custodian of the PNP and he has the obligation
to account for the gun later to the State. However, he
appropriated it by selling the gun.
Q: What if he argued that the gun belongs to a private
person, the case is not yet decided. Therefore, it cannot
be considered as public property.
A: His argument is wrong. There is no need for decision
before the said gun can be considered as public property.
The moment private property has been seized, attached,
deposited by public authorities, they become a part of
public funds and property which when they are taken,
appropriated, misappropriated, the crime committed is
Malversation.
Q: Is demand necessary?
A: Under Art. 217, when demand is made by competent
officer to an accountable public officer to account for public
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funds and property and the same is not forthcoming, the law
presumes that the said public officer has appropriated,
misappropriated or taken the said public funds or property.
Upon demand, when the said public officer cannot produce
the shortage, cannot produce the loss, the law creates a
prima facie presumption that he misappropriated the same.
However, the Supreme Court added that mere demand will
not suffice. It is necessary that there must be complete,
thorough and reliable audit.
In the said complete, thorough and reliable audit, the
following were discovered:
a. The public officer indeed receive the public funds
or property.
b. The said public funds and property was missing, or
there was a shortage, or he cannot produce it, and
c. The said public officer cannot give a justifiable
reason, a legal excuse for the said shortage or
missing of public funds or property.
If all of these are present, the Supreme Court says that there
arises the prima facie presumption that there is
malversation of public funds or property.
▪ There is no need for a direct evidence. It can be
proven by prima facie evidence and circumstantial
evidence.
ARTICLE 218 – FAILURE OF ACCOUNTABLE OFFICER
TO RENDER ACCOUNTS
ELEMENTS:
1. Offender is a public officer, whether in the service
or separated therefrom
2. He must be an accountable officer for public funds
or property;
3. He is required by law or regulation to render
accounts to the Commission on Audit, or to a
provincial Auditor;
4. He fails to do so for a period of two months after
such accounts should be rendered.
ARTICLE 219 – FAILURE OF RESPONSIBLE PUBLIC
OFFICER TO RENDER ACCOUNTS BEFORE LEAVING
THE COUNTRY
ELEMENTS:
1. Offender is a public officer;
2. He must be an accountable officer for public funds
or property;
Criminal Law Review
Prosecutor Victoria C. Garcia
3. He must have unlawfully left (or be on the point of
leaving) the Philippines without securing from the
Commission on Audit a certificate showing that his
accounts have been finally settled.
Q: X is the city administrator and based on the city
ordinance, the amount of P1M has been entrusted to
him for purposes of buying some of the vaccines for
COVID-19. There was an audit conducted and all this
amounts were gone. By reason thereof, he was charged
with the crime of Malversation under Art. 217. During
the trial the merits, when he brought to the court to
testify, X said that it was true that he received P1M and
the purpose thereof is to buy the vaccines for COVID-19.
However, according to him, since the vaccine has not
yet arrived and based on the agreement entered into by
their LGU with the pharmaceutical company, since the
vaccine will arrived at late September, he deemed it
appropriate to use first the P1M to buy laptops for the
school children in order to enhance their home
education. He said that he acted in good faith.
The judge convicted him of Technical Malversation
under Art. 220. Is the judge correct?
A: The judge is wrong because the Information filed is
Malversation under Art. 217. Since the Information filed is
Malversation, it is erroneous on the part of the court to
convict him of Technical Malversation because Technical
Malversation is not necessarily included in Malversation
under Art. 217. They are two separate and distinct felonies.
What the judge should do is to acquit the accused for the
crime of Malversation and then thereafter, to file a case for
Technical Malversation. OR the fiscal could move for the
withdrawal of the said Information for Malversation and file
a new one which is Technical Malversation in order to
conform to the evidence.
ARTICLE 220 – ILLEGAL USE OF PUBLIC FUNDS OR
PROPERTY (Technical Malversation)
ELEMENTS:
1. Offender s a public officer;
2. There is a public fund or property under his
administration;
3. Such public fund or property has been
appropriated by law or ordinance; and
4. He applies the same to a public use other than that
for which such fund or property has been
appropriated by law or ordinance.
▪ For one to be liable, it is necessary that the funds in
his possession which he is tasked to administer has
been appropriated by law or ordinance for a
particular purpose and he applied it not for himself
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but for another public use other than that for which
it has been appropriated by law or ordinance. Q: Ten public officers has been charged with the crime
There is technicality in the application of funds of Plunder. Before the court, it was stated that these ten
because there was transfer of funds. public officers connived, conspired with one another in
amassing, accumulating ill gotten wealth in the
Malversation under Art. Technical Malversation aggregate amount of P386M. During the trial of the
217 under Art. 220 merits of the case, the counsel moved to file a demurrer
The offender public officer The offender public officer to evidence. According to the counsel, the prosecution
is entrusted with public is entrusted with public failed to prove the presence of plunder because in the
funds and property for his funds and property for his Information, it was not alleged who was the main
custody. administration. plunderer, who was the main public officer who
The public funds and The public funds and amassed or accumulated the said ill-gotten wealth. The
property must be property must be applied Sandiganbayan denied it. They appealed in the
accounted later by the to that particular purpose Supreme Court. What should be the decision of the
public officer to the State. for which it has been Supreme Court?
appropriated by law or A: In the case of GMA vs. People, the Supreme Court ruled
ordinance. that the in the crime of Plunder, it is necessary that the
The public officer took, The public officer applied public officer who principally amassed, accumulated or
appropriated or it to another public use acquired ill-gotten wealth must be expressly stated. The
misappropriated the said other than to that which it main plunderer must be identified in the Information.
public funds and property. has been appropriated by Absent that, these accused cannot be convicted. The SC
law or ordinance. ruled that the amount allegedly malversed was P386M,
Malum in se Malum prohibitum since the main plunderer cannot be identified. Therefore,
each of them would amassed only 1/10 th of the P386M.
▪ In Ysidoro vs. People, Technical Malversation, Therefore, the amassed only P38M each which is below the
although punished under Art. 220 is not malum in threshold of P50M. In the case, the SC acquitted GMA. While
se but malum prohibitum. Therefore, good faith or the others are still facing conviction but not for Plunder.
lack of criminal intent is not a defense. What is
punished is the mere transfer of funds from that to ▪ It is necessary that the main plunderer be
which it has been appropriated by law or ordinance identified.
to another public purpose. ▪ Plunder is committed by any public officer, who by
himself or in connivance with members of his
Q: Can Malversation be committed by private family, relatives by affinity or consanguinity,
individuals? business associates, subordinates or other persons,
A: Yes. If the said private individuals acted: amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or
a. As conspirator of the public officer in the act of criminal acts, in the aggregate amount or total
committing Malversation. value of at least Fifty million pesos
b. As an accomplice or accessory. (P50,000,000.00).
c. Has been designated as the one in charge or the ▪ If it is any amount lower than 50M, it is any other
custodian of public funds or property whether by crime but not the crime of Plunder.
the national or local government and he ▪ In Estrada vs. Sandiganbayan, the Supreme Court
misappropriated the same. said that Plunder is malum in se because it is
d. Has been charged as the administrator of funds and inherently evil or wrong to amass or accumulate ill-
property seized, attached or deposited by public gotten wealth from the State.
authorities and he misappropriated the same. ▪ In Section 2 of RA 7080, the penalty for Plunder is
reclusion perpetua to death. It has the same
Q: Can private funds be the subject of Malversation? nomenclature of penalty as the Revised Penal Code.
A: Yes. If these private funds has been seized, attached or Under Sec. 2, it is provided in the imposition of
deposited by public authorities. It becomes in custody of the penalty, mitigating and extenuating circumstances
law. The moment that it is in custodia legis and it is and the degree of the participation of the offender,
appropriated, misappropriated or converted then the shall be considered by the court.
offender becomes liable for Malversation. ▪ Voluntary Surrender may be considered if the said
amount has been returned. Restitution can be
considered as analogous voluntary surrender.
▪ Mitigating and Extenuating circumstances may be
RA 7080
considered so as to lower the penalty but NOT
PLUNDER LAW
aggravating circumstances.
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Q: Can private individuals be held liable for the crime of
Plunder?
A: In the case of Napoles vs. Sandiganbayan, the Supreme
Court said yes. It is settled that private individuals can also
commit the crime of Plunder. It is not only the public officer
but all his cohorts, co-conspirators which ae liable. And if
this cohorts and co-conspirators are private individuals,
they too can be charged with the crime of Plunder.
▪ Under Section 4, in order to prove the crime of
Plunder, it is not necessary to prove each and every
overt act alleged in the Information that would give
rise to the conspiracy of Plunder. It is sufficient to
prove a pattern of overt or criminal act which is
indicative of the overall unlawful scheme.
Example #1: In an Information against X, it was
alleged that he committed 10 acts of Malversation,
10 counts of misuse of public funds, 10 acts of
fraudulent conveyance of public property. All in all,
30 acts. In the Information, he committed this 30
acts in connivance with his Subordinates A, B, C, D
and E. The case will never end if you will present all
this 30 acts, all the witnesses in every 30 acts. What
the law requires is only a pattern of overt or
criminal act indicative of overall unlawful scheme.
PROVIDED, the amount proven is P50M.
▪ Plunder prescribes after 20 years from the time
that the last act has been committed. Therefore,
after 20 years the State loses the right to prosecute
the public officer who amassed the ill-gotten
wealth.
▪ However, the right of the State to recover ill-gotten
wealth cannot be stopped by prescription, by
laches or estoppel.
Q: The State became suspicious of X, his lifestyle
changed and so there was an investigation. Based on
the investigation, he committed 10 acts involving this
projects and he committed violations of Sec. 3(g) of RA
3019, he entered into 10 transactions. By reason
thereof, he was able to amass P50M in the said 10
transactions. And then, it was also discovered that he
committed 5 acts of Direct Bribery as a result he
amassed P30M. So it’s already P80M. Thereafter, he
also committed certain acts violation Section 3(b) of RA
3019, he received gifts and presents in a transaction
which has a duty to intervened. He also committed 5
acts wherein he was able to amass another P20M. In
this case, he was able to amass all in all P1B. What crime
is committed?
A: Plunder. (Don’t include Malversation etc., because they
are only predicate crimes and they are all merged in this
crime of Plunder because he was able to amass P1B.)
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: Let us say that based on his SALN, his assets only
amounts to P10M. Will your answer be the same?
A: Yes. In the crime of plunder, the asset of the public officer
as stated in the SALN is not taken into consideration. What
is important is the amount of money that he amassed,
accumulated or acquired. In the problem, the amount of
money he accumulated is P1B.
ARTICLE 221 – FAILURE TO MAKE DELIVERY OF
PUBLIC FUNDS OR PROPERTY
ELEMENTS:
1. That the public officer has government funds in his
possession;
2. That he is under obligation to make payments from
such funds;
3. That he fails to make payment maliciously.
PUNISHABLE ACTS:
1. Failing to make payment by a public officer who is
under obligation to make such payment from
Government funds in his possession;
2. Refusing to make delivery by a public officer who
has been ordered by competent authority to
deliver any property in his custody or under his
administration
ARTICLE 222 – OFFICERS INCLUDED IN PRECEDING
PROVISIONS
Private Individual who may be liable under Art. 217-
221:
1. Private Individual who in any capacity whatsoever,
have charge of national, provincial or municipal
funds, revenue or property;
2. Administrator, depository of funds or property
attached, seized or deposited by public authority
even if such property belongs to a private
individual;
3. Those who acted in conspiracy in malversation;
4. Accomplice and accessories to malversation.
INFIDELITY IN THE CUSTODY OF PRISONERS
(Articles 223, 224, 225)
ARTICLE 223 – CONNIVING WITH OR CONSENTING
TO EVASION
ELEMENTS:
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so, all of them were on the right portion of the jeepney
1. Offender is a public officer; while the police officers were on the left. They told the
2. He has in his custody or charge a prisoner, either passengers to move further. The jeepney stopped
detention prisoner or prisoner by final judgment; because someone is to alight. The moment the jeepney
3. Such prisoner escaped from his custody; stopped, detention prisoners A B C jumped outside the
4. That he was in connivance with the prisoner in the jeepney and ran as fast as they could. The police officers
latter’s escape, or is with his consent; X and Y tried to chase them but to no avail. They were
not able to arrest the detention prisoners. What
crime/crimes are committed by the jail guards?
A: They are liable for Infidelity in the Custody of Prisoners
ARTICLE 224 – EVATION THROUGH NEGLIGENCE under Art. 224. They have been entrusted with the custody
of the said prisoners and the said prisoners escaped by
reason of their negligence. They should not have boarded
ELEMENTS:
the said prisoners in the public vehicle. They should have
waited for the BJMP vehicle. All they had to do is to call the
1. Offender is a public officer;
court and inform the judge that the vehicle has not yet
2. He is charged with the conveyance or custody of a
arrived. The judge can schedule the case later. In boarding
prisoner, either detention prisoner or prisoner by
the detention prisoners in the public vehicle, they are
final judgment;
negligent. Therefore, they are liable for Infidelity in the
3. Such prisoner escapes through his negligence.
Custody of Prisoners.

ARTICLE 225 – ESCAPE OF PRISONER UNDER THE

INFIDELITY IN THE CUSTODY OF DOCUMENTS
CUSTODY OF A PERSON NOT A PUBLIC OFFICER
(ARTICLES 226, 227, 228)
ELEMENTS:
ARTICLE 226 – REMOVAL, CONEALMENT OR
DESTRUCTION OF DOCUMENT
1. Offender is a private individual;
2. Conveyance (or charge) of custody of prisoner or
ELEMENTS:
person under arrest is confided to him;
3. Prisoner or person under arrest escapes;
1. Offender is a public officer;
4. Offender consents to the escape of the prisoner or
2. He removes, destroys, or conceals documents or
person under arrest or that the escape takes place
papers;
through his negligence.
3. Said documents or papers should have been
entrusted to such public officer by reason of his
▪ Whether he is a public officer entrusted with the
office;
custody of a prisoner or a private individual
4. Damage, whether serious or not, to a third party or
entrusted with the custody of the prisoner, it is
to the public interest should have been caused.
necessary that the said prisoner escapes either
because he connives, consents or there was
The public officer has been entrusted with those documents
negligence.
by reason of the public office. The said public officer
▪ The offender must be the one entrusted with the
removes, conceals or destroys the said documents thereby
prisoner’s custody. He must be the custodian.
causing damage, whether serious or not, to any person or to
▪ As opposed to Delivering Prisoner from Jail under
public interest.
Art. 156, wherein the person who removed the
prisoner from jail is not the custodian of the
Damage must be caused to another, but that damage need
prisoner.
not be serious in nature.
Q: A, B and C are detention prisoners being held liable
for the crime of Murder. They have their hearing set
that day. The start of the hearing is 8:30 am. The BJMP ARTICLE 227 – OFFICER BREAKING SEAL
is about 30 minutes away from the court of justice that
has jurisdiction over the case. It was already 8:15 am ELEMENTS:
and the BJMP vehicle that would bring them to the court
has not yet arrived. And so, the custodian guards placed 1. Offender is a public officer ;
handcuffs on them and brought them to the streets. 2. He is charged with the custody of papers or
Thereafter, they flagged down a jeepney. The police property;
officers X and Y told the detention prisoners to sit and
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3. These papers or property are sealed by proper 1. Offender is a public officer;
authority; and 2. He knows of a secret by reason of his official
4. He breaks the seals or permits them to be broken. capacity;
3. He reveals such secret without authority or
The offender is a public officer entrusted with the said justifiable reasons; and
documents sealed b proper authority. And the said public 4. Damage, great or small, is cause to the public
officer breaks the seal or permitted others to break the seal interest.
of the said documents. It is necessary that there be damage caused,
whether serious or not.
The MERE ACT BREAKING of the seal of the document will
already consummate the crime. II. Wrongfully delivering papers or copies of papers of
which he may have charge, and which should not be
published thereby causing damage, whether serious or not,
ARTICLE 228 – OPENING A CLOSED DOCUMENT to a third party or to public interest.

ELEMENTS: ELEMENTS:

1. Offender is a public officer ; 1. Offender is a public officer;

2. Any closed papers, documents, or objects are 2. He has charge of papers;
entrusted to his custody; 3. Those papers should not be published;
3. He opens or permits to be opened said closed 4. He delivers those papers or copies thereof to a
papers, documents or objects; and third person;
4. He does not have proper authority 5. The delivery is wrongful; and
6. Damage is caused to public interest
The offender is a public officer, and he has been entrusted
with the custody of documents, papers, property closed by
public authority. The said public officer opened or permit ARTICLE 230 – PUBLIC OFFICER REVEALING SECRETS
others to open them without authority. OF PRIVATE INDIVIDUAL

Q: X has been entrusted with this confidential ELEMENTS:

document sealed in an envelope and there was the seal
of office pasted therein in the said envelope and sealed 1. Offender is a public officer;
close. He was entrusted with the said document to bring 2. He knows of the secrets of private individual by
it to another department in another town. He was reason of his office; and
entrusted to be custodian of the said document. 3. He reveals such secrets without authority or
However, on his way to the said department, he opened justifiable reason.
it. But he did not break the seal. The seal was still there.
He opened it properly. As a result, the seal was not
broken. Is he liable for any crime? ARTICLE 231 – OPEN DISOBEDIENCE
A: He is liable of OPENING CLOSED DOCUMENTS. If the
document was sealed but the seal was not broken, then he ELEMENTS:
opened it. He is still liable not under Article 227 but in
Article 228 because he still opened the sealed document 1. Offender is a judicial or executive officer;
entrusted. Therefore, he is liable of infidelity in the custody 2. There is judgment, decision, or order of a superior
of documents. authority;
3. Such judgment, decision or order was made within
the scope of the jurisdiction of the superior
ARTICLE 229 – REVELATION OF SECRETS BY AN authority and issued with all the legal formalities;
OFFICER and
4. Offender without any legal justification openly
Punishable acts: refuses to execute the said judgment, decision or
order which he is duty bound to obey.
I. By revealing any secrets which affect public interest
learned by him in his official capacity
ARTICLE 232 – DISOBEDIENCE TO ORDER OF
ELEMENTS: SUPERIOR OFFICER, WHEN SAID ORDER WAS
SUSPENDED BY INFERIOR OFFICER
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ELEMENTS:
1. Offender is a public officer;
2. An order is issued by his superior for execution;
3. He has for any reason suspended the execution of
such order;
4. His superior disapproves the suspension of the
execution of the order; and
5. Offender disobeys his superior despite the
disapproval of the suspension.
The offender refuses to disobey the suspension of the said
order which was disapproved by the said public officer.
ARTICLE 233 – REFUSAL OF ASSISTANCE
ELEMENTS:
1. Offender is a public officer;
2. Competent authority demands from the offender
that he lend his cooperation towards the
administration of justice or other public service;
and
3. Offender fails to do so maliciously Public officer
who shall fail to lend his cooperation towards the
administration of justice or any other public
service despite demand by competent authority.
ARTICLE 234 – REFUSAL TO DISCHARGE ELECTIVE
OFFICE
ELEMENTS:
1. Offender is elected by popular election to a public
office;
2. He refuses to be sworn in or to discharge the duties
of the said office; and
3. There is no legal motive for such refusal to be
sworn in or to discharge the duties of said office.
ARTICLE 235 – MALTREATMENT OF PRISONERS
ELEMENTS:
1. Offender is any public officer;
2. He has in his custody a prisoner ; and
3. The said public officer maltreats commits any act of
maltreatment:
a. By overdoing himself in the correction or
handling of a prisoner or detention prisoner
under his charge either;
b. By the imposition of punishments not
authorized by the rules and regulations
Criminal Law Review
Prosecutor Victoria C. Garcia
c. By inflicting such punishments allowed by
rules and regulations in such a manner which
is excessive in nature
d. By maltreating such prisoner to extort a
confession or to obtain some information from
the prisoner (not mentioned by prosec pero sali
ko na rin here from prosec notes 2017)
It is necessary that the said victim must be a prisoner. The
law used the phrase “physical injuries or damage
caused.” Therefore, the said injury caused to the prisoner
would not only mean physical abuses. It could also include
mental and psychological abuse done by the said public
officers against the said prisoner.
The penalty for maltreatment of prisoners is in addition to
the physical injuries or damage caused to the said victim.
Therefore, even if the said physical injuries were
manifestations of the maltreatment, you do not complex it.
You do not absorb. It is not absorbed. It is not complexed. It
produces a separate and distinct charge.
Ex. Maltreatment of prisoners, torture and physical
injuries.
Torture also, although the physical injuries inflicted by the
police officers against X were manifestations of acts of
torture. They also cannot be absorbed by torture. Reason is,
under Sec. 15 of RA 9745, the law provides that torture as
a crime shall not absorb and shall not be absorbed by any
crime or felony committed as a consequence or as a means
in the conduct or commission thereof.
Section 15. Torture as a Separate and Independent Crime. -
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 means in the conduct or commission thereof. In
which case, torture shall be treated as a separate and
independent criminal act whose penalties shall be
imposable without prejudice to any other criminal liability
provided for by domestic and international laws.
Torture as a crime shall always be treated as a separate and
distinct. Therefore, the physical injuries which were
inflicted by the police officers will constitute a separate and
distinct charge from the crime of torture.
Torture cannot be absorbed. Torture cannot absorb.
The imposable penalties will always be in addition to any
penalties arising from the domestic and international laws.
Q: X was walking. While X was walking, the two police
officers, stalking, alighted from their car. Then
thereafter, the 2 police officers, just for the sake of
making fun of it, said “you are under arrest”. X is very
shocked. The 2 police officers placed him inside the car.
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Then, just for the fun of it, mauled X. X was seriously
wounded – bleeding on the eyes, nose and mouth. After
that, he was dumped just in the ground when he was
already wounded. When someone saw him and he was
brough to the hospital, based on the doctor’s
examination, he will be incapacitated from labor. He
cannot work for a period of 2 weeks. What crime/s had
been committed by the police officers?
A: They are liable for:
I. LESS SERIOUS PHYSICAL INJURIES
II. TORTURE under RA 9745 (Anti-Torture Act)
Let us add facts.
Q: The police officers upon arresting X, just placed X
inside the car and then they bought X to the PNP station.
X was investigated. He was so shocked. He is being
investigated for the crime of theft that happened. After
the investigation, he wouldn’t admit anything. In fact,
he said, he lacks knowledge of the acts of theft being
imputed against him. He was placed behind bars.
Thereafter, he was brought to the investigation room.
And there, he was mauled (boxed and kicked) by the
police officers forcing him to admit. He sustained
injuries. And because of that, when he was already
bleeding, the police officers became afraid. He was
brought to the hospital. Based on the doctor’s
assessment, because of the severe damage sustained by
him, he could not work for a period of 6o days or 2
moths. What crime/s is/are committed by the said
police officers?
A: The police officers are liable for TORTURE, SERIOUS
PHYSICAL INJURIES and MALTREATMENT OF PRISONERS.
Q: Where lies the difference between the 1st problem
and the second problem?
A: In the first problem, there is no maltreatment of
prisoners. Whereas in the second problem, there is
maltreatment of prisoner.
Reason is, in the first problem, X is not yet a prisoner. He is
only a person under arrest. Whereas, in the second
problem, he is already a prisoner.
For one to be a prisoner, it is necessary that he must be
bought to the PNP station. He must be investigated. He must
be booked – his fingerprints had been taken. Mugshots
(front view, left view, side view) had been taken. Then, he is
placed behind bars. In that manner, he is already a prisoner,
an accountability of the state.
That’s why in the second problem, since X was investigated,
booked and placed behind bars, he is already deemed a
prisoner. And when he was mauled and inflicted with
physical injuries, there is an additional crime of
maltreatment of prisoners under article 235.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: In the problem that I gave, the police officers were
prosecuted for maltreatment of prisoners, physical
injuries, and the crime of violation of RA 9745. They
were convicted of RA 9745, so they are now behind
bars, there was this amnesty proclamation by the
president with the concurrence of Congress. X wanted
to avail of the same. He applied for the amnesty
proclamation. Can the said amnesty be granted?
A. NO. It is expressly prohibited under section 16 of RA
9745.
Section 16. Exclusion from the Coverage of Special Amnesty
Law. - In order not to depreciate the crime of torture,
persons who have committed any act of torture shall not
benefit from any special amnesty law or similar
measures that will have the effect of exempting them
from any criminal proceedings and sanctions.
Under Sec 16, any amnesty proclamations or any similar
acts which will exempt him from criminal santions or
penalties cannot be availed.
Section 17. Applicability of Refouler. - No person shall be
expelled, returned or extradited to another State where
there are substantial grounds to believe that such
person shall be in danger of being subjected to torture.
For the purposes of determining whether such grounds
exist, the Secretary of the Department of Foreign Affairs
(DFA) and the Secretary of the DOJ, in coordination with the
Chairperson of the CHR, shall take into account all relevant
considerations including, where applicable and not limited
to, the existence in the requesting State of a consistent
pattern of gross, flagrant or mass violations of human
rights.
ARTICLE 236 – ANTICIPATION OF DUTIES OF A PUBLIC
OFFICE
ELEMENTS:
1. That the offender is entitled to hold a public office
or employment either by election or appointment;
2. Shall assume the performance of the duties and
powers of a public official or employee; and
3. Without being sworn into office or having given the
bond required by law.
ARTICLE 237 – PROLONGING PERFORMANCE OF
DUTIES AND POWERS
ELEMENTS:
1. That the offender is holding a public office;
2. That the period allowed by law for him to exercise
such function and duties has already expired; and
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3. That the offender continues to exercise such
function and duties.
ARTICLE 242 – DISOBEYING REQUEST OF
DISQUALIFICATION
ARTICLE 238 – ABANDONMENT OF OFFICE OR
POSITION ELEMENTS:

ELEMENTS: 1. That the offender is a public officer;

2. That a proceeding is pending before such public
1. That the offender is holding a public office; officer;
2. That he formally resigns from his office; 3. That there has been a question regarding the
3. But before the acceptance of his resignation, he jurisdiction brought before the proper authority;
abandons his office. and
4. There is a question brought before the proper
authority regarding his jurisdiction, which is yet to
ARTICLE 239 – USURPATION OF LEGISLATIVE POWERS be decided.

ELEMENTS:
1. That the offender is an executive or judicial officer
2. That he:
a. Makes general rules and regulations beyond
the scope of his authority, or
b. Attempts to repeal a law, or
c. Suspend the execution of thereof
ARTICLE 240 – USURPATION OF EXECUTIVE
FUNCTIONS
ARTICLE 243 – ORDERS OR REQUESTS BY EXECUTIVE
OFFICERS TO ANY JUDICIAL AUTHORITY
ELEMENTS:
1. That the offender is an executive officer;
2. That the offender addresses any order or
suggestion to any judicial authority; and
3. That the order or suggestion relates to any case or
business within the exclusive jurisdiction of the
courts of justice.

ELEMENTS:
ARTICLE 244 – UNLAWFUL APPOINTMENTS
1. That the offender is a judge;
2. That the offender: ELEMENTS:
a. Assumes the power exclusively vested to
executive authorities of the Government, or 1. Offender is a public officer;
b. Obstructs executive authorities from the 2. He nominates or appoints a person to a public
lawful performance of their functions. office;
3. Such person lacks the legal qualification thereof;
NOTE: It can only be committed by a Judge. and
4. Offender knows that his nominee or employee
lacks the qualifications at the time he made the
ARTICLE 241 – USURPATION OF JUDICIAL FUNCTIONS nomination or appointment

ELEMENTS:
1. That the offender is holding office under the
Executive Branch of the Government;
2. That he:
a. Assumes the power exclusively vested in the
Judiciary, or
b. Obstructs the execution of any order or
decision given by a judge within his
jurisdiction
NOTE: It can only be committed by a public officer of the
Executive Branch of the Government.
ARTICLE 245 – ABUSES AGAINST CHASTITY
ELEMENTS:
1. That the offender is a public officer;
2. That he solicits or makes any indecent or immoral
advances to a woman;
3. That the offended party is a woman who is:
a. Interested in matters pending before the
public officer for his decision or where the
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public officer is required to submit a report or
to consult with a superior officer; or
b. Under the care custody of the offender, who is
a warden or other public officer directly
charged with the care and custody of
prisoners or persons under arrest; or
c. The wife, daughter, sister or any relative
falling within the same degree of affinity of the
person under the custody and charge
The essence of the crime is making immoral or illicit
advances to a woman interested in any matter.
The law does not require for a crime to arise that a woman
was indeed be damaged. It is not necessary that a woman
must have acceded to the same. Mere act of solicitation will
already give rise to the crime.
TITLE EIGHT - CRIMES AGAINST PERSONS
ARTICLE 246 – PARRICIDE
ELEMENTS:
1. That a person is killed;
2. That the deceased is killed by the accused;
3. That the deceased is the father, mother, or child,
whether legitimate or illegitimate, or a legitimate
other ascendant, or legitimate other descendant, or
legitimate spouse of the accused.
Parricide is a crime based on relationship. The relationship
must be legitimate except in case of parents and children.
The relationship must be in the direct line. The relationship
must be by blood except in legitimate spouses.
ARTICLE 248 – MURDER
ELEMENTS:
1. That a person was killed;
2. That the accused killed him;
3. That the killing was attended by any of the
qualifying circumstances mentioned in Article 248;
and
4. That the killing is not parricide or infanticide.
Murder is committed by any person who shall kill
another person which will not amount to parricide or
infanticide and the killing is attended by the following
qualifying circumstances:
1. Treachery, taking advantage of superior strength,
with the aid of armed men, or employing means to
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Prosecutor Victoria C. Garcia
weaken the defense, or of means or persons to
insure or afford mutiny;
2. In consideration of price, reward or promise;
3. By means of inundation, fire, poison, explosion,
shipwreck, stranding of a vessel, derailment or
assault upon a railroad, fall of an airship, by means
of motor vehicles, or with the use of any other
means involving great waste and ruin.
4. On occasion of any calamities enumerated in the
preceding paragraph, or of an earthquake, eruption
of a volcano, destructive cyclone, epidemic, or any
other public calamities.
5. With evident premeditation.
6. With cruelty, by deliberately and inhumanly
augmenting the suffering of the victim or outraging
or scoffing at his person or corpse (RA 7659)
If any of these qualifying circumstances attended the act of
killing, it is MURDER. You remove these qualifying
circumstances, and that act of killing by the offender is
HOMICIDE under Art. 249.
ARTICLE 249 – HOMICIDE
ELEMENTS:
1. That a person was killed;
2. That the accused killed him without any justifying
circumstance;
3. That the accused had the intention to kill, which is
presumed; and
4. That the killing was not attended by any of the
qualifying circumstances of murder, or by that of
parricide or infanticide.
Q: X, Y and Z are brothers. X Y and Z, although brothers,
are not close to each other. In fact, they have their own
lives and families, and they are envious of one another.
Before their parents died, before the coming of the
lawyer, X wanted to get rid of Y and Z. He invited both
brothers in lunch. In the said lunch, X served food with
poison. As a result, Y and Z was poisoned. Not only Y and
Z. Y and Z along with their respective wives and
children. All of them died upon eating the food served
by x. What crime/s is/are committed by X?
A: X shall be charged with crime of MULTIPLE MURDER. It
is NOT PARRICIDE because although they are legitimate
brothers, although their relationship is by blood, their
relationship is not in direct line. Siblings’ relationship is in
the collateral line.
It is MURDER and NOT HOMICIDE because the act of killing
was done by means of placing poison on the food served to
them.
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Since there is only a single act that produces multiple
murder – several acts of killing (Y, Z and their respective
wives and children), therefore, the crime committed is
MULTIPLE MURDER based on Art. 48 complexity of crimes.
Q: The husband the wife has been living together
happily until there was this man who kept on seeing the
husband in the middle of the night. He would text the
husband and the husband would get out. The wife will
peep through the window and the wife would see some
altercation between the both of them. After several
times of these things happening, the wife would ask.
When the husband wouldn’t tell the wife who that man
is, the wife conducted an investigation, and the wife
learned the man who had been seeing the husband was
an illegitimate son of her husband by an extramarital
relationship. The wife became mad at the husband and
the said illegitimate son has been the source of almost
everyday quarrel between X (husband) and Y (wife). X
decided to get rid of his illegitimate son. Anyway, he
hates this son who would always go to him only to ask
for money. When he will not give money, the son would
shout at him and would be mad at him. In order to bring
back the harmony in the relationship of X and Y, X hired
a man, W, to kill the said son. W followed the son for a
period of 2 weeks. Someday after the 2 weeks, W killed
the son. The said act of killing was done by W when the
son was getting out if his apartment. W deliberately
bunked him and repeatedly stabbed him. The son has
been defenseless. What crime/s had been committed by
X - he husband and the father of the son, and W – the
hired killer?
A: They are both liable for killing. The husband/father, X, is
liable as a PRINCIPAL BY INDUCEMENT, whereas W, the
hired killer is liable as a PRINCIPAL BY DIRECT
PARTICIPATION.
Insofar as the father is concerned, the crime committed is
PARRICIDE. In case of parent and child, even if the
relationship is illegitimate, the crime committed is still
parricide. Therefore, even if the said son is only an
illegitimate son of X, still it is PARRICIDE.
Insofar as W is concerned, the crime committed is MURDER
because it was a planned act of killing. He followed the said
son. On that Sunday, he bunked him and repeatedly stabbed
him totally making him without any defense. Therefore, the
crime committed is MURDER.
Q: X’s husband died. 2 years thereafter, X found another
man, fell in love with that man by the name of Z. X
married Z. X has a child by her former husband whose
name was Y. Y is already 20years old. When X and Z
were married and lived together, X’s condition is that
her son would stay with her. Z said, “of course, I will love
him like my own son.” They are living together in the
same house. One night, X was there waiting. Her son did
not yet arrive. She was already crying because this the
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Prosecutor Victoria C. Garcia
first time when her son failed to arrive early. Z told her,
“You go to sleep. I’ll be the one to wait for our son. I’ll be
here waiting. I will not go up to bed until he arrived.”
With that, X became pacified and so she went to bed.
Around 2 o’clock early morning, the door opened. The
son, Y, believes everyone was asleep as the lights were
off. However, as he was going upstairs, here comes the
lights opened and there was his father Z. Father, Z,
scolded him for not giving a call and for not telling them
that he would be late. And, because of this heated
altercation, since the son had taken some liquor, the
son pulled out an icepick and then thereafter
repeatedly stab Z his father. Z was brought to the
hospital, but Z was already pronounced dead on arrival.
What crime is committed by the son Y?
A: The son Y is liable of HOMICIDE and NOT PARRICIDE.
Their relationship is not by blood. Y was only the stepson of
Z because Y was the son of X. Likewise, it is not murder. The
act of killing was preceded by a quarrel between the
stepfather and the stepson. It is not a planned act. There was
no treachery and evident premeditation. Therefore, the
crime committed is HOMICIDE.
Q: The husband arrived home. It was unannounced.
Usually, the husband would arrive home 8 o’clock in the
evening coming from work but since he was not feeling
well at that time, afraid that he has the symptoms of
COVID, he immediately went home. He was in the house
by around 4 o’clock in the afternoon. It was very silent
in the house. He believed his wife was not inside. He has
a key to open the house. He went directly to the
bedroom in order to rest. However, upon opening the
bedroom, he was shocked. He was surprised. He saw his
own wife in actual sexual intercourse with his own
brother. They are both naked. His brother on top of his
wife in actual sexual intercourse. The said husband
cried so loud. He was very mad. He has a gun – a small
revolver. He used it and fired upon his wife and his
brother. Both died. Thereafter, the said husband
surrendered to the police authorities and surrendered
the gun that he used. After investigation, the police
officers filed 2 cases against him. The police officers
filed 2 counts of parricide against X before the Office of
the Public Prosecutor. If you were the investigating
public prosecutor, would you indict X the husband as
charged by the police officers in the complaint?
A: If you were the public prosecutor, you have to indict the
husband of two (2) crimes: Parricide for having killed his
wife and Homicide for having killed his brother.
It is HOMICIDE and NOT PARRICIDE because of the
collateral relationship. It is HOMICIDE and NOT MURDER
because the act of killing happened at the spur of the
moment the husband surprising the said act of sexual
intercourse.
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Therefore, the fiscal must file these two cases: PARRICIDE
FOR HAVING KILLED HIS WIFE and HOMICIDE FOR
HAVING KILLED HIS BROTHER.
Q: The cases were filed before the RTC. The PAO counsel
(the husband has no money) was designated by the
court as counsel de officio. What should be his line of
defense? What should be his arguments in order to win
the case for his client, the husband?
A: He should raise ARTICLE 247. That the DEATH
OCCURRED UNDER EXCEPTIONAL CIRCUMSTANCES -
THE HUSBAND SURPRISING THE WIFE IN THE ACTUAL
SEXUAL INTERCOURSE WITH THE SAID BROTHER. He can
also raise mitigating circumstance.
Q: If you were the judge, how should you rule in these
two cases?
A: The judge should convict the husband as charged:
PARRICIDE FOR HAVING KILLED HIS WIFE and HOMICIDE
FOR HAVING KILLED HIS BROTHER. However, the penalty
to be imposed would be the penalty provided for under
ARTICLE 247 which is ONLY DESTIERRO and NOT
RECLUSION PERPETUA AND NOT RECLUSION TEMPORAL
because ARTICLE 247 applies.
Article 247, according to the Supreme Court, is not a felony.
Article 247 is an absolutory cause. Therefore, it is a matter
of defense to be raised by the accused. And if the accused
would be able to prove the said act of killing, the said act of
inflicting serious physical injuries happened under
exceptional circumstance, he surprised the other spouse in
the act of sexual intercourse with another, then ART 247
WOULD EXEMPT HIM. The penalty would only be
DESTIERRO. The SC even said destierro cannot even be
considered as a penalty but as an act of protection made
by law in favor of the accused in order to safeguard him
or protect him from any retaliation coming from the
relatives of the person that he killed or inflicted with
serious physical injuries. SC even said that, in fact, if the
injuries inflicted by the accused is only less serious or
slight, totally, he is not liable. There is totally no penalty
to be imposed.
ARTICLE 247 – DEATH OR PHYSICAL INJURIES
INFLICTED UNDER EXCEPTIONAL CIRCUMSTANCES
ELEMENTS:
1. That a legally married person or a parent surprises
his spouse or his daughter, the latter under 18
years of age and living with him, in the act of
committing (actual act) sexual intercourse with
another person.
2. That the said legally married spouse he or she kills
any or both of them or inflicts upon any or both of
them any serious physical injury in the act or
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Prosecutor Victoria C. Garcia
immediately thereafter (It doesn’t mean
instantaneously.)
3. That he has not promoted or facilitated the
prostitution of his wife or daughter, or that he or
she has not consented to the infidelity of the other
spouse.
PEOPLE v. ABARCA: Even if an hour had already lapsed
between the surprising and the act of killing, SC said Article
247 still applies. Because at that time, he was still enveloped
with the pain and the jealousy that he felt upon chancing his
wife in an actual sexual intercourse with another man.
Q: The husband arrived home. Not feeling well, it is not
the usual time that he arrived. He opened the house. He
has a key. Because the house was very silent, he opened
the bedroom. He wanted to take a rest. Upon opening
the bedroom, he was shocked. He saw his own wife in
actual sexual intercourse with the nanny of their
children. He was very mad. He took his revolver. Then
he fired it at his wife and as well as to his nanny of his
children. Both of them died. What case/s should be filed
by the public prosecutor against the said husband?
A: The public prosecutor should file 2 cases: PARRICIDE for
having killed his own wife and HOMICIDE for having killed
the nanny of his children.
It is HOMICIDE because the act of killing happened at the
spur of the moment. The said husband did not reflect on the
ways, means and methods how to do the killing.
Q: If you were the defense counsel, what would be your
arguments?
A: You can raise Art. 247 – DEATH UNDER EXCEPTIONAL
CIRCUMSTANCES. You can also raise mitigating
circumstances – sudden impulse of passion and
obfuscation, voluntary surrender and any mitigating
circumstance you could think.
Q: If you were the judge, what would be your decision?
How would you rule?
A: If you were the judge, you have to convict the accused as
charged: PARRICIDE and HOMICIDE.
You should not apply Article 247 because Article 247 used
the phrase “sexual intercourse.” When you say sexual
intercourse, it means a penis penetrating a vagina. It
cannot happen between two vaginas. Therefore, in this
case, what happened between the wife and the nanny would
be only sexual act even if the bar examiner uses the word
sexual intercourse. In the problem, it used the word: the
“husband caught the wife in actual sexual intercourse with
the nanny.” You have to reason that it cannot be actual
sexual intercourse.
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PEOPLE v. BAY-OD: It is not an ART 247 case. It is
a rape case. However, the SC said when you say
penetration, the penis must penetrate the vagina.
Therefore, if it is two (2) women, it cannot be
sexual intercourse because no penis can penetrate
the vagina.
In this case, the judge should convict the husband of
PARRICIDE for having killed the wife and HOMICIDE for
having killed the nanny, but the judge can consider
mitigating circumstances. Based on the facts of the problem,
we have sudden impulse of passion and obfuscation. The
judge can also consider voluntary surrender.
TUMULTUOUS AFFRAY (ART. 251 and 252)
ARTICLE 251 – DEATH CAUSED IN A TUMULTOUS
AFFRAY
ELEMENTS:
1. That there be several persons
2. That they did not compose groups organized for
the common purpose of assaulting and attacking
each other reciprocally
3. That these several persons quarreled and
assaulted one another in a confused and
tumultuous manner
4. That someone was killed in the course of the affray
5. That it cannot be ascertained who actually killed
the deceased
6. That the person or persons who inflicted serious
physical injuries or who used violence can be
identified.
ARTICLE 252 – PHYSICAL INJURIES INFLICTED
INTUMULTUOUS AFFRAY
ELEMENTS:
1. That there is a tumultuous affray
2. That a participant or some participants thereof
suffer serious physical injuries or physical injuries
of a less serious nature only.
3. That the person responsible thereof cannot be
identified
4. That all those who appear to have used violence
upon the person of the offended party are known.
Articles 251 and 252 will only apply if the said act of
killing/infliction of serious physical injuries or less serious
physical injuries happened during the tumultuous affray
and the actual perpetrator of the said killing or the actual
perpetrator who inflicted the serious/ less serious physical
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Prosecutor Victoria C. Garcia
injuries cannot be ascertained. Therefore, the one liable will
be the person who inflicted any act of violence on the said
victim.
Even if there is a tumultuous affray, and a victim died in the
said tumultuous affray, if the actual killer is identified, if the
witness can point to him as the one who killed the victim,
the crime committed is homicide/murder. It is not death in
tumultuous affray because the actual
perpetrator/culprit/killer is identified.
ART. 251 - DEATH ART 252 – PHYSICAL
CAUSED IN A INJURIES INFLICTED
TUMULTOUS AFFRAY INTUMULTUOUS
AFFRAY
Insofar as the victim is In case of physical injuries
concerned, he can be any inflicted in tumultuous
person. He can be a affray, the law specifies
participant, a mere that he must be a
passerby or a stranger. He participant.
could be anybody and not
necessarily a participant.
Q: X was on his way home. He saw people. Very noisy. As
he was walking nearer, he saw that these people were
watching about 15-20 people fighting one another
reciprocally. It was a chaotic fight. One boxing/kicking
one another. No particular victim. No particular
assailant. One after another. The people there were just
watching. Before going home, he decided to watch too.
He was enjoying watching the fight. He went very near
the fight when suddenly X fell on the ground. His chest
was bleeding. There was an icepick on his chest. He
cried out loud to the people watching. And these people
immediately brought him to the nearest hospital.
However, after several hours, he died. Based on the
investigations of the police officers, no one of the
people around saw who stabbed X with the said icepick.
They were busy watching the fight. They didn’t even
notice that he fell until X cried aloud asking for help. No
one saw who hit him with the said icepick. However,
there was a boy near the fight who was facing X who
said that he saw one of the participants in the said
affray by the name of Y. According to the boy, that man,
Y boxed X on the neck. Who shall be charged for the
death of X?
A: Y. Since X died during the course of the said tumultuous
affray, and the actual perpetrator of the said act of killing
cannot be ascertained, likewise the person who inflicted
physical injuries cannot be ascertained, then the person
who used any form of violence who was identified to be Y
shall be the one liable to X’s death. But the crime charged
shall is not homicide. The crime charged is DEATH CAUSED
IN A TUMULTUOUS AFFRAY under ART. 251.
Q: X was there watching because he was so amazed with
this kind of chaotic fight when suddenly he fell on the
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ground. There was stab wound on his chest caused by
the icepick. The icepick was still there. He asked the
people to bring him into the hospital. While on the way
to the hospital, he said “Y stabbed me.” And the other
said, “Yes, I saw him stabbing you.” They brought him to
the hospital. He was pronounced dead. Who is liable to
the death of X?
A: Y is liable. The crime charged is HOMICIDE. Although the
death occurred during tumultuous affray, the actual
perpetrator is ascertained/identified/established.
Therefore, Article 251 would not lie.
Q: In the same problem, one of the said participants
therein suffered. His eyes started to bleed. It was very
painful. He got out of the fight. His right eye could not
see. He asked, “help! Help! Bring me to the hospital!” He
was brought by the people nearby to the nearest
hospital. Upon examination of his right eye, the doctor
said “what happened to you? Who boxed you? It was so
strong such that the pupil of the eye was so damaged.
Your right eye could no longer see.” X was so sad from
what happened to him. X could not recall who boxed
him on the right eye. It was a chaotic fight/confused
fight. He did not see where the boxes and kicks were
coming from. He could not, in particular, identify who
hit his right eye and caused the blindness of his right
eye. However, he is positive that one of the participants
therein by the name of Y kicked him strongly on the
chest that caused him to fall. Who shall be held liable
for the serious physical injuries sustained by the
participant X in the course of tumultuous affray?
A: Since the person who actually inflicted the serious
physical injuries on X is not established/ascertained, the
person who used any form of violence, Y, the person who
kicked him on the chest shall be liable. The crime charged is
not serious physical injuries but rather, under ART 252,
PHYSICAL INJURIES INFLICTED IN TUMULTUOUS AFFRAY.
ARTICLE 253 – GIVING ASSISTANCE TO SUICIDE
TWO ACTS PUNISHABLE:
I. By assisting another to commit suicide, whether
the suicide is consummated or not; or
II. By lending assistance to another to commit suicide
to the extent of doing the killing himself. (The
penalty is RECLUSION TEMPORAL.)
Q: X was very sick with COVID. He was lying in the house
because they are no longer accepted in the hospital. The
family only bought this oxygen tank that they connect
to him. However, he is always in pain, always catching
for his breath. He is already in pain and he wanted to go.
He held on his wife and told her, “I am already 70 years
old. I can go. Hirap na hirap na ako. Ayoko na rin
magpabigat sa pamilya. Tanggalin mo na yong oxygen.
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Prosecutor Victoria C. Garcia
Okay na ako. I had lived a good life. Tapusin mo na ang
hirap ko.” The wife pitied him. The wife cut off the said
oxygen giving life to the husband. And the husband, X,
died. What crime has been committed by the said wife?
The said wife killed the husband out of mercy/love to
end the pain. Is the crime committed PARRICIDE or
GIVING ASSISTANCE TO SUICIDE?
A: The crime committed is GIVING ASSISTANCE TO
SUICIDE. Because the initiative of killing his life came from
the husband. Therefore, he was the one who wanted to
commit suicide. And the wife assisted by doing the killing
herself by cutting off the oxygen. Therefore, the crime
committed is GIVING ASSISTANCE TO SUICIDE, but the
penalty is RECLUSION TEMPORAL because under Article
253, if the one giving assistance to suicide did the act of
killing himself, the penalty is RECLUSION TEMPORAL.
That is different from the other kind of mercy-
killing/euthanasia. The other kind of mercy-killing:
Q: Same problem. The husband was there suffering
COVID. Despite the said oxygen, he is still having a hard
time. The wife could no longer take the pain. The wife
decided to cut it off. What crime is committed by the
wife?
A: PARRICIDE. Because the intent to kill was there on the
wife. It did not come from the said husband who was
suffering from COVID.
The difference is that it is GIVING ASSISTANCE TO SUICIDE
and NOT ACTUALLY PARRICIDE because the said initiative
to die comes from the victim. In the second problem, it was
the wife who really wanted to end the suffering of the
husband upon seeing that the husband was already in that
condition.
That’s the difference between PARRICIDE and GIVING
ASSISTANCE TO SUICIDE both involving MERCY
KILLING/EUTHANASIA.
ARTICLE 254 – DISCHARGE OF FIREARMS/ ILLEGAL
DISCHARGE OF FIREARMS
ELEMENTS:
1. That the offender discharges a firearm against or at
another person; and
2. That the offender has no intention to kill that
person
Since he has no intention to kill the person, he knew that the
said person wouldn’t be hit. Let’s say he knew that it was a
home-made gun. That person is so far beyond the shooting
range. Although he pointed it, he discharges it, but he knew
it would never hit that man. He has no intent to kill that man
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in discharging the firearm. The crime committed is under
Article 254.
ARTICLE 255 – INFANTICIDE
Infanticide is the act of killing of a child less than three (3)
days old or less than seventy-two (72) hours whoever be
the offender.
The controlling actor is the age of the victim. For as long as
the said victim is less than three (3) days old or less than
seventy-two (72) hours, it is always infanticide even if the
person who killed him is his mother or a total stranger.
ARTICLE 256, 257, 258 AND 259 - ABORTION
ARTICLE 256 – INTENTIONAL ABORTION
This may be committed in any of the following manner:
1. When the offender employs violence upon the
offended party who is a pregnant woman in order
to expel the fetus from the womb of the said
woman.
2. When the offender administered abortive
drugs/beverage on the said pregnant woman in
order to expel the fetus from the womb of the said
woman without the consent of the latter.
3. When the offender administered abortive
drugs/beverage on the said pregnant woman with
the consent of the latter in order to expel the fetus
from the womb of the said woman.
The intent of the offender is against the fetus. He wanted to
kill the fetus inside the womb of the said pregnant woman.
Necessarily, he knows that the said woman is pregnant
because the intention is against the fetus. The fetus needs to
die in order to bring about intentional abortion.
ARTICLE 257 – UNINTENTIONAL ABORTION
This may be committed only in one manner. That is by
employing violence upon the person of a woman. Hence, the
fetus inside her womb died. In case of unintentional
abortion, there is on the part of the accused no intent
against the fetus. No intention to kill the fetus. His intention
is against the woman. He may/may not know that the
woman is pregnant but because of the violence/force he
employed on the said woman, the fetus died. The fetus was
expelled on the womb of the said woman.
The intention of the offender is against the woman. He may
or may not know that the said woman is pregnant. Because
Criminal Law Review
Prosecutor Victoria C. Garcia
of the violence he enforced, the baby inside the womb of the
woman died.
Q: There was this woman. She lives in a far-flung barrio
in a remote province. Far from town, X the woman came
out and the neighbor said, “uy ang laki ng tiyan mo.
Bakit araw-araw ang laki ng tiyan mo.” X said “di naman
ah.” “Ay buntis ka! Buntis ka!” X said, “di ako buntis.
Wala akong boyfriend.” Days passed, the stomach
became bigger. The neighbor said, ““you’re pregnant!”
Inside the house, the mother said “why is your stomach
very big? Are you pregnant? X told her mother NO. She
is not pregnant. She has no boyfriend. She has no man
in his life how could she be pregnant. So, the mother
said, “let us go to town. I’ll bring you the health center.
Then, she was brought to the health center. The doctor
said she is pregnant. She was crying. She could not
accept it. According to her, the baby came from the evil
spirit. On the 9th month, time of delivery of the said
baby. They did not inform the neighbors that indeed
she was pregnant. Only she and her mother know that
in reality she was pregnant. At the time of deliver, it was
the mother of X who help her deliver the said baby. The
baby was healthy. X told the mother, “we have to get rid
of the baby! The neighbors did not know the said
pregnancy. I told them that my stomach was just big. We
have to get rid of the baby.” Thereafter, they cut the
umbilical cord. On that very same night, the mother of
X, as well as X, although she has just given birth, they
went to the forest, dug the ground, and buried the baby
alive. What crime/s is/are committed? Both by X and
her mother?
A: X and her mother are liable for INFANTICIDE. The said
baby was killed less than 72 hrs. or less than 3 days from
the time she has been given birth. She is already a person.
The umbilical cord is already been cut. Therefore, both X
and her mother would be liable for infanticide.
Only one (1) information shall be filed. Both X and her
mother are conspirators for the crime of infanticide.
Since they did so in order to conceal dishonor, it would
mitigate their liability.
Insofar as the woman is concerned, it will be two (2)
degrees lower from the penalty prescribed by law.
Insofar as the mother is concerned, it will be a degree
lower from the penalty prescribed by law which is
RECLUSION PERPETUA TO DEATH.
2 degrees lower from reclusion perpetua (PRISION MAYOR)
insofar as X is concerned. Insofar as the mother is
concerned, one degree lower (RECLUSION TEMPORAL).
Because they both did the killing in order to conceal
dishonor.
Q: In the same problem, on the 9 th month, the delivery
was done by the said mother so that the neighbors
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would not know because they denied that X was
pregnant. The healthy baby boy was there. X told her
mother, “we have to get rid of this baby.” But the mother
said, we can bring up this boy and help us as he grows
older. X said “NO. Our neighbors did not know that I
became pregnant. Everyone will be talking about me. I
will be a disgrace. We have to kill this baby.” On the 2nd
day after giving birth, X and Y went to the forest and
buried the baby. What crime is committed?
A: The crime committed is still INFANTICIDE. It is still less
than 3 days or less than 72 hours.
Q: What if before they could have decided to kill the
baby, it was already on the 3 rd day? It was already
72hrs? They went to the forest and buried the baby.
What crime is committed by X and Y?
A: X and Y will be liable of the crime of PARRICIDE.
Concealment of dishonor would no longer be a mitigating
circumstance because in case of Parricide, concealment of
dishonor is not a mitigating circumstance.
PARRICIDE INFANTICIDE
Relationship is controlling. The age of the victim is
controlling.
The offender must be the The offender can be any
father, mother, child, person, whether a relative
whether legitimate or or a total stranger.
illegitimate, legitimate
other ascendant,
legitimate other
descendant, legitimate
spouse.
Concealment of dishonor Concealment of dishonor
is not a mitigating is a mitigating
circumstance. circumstance
If the relative conspired If the relative conspired
with a stranger, with a stranger,
conspiracy would not lie. conspiracy would lie
because it is the age that is
controlling.
Q: SAME PROBLEM. X, after learning that indeed she
was pregnant, she kept on denying it. She kept on telling
her mother came this rom the evil spirit. She has been
tensed every day. She was suffering from depression.
Before the 7th month, because of her too much
depression/tension, the baby was about to go out. She
could feel that. The mother help in the delivery of the
said baby. The said baby, upon being delivered, even
before the umbilical cord was cut, X already stabbed the
baby to death. X already killed the baby to conceal her
dishonor. What crime is committed by X the mother?
A: X, the mother, is liable for INTENTIONAL ABORTION. The
said fetus, after delivery, less than 7 moths was killed within
24 hrs. and the umbilical cord is not yet cut. Therefore, it
cannot survive on its own. It is not yet a person. The baby
Criminal Law Review
Prosecutor Victoria C. Garcia
still draws life from the mother. When the mother killed the
baby, the crime committed is intentional abortion.
Q: Because of depression, too much tension, and the
baby was about to go out. The baby was less than 7
months. The mother helped in the delivery of the said
baby. The umbilical cord was cut. Although less than 7
moths, the baby was surviving. The baby was alive.
However, the next day, X looking at the baby, it was
beyond 24 hrs, X stabbed the baby. What crime is
committed by X?
A: X is liable of INFANTICIDE. It is no longer intentional
abortion because the said baby although born or has an
intrauterine life of less than 7 months, the baby was killed
after 24 hours and the umbilical cord was already cut. She
no longer draws life from her mother. She is already a
person or a human. Therefore, killing the said child less than
72 hours would bring about infanticide.
INFANTICIDE ABORTION
Insofar as the victim is The victim is still a fetus.
concerned, the victim is
already a person.
The umbilical cord is The umbilical cord is not
already cut, and the baby yet cut. The baby still
is alive. draws life from the
mother.
The baby is killed after 24 The said victim has an
hours. intrauterine life of less
than 7 moths, and the said
baby is killed less than 24
hours or within 24 hours.
Q: X arrived at home. He saw his wife kissing a man at
the gate. X was very mad. He hurriedly ran towards his
wife. The man upon seeing the husband immediately
left. The husband confronted the wife. The husband
told the wife, “who is that man?” The wife said, “he is
just a friend.” There was a heated argument between
the husband and the wife. The wife went inside the
house. The wife went to the kitchen. The husband
followed. The husband said, “that is your other man?
Answer me. You’re having an affair, right?” And so,
there was a heated argument. The husband got very
mad and took a kitchen knife. The wife was 9 months
pregnant. He stabbed his own 9months pregnant wife
on the stomach twice. He was about to stab her for a
third time when suddenly a neighbor arrived and
prevented him from stabbing the wife. The wife was
brought to the hospital. Both the wife and the 9 th month
fetus died. What crime/s is/are committed by the
husband?
A: The husband killed the wife. Therefore, the husband is
liable for PARRICIDE. The husband is liable also for
INTENTIONAL ABORTION. The husband knows that the
wife is 9months pregnant. Asawa niya. Kita pa niya Malaki
ang tiyan. Therefore, he knows. Stabbing her twice, and
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about to stab her the third time, the wife and the baby inside
the womb died. Therefore, it is intentional abortion.
Since this was brought about by the said act of killing, you
complex it. Therefore, the crime committed will be a
complex crime of PARRICIDE WITH INTENTIONAL
ABORTION.
Q: SAME PROBLEM. The husband saw the wife. He saw
the kissing and confronted the wife. The wife went to
the kitchen. There was a heated argument. The
husband is asking the wife to admit that she was having
an affair. They were having this heated argument. In the
course of the said argument, the husband slapped the
face of the wife three times. When the said wife was
been slapped, she was about to walk. Because of her
husband act of slap, she fell on the floor with her head
hitting the floor. She suffered cerebral hemorrhage. She
was brought to the hospital. Since she was pregnant,
delivery was immediately done by the doctor to save
the life of the 9month old fetus. Insofar as the wife is
concerned, because of the cerebral hemorrhage, she
died. What crime/s is/are committed by the husband?
A: The husband committed of the crime as against the wife
– PARRICIDE. The said act of slapping was a felonious act.
Therefore, he became liable to the resulting felony.
Although it is not the crime/resulting act he intended to
commit, however, when he slapped the wife strongly three
times, the wife slipped/fell on the floor, head hitting the
cemented thing, and suffered cerebral hemorrhage, and
that caused her death, therefore, it would be PARRICIDE
UNDER THE PROXIMATE CAUSE DOCTRINE.
Q: The 9month old baby did not die. He was delivered
safely. Is he liable of anything against the said baby?
A: NONE. Here, it is obvious. There was in fact an intent to
kill. Intent to kill is now presumed by law because the wife
died. But because of his mere act of slapping, you cannot say
that he has the intent to kill the wife. Therefore, since the
baby did not lie, there is no crime committed insofar as the
fetus is concerned.
Q: SAME PROBLEM. The said baby died. Because of the
said too much loss of blood, before they reached the
hospital, both the woman and her baby died. What
crime/s is/are committed by the husband?
A: PARRICIDE insofar as the wife is concerned and
UNINTENTIONAL ABORTION insofar as the fetus is
concerned. This time, there was no intent against the fetus.
The intention was only to employ force against the wife but
because of the employment of the said force to the woman,
the fetus inside her womb died. Therefore, we have another
complex crime: PARRICIDE WITH UNINTENTIONAL
ABORTION.
In the first problem, PARRICIDE WITH INTENTIONAL
ABORTION. In the second problem, PARRICIDE WITH
UNINTENTIONAL ABORTION.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q: How would you know sa BAR if ito ay INTENTIONAL
or UNINTENTIONAL ABORTION?
A: If based on the facts of the problem, it is so obvious that
the woman is pregnant (9 MONTHS, 8 MONTHS, 7
MONTHS), it means the Bar examiner wants you to know
that pregnancy is already obvious. The stomach is already
big. And the act of stabbing is directed on the stomach, on
the belly, abdomen, chest near the place where the baby
was, obviously, there was also intent against the baby and
not only intent against the woman. If the fetus died, it is
INTENTIONAL ABORTION.
UNINTENTIONAL ABORTION like in the second problem,
the intent was only against the woman. And, by reason
thereof, the fetus also died. It will unintentional abortion.
THERE IS NO SUCH CRIME AS FRUSTRATED
UNINTENTIONAL ABORTION so if after inflicting physical
violence upon the pregnant woman, even if the pregnant
woman died but the fetus was unbirth, there is no crime
against the fetus. BUT THERE IS SUCH A CRIME OF
FRUSTRATED INTENTIONAL ABORTION because in
intentional abortion, the fetus must die because the intent
of the offender is against the fetus. If the fetus survived,
then we have FRUSTRATED/ATTEMPTED
INTENTIONAL ABORTION.
ARTICLE 258 – ABORTION PRACTICED BY THE
WOMAN HERSELF OR BY HER PARENTS
ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN
OR MIDWIFE AND DISPENSING OFABORTIVES
ARTICLE 259 - ABORTION PRACTICED BY A PHYSICIAN
OR MIDWIFE AND DISPENSING OF ABORTIVES
Although there are four (4) articles, we have only two (2)
kinds of abortion:
1. INTENTIONAL ABORTION
2. UNINTENTIONAL ABORTION
UNDER ARTICLE 259, if a pharmacist issued an abortive
drug without any prescription coming from the physician,
he shall be held liable for DISPENSING OF ABORTIVES
under ART. 259.
ARTICLE 260 - DUEL
ARTICLE 261 – CHALLENGING TO A DUEL
A duel is a combat fought between two or more persons
based on a previous agreement to engage in a fight.
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Before a fight/combat may be considered to be a duel,
the following elements must be present:
1. There must be a previous agreement to engage in a
fight.
2. There must be two or more seconds for each
combatant.
3. The weapons to be used and other terms of the
fight must be agreed upon by the said seconds.
In case of a duel under Art. 260, the mere act of engaging in
a duel, even without killing/inflicting physical injuries on
the adversary, just by entering into a duel, makes the
offender criminally liable. One of the acts punished under
Article 260.
Criminal Law Review
Prosecutor Victoria C. Garcia
Two ways of committing MUTILATION:
1. By intentionally depriving/mutilating (totally or
partially) another of a part of his body which is an
essential part for reproduction.
- This is known as CASTRATION.
Castration – as a form of mutilation that is cutting off the
organ of a person which is responsible for reproduction
carries a higher penalty than that of Homicide in killing a
person.
Castration is penalized with RECLUSION TEMPORAL TO
RECLUSION PERPETUA. Whereas HOMICIDE is
penalized only with RECLUSION TEMPORAL.

Under Article 261, accepting a challenge. 2. By intentionally committing other mutilation that
is, by depriving him (totally or partially) of any
It differs from a TUMULTUOUS AFFRAY. other part of his body with intent to deprive him
of such part of his body.
DUEL TUMULTUOUS AFFRAY
The mere act of taking part The mere act of Q: The husband and the wife has been living together
in a duel, the mere act of participating under for 25 years. They already celebrated their silver
engaging in a duel will Articles 251 and 252 in this anniversary. But still the husband has many
make the offender chaotic/confused affray mistresses/girlfriends. Every day of her life, the wife is
criminally liable under Art. will not make a person jealous. She wanted to end this feeling of jealousy. She
260. criminally liable, unless called her husband, “husband, come home early. I
there be death, serious or prepare a special dinner for you. We are going to
less serious physical celebrate.” The husband said, “why? And she said, “I just
injuries. want to celebrate with you a good dinner.” The husband
arrived early that evening. They were having dinner.
Under Article 260 - Duel, there are three acts punished There was wine, and the wife kept on pouring the wine
in a duel: on the glass of the husband. The husband kept on
drinking. The wife, however, was not drinking. When
1. By killing one’s adversary in a duel. the husband was very drunk, he fell on the table asleep.
2. By inflicting physical injuries upon one’s Thereafter, the wife took the bladed knife. Then, she cut
adversary. the penis of her husband. What crime is committed by
3. By making a combat by merely entering into a duel. the said wife?
A: The wife is liable for mutilation.
Under Article 261- Challenging to a duel, there are also
three acts punished: Q: X and Y were fighting by means of fists. In the course
of their fight, X wanting to kill Y and since he was losing
1. By challenging another to a duel. the fight, X draws immediately a long sharp bolo. He has
2. By inciting another to give or accept a challenge to been using this in farming and he has just sharpened it
a duel. this afternoon. Y parried the blow with the use of his
3. By scoffing at or decrying another publicly for arm. And because of the impact, the bolo landed on the
having refused to accept a challenge to fight a duel. arm. Because of the sharpness of the bolo, the arm was
cut from the said body of Y. What crime is committed by
X? Is X liable for mutilation?
ARTICLE 262 – MUTILATION A: X is not liable for mutilation. X has no deliberate intent to
cut off the arm of Y.
Mutilation is a crime which can only be committed by
means of deliberate intent. It is a crime which cannot be Q: What is the crime committed by X?
committed by mere negligence or imprudence. There must A: X is liable of ATTEMPTED HOMICIDE. Because when he
always be deliberate intent to mutilate, to cut off or to raised the bolo to hack Y, his intention was to kill Y. But Y
severe a part of the body of a person. parried the blow. Hence, only the hand was cut. Therefore,
it is not a fatal wound.

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DO NOT SAY IT IS SERIOUS PHYSICAL INJURIES. IT IS NOT. MAY 19, 2021
Because when X raised the bolo to hack Y, his intention was SMMB, NACMR, AC, MJI AND RAA
to kill Y. It will not only amount to serious physical injuries
because of the presence of intent to kill. Therefore, it would THREE KINDS OF PHYSICAL INJURIES
be ATTEMPTED HOMICIDE. 1. Serious Physical Injuries
2. Less Serious Physical Injuries
3. Slight Physical Injuries

ARTICLE 263- SERIOUS PHYSICAL INJURIES

Under Article 263, the following acts are punished as

serious physical injuries:

1. When the injured person becomes insane, imbecile,

impotent, or blind as a consequence of the physical
injuries inflicted; or
2. When the injured person:
a. Loses the use of speech or the power to
hear or smell or he loses a hand, a foot, an
arm or a leg; or
b. Lose the use of any part of his body; or
c. Becomes either incapacitated for the work
in which he is habitually engaged.
3. When the injured person:
a. Becomes deformed; or
b. Loses any other part of his body or the use
of the part of his body; or
c. Becomes ill or incapacitated for the work
in which he is habitually engaged for a
period of more than 90 days.
4. When the injured person becomes ill or
incapacitated for the work in which is a habitually
engaged for a period of more than 30 days.

 These are the acts punished as Serious Physical Injuries.

The moment by reason of the physical injuries inflicted
on the victim, he becomes ill or could not work for a
period of more than 30 days, it is immediately serious
physical injuries.

 The distinction as to more than 90 days or more than 30

days is only for purposes of penalty. But the moment
that it is more than 30 days, it is already Serious Physical
Injuries.

 If by reason of the physical injuries inflicted by the

accused on the victim, the said victim becomes
deformed, there is physical disfigurement of the said
victim's physical appearance, which is permanent. It is
located in a conspicuous and visible part of his body, it
cannot be cured or healed through the natural healing
process. Therefore, it causes deformity on the part of the
said victim, do not consider anymore the healing period.
What is considered is the fact that the injury has caused
deformity on the part of the said victim. Therefore, even
if the said medical certificate states that the said wound
would heal within a period of 2 weeks or 30 days which
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amount only to Less Serious Physical Injuries, but since
the scar will produce deformity as it was located on the
face of the victim, do not consider the healing period.
 What you consider is the fact that the said deformity is
for life, it will cause the physical ugliness of the said
victim. Hence, the crime committed is serious physical
injuries and not less serious physical injuries.
The following circumstances will qualify Serious
Physical Injuries:
1. When the infliction of serious physical injuries is
attended by any of the qualifying circumstances for
murder under Article 248; and
2. When the victim of the serious physical injuries is
any of the persons enumerated for the crime of
Parricide.
 When the victim is the father, mother, child whether
legitimate or illegitimate, legitimate ascendants and
legitimate other descendant or legitimate spouse.
ARTICLE 264 –ADMINISTERING INJURIOUS
SUBSTANCE OR BEVERAGES
ELEMENTS:
1. The offender inflicted serious physical injuries
upon another;
2. It was done by knowingly administering to him any
injurious substances or beverages or by taking
advantage of his weakness of mind or cruelty;
3. He had no intent to kill
ARTICLE 265- LESS SERIOUS PHYSICAL INJURIES
There is Less Serious Physical Injuries:
1. When by reason of the injuries inflicted on the
victim, he/she would be needing medical
intervention for a period of 10 to 30 days; or
2. When the injured victim would be incapacitated
from labor for a period of 10 to 30 days.
The following circumstances will qualify Less Serious
Physical Injuries:
1. When there is a manifest intent to insult or offend
the victim of the injury;
2. When there are acts adding ignominy to the
commission of the crime;
3. When the offended party is the offender’s parents,
ascendants, guardians, curators or teachers;
Criminal Law Review
Prosecutor Victoria C. Garcia
4. When offended party is a person of rank or a
person in authority, provided it will not amount to
direct assault.
ARTICLE 266- SLIGHT PHYSICAL INJURIES AND
MALTREATMENT
There are three kinds of slight physical injury:
1. Physical Injury that would be needing medical
intervention or would incapacitate the victim from
labor for a period of 1 to 9 days;
2. Physical Injury that will not be needing medical
intervention or would not incapacitate the victim
from labor at all;
3. Ill-treatment of another by deed.
On the third kind - Ill treatment of another by deed – it
refers to any act that produces pain on the victim however
there is no wound, there is no injury inflicted by the accused
on the said victim. Although the victim suffered pain, there
is a no wound, there is no injury.
 Physical Injuries is a formal crime. It has no attempted
and frustrated stages because physical injuries are
punished based on the result, based on consequence, is
it serious? Is it less serious? Is it slight?
Q: A,B,C,D and E wanted to teach X a lesson, they wanted
to injure X, they wanted to inflict damage on him so that
he would no longer be bullying people in their
neighborhood. They planned on how they would be
able to do it. One night, A, B, C, D and E waited for the
arrival of X. They were in hiding amongst the tall
grasses. The moment X appeared, A,B,C,D and E all
armed with a piece of wood repeatedly ganged up on X.
When they saw that X was down on the ground,
wounded, bleeding, “Enough”, as they have no intention
to kill him. All they want is to injure him, to immobilize
him so that he will no longer be bullying in their
neighborhood. After seeing that he is already been
injured and that many parts of his body were already
bleeding, ABCD and E left. When X was brought to the
hospital, the medical certificate revealed that he would
be incapacitated to perform the work in which he is
habitually engaged for a period of 35 days. What crime
or crimes are committed by ABCD and E?
A: They are liable for Qualified Serious Physical Injuries.
It is Serious Physical Injuries because the victim would be
needing medical help for a period of more than 30 days. It
is Qualified because the said act of inflicting serious physical
injuries on X was attended by treachery. ABCD and E
planned it, they reflected on the ways, means and methods
that they will do in order to injure X and since it was
attended by treachery- one of the qualifying circumstances
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for murder, therefore, the crime committed is Qualified
Serious Physical Injuries.
Q: The son arrived home very late. The father mad at
the son, they had an altercation since the son had taken
liquor. There was a fight between the father and the
son, and the son repeatedly boxed and kicked his
father. The son was mauling his father when suddenly
the mother arrived and prevented her son from further
injuring the said father. The father was brought to the
hospital and based on the medical certification the
wounds would heal within a period of two weeks. The
father would be incapacitated for labor for a period of
two weeks. What crime/crimes are committed by the
son?
A: The son is liable for Less Serious Physical Injuries but it
is qualified. He is liable for Qualified Less Serious Physical
Injuries because the victim of the son was his parent. One
of the qualifying circumstances for Less Serious Physical
Injuries is if the offended party is the offender’s parents,
ascendants, guardian, curators or teachers. Here, the victim
of the offender is his own father, his own parent. Therefore,
it is Qualified Less Serious Physical Injuries.
ARTICLE 266-A - RAPE
In the case of People vs. Jumawan, the Supreme Court said
that there are three kinds of rape:
1. Rape by carnal knowledge;
2. Rape by Sexual Assault;
3. Marital Rape
I. RAPE BY CARNAL KNOWLEDGE
ELEMENTS:
1. The offender is a man and the offended party is a
woman;
2. The offender had carnal knowledge of the woman
against her will;
3. Such act is accomplished under any of the following
circumstance:
a. By using force, threat or intimidation;
b. When the offended party is deprived of
reason or otherwise, unconscious;
c. By means of fraudulent machination or
grave abuse of authority;
d. When the offended party is under 12 years
of age or is demented, even if none of the
circumstances previously mentioned is
present.
 The offender be must be a man.
 The victim be must be a woman.
Criminal Law Review
Prosecutor Victoria C. Garcia
 The act of carnal knowledge must be against the will of
the said victim, attended by the circumstances
mentioned.
II. RAPE BY SEXUAL ASSAULT
ELEMENTS:
1. The offender is any person and the offended party
is also any person;
2. The offender committed any of the following acts of
sexual assault upon the victim:
a. By inserting his penis into another
person’s mouth or anal orifice; or
b. By inserting any instrument or object into
another person’s genital or anal orifice.
3. The act of sexual assault is attended by any of the
following circumstances:
a. By using force, threat or intimidation;
b. When the offended party is deprived of
reason or otherwise unconscious; or
c. By means of fraudulent machination or
grave abuse of authority;
d. When the woman is under 12 years of age
or demented, even if none of the
circumstances previously mentioned is
present.
 In case of rape by sexual assault, the offender may be any
person. The victim may be any person. It could be man
to a woman or man to man. It could be a woman to a man
or a woman to another woman because it is any person
to another person.
 Note that the acts of sexual assault is by inserting his
penis into another person’s mouth or anal orifice; or by
inserting any instrument or object into another person’s
genital or anal orifice.
III. MARITAL RAPE
In the case of People vs. Jumawan, rape exists even in case
of marital relationship because rape is not about sex. Rape
a is violation of the human dignity of a woman. Therefore,
when the husband penetrates the wife by means of violence,
threats or intimidation, by means of force, rape exists
because it must be consensual.
Q: The father arrived home from a drinking spree. The
father went directly to the bedroom of his daughter. He
undressed his daughter and penetrated his own
daughter. The daughter did not put up any struggle but
the daughter was crying all along. She knew she could
not do anything, she just kept on crying. Thereafter, the
daughter informed her relatives, particularly the sister
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of her mother. Together, they went to DSWD and a case
of rape was filed against the father.
The defense of the father was that the said act of carnal
knowledge was consensual. According to the father, his
daughter allowed it, his daughter didn't put up any
struggle and he did not employ force on his own
daughter. Therefore, according to the father it was
consensual.
A: The argument of the father is wrong. What is present here
is the so-called Incestuous Rape. In case of Incestuous
Rape, a father having carnal knowledge of his own daughter,
do not look for force, threat or intimidation because in case
of incestuous rape, the overpowering and overbearing
moral influence and ascendancy of the father over the
daughter takes the place of force, threat and intimidation.
Therefore, there is no need to prove force, threat or
intimidation.
 Just by the mere fact that he is the father and the victim
is the daughter, there is rape because of the
overpowering and overbearing moral ascendancy and
moral influence that a father has over his owned
daughter.
Q: X is a mental retardate. Based on the clinical
diagnosis of the doctor, X is already 25 years old but she
only has the mental capacity of a 10 year old child. X
was raped by Y. In the information, it was alleged that
“X being a woman, 25 years old but has only the mental
age of 10 years old was raped by the above-stated
accused. Therefore, the said act of rape was deemed to
be against her will and by means of force, threat or
intimidation.” If the victim is already of age but has the
mental capacity of a child under 12 years of age, what
crime is committed? Is it simple rape or is it statutory
rape?
A: The Supreme Court's decision varies.
First, according to the Supreme Court in the case of People
vs. Baay, the determining factor is the chronological age of
the victim. Therefore, in this case since the victim was 25,
the crime committed is simple rape.
However, in the case of People vs. Deniega, the Supreme
Court said that the basis is not the chronological age of the
victim but the basis is the mental age of the victim.
Therefore, in the case of People vs. Deniega, the Supreme
Court said the crime committed is statutory rape under
article 266-A(d).
In the case of People vs. Castillo and People vs. Avina, the
Supreme Court said that the determining factor is the
mental age of the victim. The Supreme Court in People vs.
Avina (2021) stated that it is the mental age that
determines what is the crime committed if the victim is
suffering from mental retardation and is under 12 years of
age because it is the mental age that gives the victim the
Criminal Law Review
Prosecutor Victoria C. Garcia
capacity to give her consent or not. Therefore, at present the
basis would be the mental age.
In the case, the crime committed would be statutory rape.
Q: But what if in the same problem it was stated in the
Information that “the undersigned public prosecutor
hereby accuses the above named accused for having
carnal knowledge of X, 25 years old and is suffering
from mental retardation, whose mental retardation is
known to the accused at a time of the commission of the
crime. Hence, the said act of carnal knowledge was
against the will of the accused”. During trial on the
merits, it was also proven by the prosecution that this
accused knew all along at the time of the carnal
knowledge that his victim was suffering from mental
retardation. What crime is committed by the accused?
A: The accused is liable for qualified rape. Under Article
266- B, if the offender knows of the mental retardation,
mental disability, physical disability of the victim at the time
of the commission of the crime, the penalty is death.
Therefore, it is qualified.
What will qualify the rape if the victim is a mental retardate,
if the victim is suffering from mental disability?
 It is the fact that the said offender knows of the mental
disability of the victim at the time of the commission of
the crime and such back up knowledge must be alleged
in the information and proven during trial.
 Both must be alleged in the Information and it must be
proven during trial. Absent that, it would be statutory
rape.
Q: X and Y are boyfriend and girlfriend. X was only 11
years old and Y was 22 years old. Since they love each
other, they cohabited with each other. They
cohabitated for two weeks until the mother of X
discovered where they were and the mother of X
forcibly took her daughter from the said place. Based
on the statement given by X, during those two weeks of
cohabitation, they would always have carnal
knowledge every night, for two weeks. What crime if
any has been committed by the boyfriend Y?
A: The boyfriend, Y, is liable for 14 counts of statutory
rape. Each act of carnal knowledge, each act of sexual
intercourse is equals to one count of rape. Since in this case
they cohabited for 14 days, for two weeks and according to
X, the 11 year old girl, they would have sexual intercourse
every night for 14 days. Therefore, the said boyfriend would
be liable for 14 counts of statutory rape under article 266-
B.
Circumstances which would qualify the penalty for rape
from reclusion perpetua to death:
1. When the rape is committed with the use of a
deadly weapon;
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2. If the said rape is committed by two or more
persons;
3. When by reason or on the occasion of the rape, the
victim becomes insane;
4. When rape is attempted and homicide is
committed by reason or on occasion thereof.
In all these instances the penalty is reclusion perpetua to
death.
In the crime of Rape, there are two instances where in a
special complex crime arises:
1. Special Complex Crime of Attempted Rape with
Homicide.
 When rape is attempted and homicide is committed by
reason or on occasion thereof.
2. Special Complex Crime of Rape with Homicide
When by reason or an occasion of the rape, the
crime of homicide is committed. This is punished
by death penalty.
Q: X and Y were on their way to town when suddenly
they were waylaid by a man named Z. Z suddenly
appeared in front of X and Y. Z boxed both girls and then
thereafter personally brought them behind a tree, in
the grass, in the area where in there were tall grasses.
Z undressed X forcibly after slapping her several times,
pinned her down and because of this, Y kept on crying
and shouting. Z got mad at Y for repeatedly shouting
and crying and so Z repeatedly hit Y with a lead pipe
until Y died. After Y died, Z went back to X and placed
himself on top of X and had carnal knowledge of X.
Thereafter, he told too hit X repeatedly with the lead
pipe. Thinking that X was already dead, Z left. What
crime/crimes are committed by Z?
A: What was Z’s original criminal intent? To rape. Since Z’s
original criminal intent was to rape, the crime is rape. By
reason or on the occasion of the said rape, homicide is
committed. Z has repeatedly hit Y with a lead pipe until Y
died. Therefore, on the occasion of the said rape, homicide
was committed. Therefore, the crime committed is Special
Complex Crime of Rape with Homicide.
In the case of People vs. Laoag and in the case of People vs.
Villaflores, the Supreme Court said that the law used the
phrase “by reason or on the occasion of rape, homicide is
committed”.
“By reason of rape, homicide is committed”
 it means that the original criminal intent of the accused
is to rape the victim and in the course of the said rape,
he has to kill the very victim of rape.
"On occasion of rape, homicide is committed”
Criminal Law Review
Prosecutor Victoria C. Garcia
 it means that the original criminal intent of the offender
is to rape the victim and on the occasion of the said rape,
he has to kill someone. That someone may be the rape
victim herself or another person. For as long as said act
of killing occurred on the occasion of the said act of rape.
The law does not require it to be the victim of rape, it
could be any person.
Q: X work overtime in her Makati office. After working
overtime in her Makati office until past 12:00 o'clock,
she decided to leave. She has finished the report that
she will be submitting tomorrow so she walked down
the building. As she was walking towards the bus
station, she passed by this vacant lot, wherein a
building was being constructed and there were three
persons A, B and C who were drinking. They were
construction workers, they were drinking when X
passed by, A, B and C took notice of X and all of them
followed X and then thereafter, encircled X. A, B and C
removed their shirts and they were tossing their shirts
in the air when suddenly they jumped on X and forcibly
undressed X. X was pinned down on the ground. When
B and C stood up and it was only A on top of X, X
immediately run away. However, B and C followed X
and they repeatedly stabbed X at the back. X died. What
crime/crimes are committed by a A, B and C?
A: The Supreme Court held him liable as conspirators for
the crime of attempted rape with homicide, a special
complex crime under Article 266-B as amended by RA 8353.
The Supreme Court said that the original criminal intent of
the offender was to rape the victim. It was added by the fact
that they ganged up on her and then thereafter forcibly
removed her clothes and A was on top of her when suddenly
she saw an opportunity and she ran away. However, by
reason of the said attempted rape, B and C repeatedly
stabbed her thereby causing her death. Hence, the crime
committed is the special complex crime of attempted rape
with homicide. It is a special complex under article 266-B.
Q: What if there were 3 girls. The 3 girls were at the
park, happily talking, chatting to each other when
suddenly here comes the barangay tanod. The
Barangay tanod went to them and asked them “Why are
you here? It is already almost 12:00 o'clock and you're
still here. Don't you know the curfew regulation? The
curfew ordinance? You are violating that. You're all
under arrest, we're going to bring you to the barangay
station.” Y and Z, however were able to run away. X was
the only one left and so X was brought by this barangay
tanod to the barangay where in there was the chariman.
After X was brought to the chairman and the chairman
was informed of what happened, the chairman merely
lectured X of her violation and told her not to do it again
and to stay at home during nighttime because there is a
curfew ordinance. After lecturing on X, the barangay
chairman told the barangay tanods to bring her home
to her parents safely.
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One of the barangay tanods told the others “I have a
tricycle. Let me bring her home.” and so the other tanod
said “Yes, you can just bring her home since you have a
tricycle.” and so, the barangay tanod told X to board the
tricycle. On their way to the house of X, the moment
they reached the bridge, the barangay tanod stopped
the tricycle and at gunpoint told X to alight. At gunpoint,
he told X to undress herself. The girl couldn't do
anything but follow as gun was pointed to her. After she
undressed herself, the said barangay tanod inserted his
penis into the said girls genitalia. After inserting the
penis, the said barangay tanod removed it and after
five minutes, the barangay tanod again inserted his
penis into the genital of the girl. Thereafter, he removed
it. After another 5 minutes, the barangay tanod inserted
his penis into the girl’s genital, satisfying himself he
remove his penis. Thereafter, at gunpoint, he told the
girl to dress herself again and and that she would be
brought home. He warned the girl not to tell it to
anybody. However, the girl informed her parents. As a
result three counts of rape were filed against the
barangay tanod. Convicted by the RTC for three counts
of rape. On appeal, his argument was if ever he should
be held liable, it should only be for one count of rape
and not for three counts of rape. Is the said accused
barangay tanod liable for only one count of rape or for
the for three counts of rape?
A: The Supreme Court said that the barangay tanod is liable
for three counts of rape. It shall be three counts of rape
because the said barangay tanod inserted his penis three
times, penetrated the girl three times at the interval of five
minutes each time. Therefore, the said barangay tanod has
three separate and distinct criminal intent to penetrate, to
have carnal knowledge with the said girl. Hence, the
Supreme Court said that the accused is liable for three
counts of rape.
In his appeal, the tanod used or cited the case of People vs.
Aron. The Supreme Court said that People vs. Aron is not
applicable. In People vs. Aron, despite the fact that there
were three penetrations the Supreme Court held the
accused liable only for one count of rape because according
to the Supreme Court based on the facts it is evident that the
accused has only one criminal intent to penetrate the said
woman. In the said case, the woman was brought inside the
house of the accused. She was made to lay on top of the bed
and then the accused penetrated the woman but he told the
said woman to get out and to lie on the floor, again the
accused penetrated the woman. Again, he remove his penis
and told her to lie near the headboard of the bed. Three
penetrations but Supreme Court said it is evident that there
is only one criminal intent it just so happened that the said
accused could not know the rightful position. In that case,
the Supreme Court said there is only one criminal intent,
there is only one count of Rape.
Q: X was charged, the father was charged with the crime
of qualified rape. It was stated therein that this father
Criminal Law Review
Prosecutor Victoria C. Garcia
had carnal knowledge of his daughter and that
according to the information, the relationship is that of
common-law relationship because the said father was
allegedly the common-law spouse of the mother of the
victim. The said girl was allegedly a minor. During the
hearing of the case, during the girl’s direct testimony,
she was asked of her age and she does not know. She
was asked of her birthday, she does not know. She was
asked of her age at the time of the commission of the
crime, she does not know. The judge asked the
prosecution to present the girl’s certificate of live birth.
When the girl was asked what was her relationship to
the accused, the girl said that the accused was her
father. When the girl was asked “Was there marriage
between your mother and the accused?” and the girl said
“Yes, there was a marriage.”
During the testimony of the accused father, he was
asked “What was your relationship with this girl?” “She
is my daughter.” “How did she become your daughter?
Was there a marriage between you and the mother of
this girl?” and the accused father said “Yes”. After trial
on the merits, the RTC convicted the accused of
qualified rape.
A: When the case reached the Supreme Court, the Supreme
Court downgraded the crime only to simple rape. The
Supreme Court said it can not be qualified rape. Under
Article 266-B, if the victim is under 18 years of age and the
offender is her parents, ascendants, relatives, common-law
spouse of the parent of the victim, the crime committed is
qualified rape because the penalty is death.
 The Supreme Court said in order to bring about qualified
rape, it is necessary that there must be the twin
qualifying circumstances:
First, minority; and
Second, relationship.
 The said victim must be under 18 years of age and
second the relationship between the offender and the
victim.
In this case, the Supreme Court said that the said minor age
of the victim was not proven beyond reasonable doubt. She
does not know her age, she could not testify even as to her
birthdate. The prosecution was required to present the
birth certificate, the said birth certificate of the girl was
attached to the prosecution's formal offer of exhibits but the
Supreme Court said that it will not suffice. It is necessary
that the said birth certificate must be presented in court and
someone must have testified that the said birth certificate
was that of the victim. Absent that, the minor age of the
victim was not proven beyond reasonable doubt.
Relationship was also not proven beyond reasonable doubt
because in both the testimony of the girl and the accused
they said there was a marriage. If there was a marriage,
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therefore it was a stepfather-stepdaughter relationship, not
a common-law relationship. Yet, what is alleged in the
Information was common-law relationship, alleging that
the accused was the common-law spouse of the mother of
the victim. The Supreme Court said the relationship alleged
in the Information is different from the relationship proven
in court. Therefore, relationship was not proven beyond
reasonable doubt. Hence, the Supreme Court downgraded
the crime to simple rape.
 This is only for purposes of designation of the crime,
there is no effect in the penalty. It is still reclusion
perpetua. It is only for designation of the crime for
purposes of the Bar.
 What is the crime committed? It is not qualified rape
because the twin qualifying circumstances of
relationship as well as minority was not proven beyond
reasonable doubt.
Q: What if the accused and the victim, a 10 year old boy
were textmates and the said boy lives in Manila while
the accused lives in the province. Suddenly, the accused
told the boy via text that “I'll be coming to Manila” and
so the boy told her mother to fetch his friend at the port
area. The mother acceding to the boy’s request fetch the
said man at the port area and brought the man to their
house. Since the man has nowhere to go in Manila, he
was allowed to sleep in the house for that night. In the
middle of the night, so the said man was sleeping on the
sofa and the boy was sleeping on the floor with a
mattress. In the middle of the night, the boy was
awakened. The boy was awakened because there was
pain on his stomach and the boy realized the penis of
the man was inserted inside his anal orifice. When the
man saw that the boy was awakened and was crying, the
man removed his penis and fondled the penis of the
boy. Thereafter, the boy crying went to the mother and
the mother told the man to leave. However, the said
man was charged with rape by sexual assault. Is the said
man liable as charged?
A: The said man was liable as charged of rape by sexual
assault. However, when the case reached the Supreme
Court, the SC said that it is rape by sexual assault in
relation to RA 7610.
What is the purpose of saying that it is in relation to RA
7610?
 Because if you look at Article 266-B, the penalty for rape
by sexual assault is only prision mayor. However, under
Section 5(b) of RA 7610, it is expressly provided that if
the victim of acts of lasciviousness is a child under 12
years of age the penalty is reclusion temporal in its
medium period. Rape by sexual assault is within the
meaning of acts of lasciviousness under RA 7610.
Therefore, the purpose of the Supreme Court in saying
Criminal Law Review
Prosecutor Victoria C. Garcia
that the crime committed is Rape by Sexual Assault in
relation to RA 7610 is to increase the imposable penalty
to reclusion temporal in its medium period. Because
otherwise, the penalty would only be prision mayor.
SECTION 5(B) – RA 7610
Under section 5(b) of RA 7610, if the victim of rape is a child
under 12 years of age, the said victim of rape or acts of
lasciviousness is a child under 12 years of age, he shall be
prosecuted for rape under the RPC and for acts of
lasciviousness under the RPC. However, the penalty should
be reclusion temporal to reclusion perpetua. If, however,
the crime committed is acts of lasciviousness and the victim
is under 12 years of age, the penalty is reclusion temporal
in its medium period.
 The penalty becomes higher if it is in relation to RA
7610.
Q: What if the mother arrived home, the mother was
already walking towards home, when she saw that her
young boy was being collared and then thereafter,
twice boxed on the face by the son of the neighbor. Her
boy was only 7 years old. The neighbor’s son was
already 13 years old. Upon seeing that, she was so mad,
she immediately run in fact she already put down the
things that she was bringing, and she ran towards her
son and then thereafter upon reaching the scene, she
slapped the neighbor’s sons on the face twice and push
him hard on the ground. Thereafter, she took her boy
and carried her boy inside the house and cured the
injuries of the said boy. The neighbor’s son however,
informed his parents about what was done to her by the
mother X. As a result the mother X was charged with
violation of RA 7610. Is the said mother liable as
charged?
A: In the case of People vs. Bongalon and People vs. Jubalte
and similar other cases, the Supreme Court said that not all
acts of inflicting violence, not all acts of laying hands on a
child would amount of violation of RA 7610. It is only when
the said act of laying of hands, there is on the part of the
accused, the intent to debase, degrade or demean the
intrinsic worth and dignity of the child as a human being.
Absent that, it would only be slight physical injuries. In this
case, the mother is liable only for slight physical injuries.
Q: When the victim of the injury is a minor how would
you know if it will bring about RA 7610 (child abuse) or
it is only physical injuries?
 If the said act of inflicting injury on the said minor was
done by the accused with a deliberate intent to debase,
degrade or demean the intrinsic worth and dignity of the
said minor, it is child abuse.
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 But if the said act of inflicting harm on the child was done
at the spur of the moment impulsively because of the
circumstances that occur, the crime committed is
physical injuries. Not a violation of RA 7610 because it
cannot be said that at that short span of time, spur of the
moment, there is on the part of the accused the intent to
debase, degrade or demean the intrinsic worth and
dignity of the said victim as a human being.
 In one case, however, the Supreme Court said based on
the testimony of the accused teenagers who were
already 20 years old, “PINAGTRIPAN LANG NAMIN
YUNG BATA.” was their argument and so the charge is
violation of RA 7610. The argument of the counsel is that
according to the Supreme Court in the case of People vs.
Bungalon and in the case of People vs. Jumaldi and
similar cases, it should only be slight physical injuries.
The Supreme Court said that just by the use of the word
“PINAGTRIPAN” coming from the accused themselves, it
means they have the intent to debase, degrade or
demean the intrinsic worth and entity of the said victim
as a human being. Therefore, it is violation of RA 7610
and not merely physical injuries.
R.A. 9262
VIOLENCE AGAINST WOMEN AND THEIR CHILDREN
ACT (VAWC)
Violence against women and their children
 refers to any act or acts committed by a man against his
wife or former wife or against any person against a
woman with whom he has or had a sexual or dating
relationship or against their child whether legitimate or
illegitimate within or without the family abode which
results or likely to result in physical, psychological,
emotional, sexual abuse.
Who is the offender?
 It is the man, the husband, the former husband whether
it is of present marriage or a former marriage. Likewise,
it is a person who has or had a sexual or dating
relationship with said woman victim.
 The Supreme Court said the law used the word “person”
“committed by any person against a woman with whom
he has or had a sexual or dating relationship. When the
law used the word “person”, the SC said that it includes
not only a husband, it includes not only a former
boyfriend, it could be a lesbian.
Q: The woman was in a relationship with another
woman. So X and Y were in a relationship. X was a
lesbian. Y, a woman. Y decided to part ways with X, X
could not accept it and so X threatened Y and one time
inflicted physical injuries on Y forcing Y to go back to
her. Can X be charged in violation of RA 9262?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: Yes, X could be charged violation of RA 9262 because any
person with whom the said woman has or had a sexual or
dating relationship. The said woman Y has a former dating
relationship with the said woman X. Therefore, X can be
charged for violation of RA 9262.
Q: X and Y were married and they were married here. X
went to a foreign country (Singapore) to work. After
one year of working in the said foreign country, Y, the
wife in the Philippines learned that X was having a
relationship with another woman in Singapore. Y was
sent with pieces of evidence showing that her husband
X was maintaining an extra-marital relationship in
Singapore. She was always crying every night until she
decided to file a case of violation of RA 9262 against the
said husband. The moment the said husband arrived
here in the Philippines, she filed a case of violation of
RA 9262 against her husband X. Will the case prosper?
A: The case will prosper as held by the Supreme Court in the
case of AAA vs. BBB and in Araza vs. People, what is being
punished is not only physical violence but also
psychological violence. It is the act of inflicting mental,
psychological harm, suffering on the part of the said
offended party. The Supreme Court said what is being
punished is not the marital infidelity, what is being
punished is the psychological violence being inflicted by the
said husband on the said wife, when he had that extra-
marital affair even in Singapore. The marital infidelity
occurred in the foreign country however, another element
is that of psychological violence, the infliction of mental,
emotional suffering on the said woman and that is being felt
by the woman here in the Philippines.
Therefore, the RTC of Pasig has jurisdiction, the RTC of the
Philippines has jurisdiction because the said psychological
pain, mental pain, suffering was felt by the woman who is
here in the Philippines. The Supreme Court said that this is
a akin to the so-called continuing or transitory offense.
 The offender can be prosecuted before the courts of that
place where any of the elements of the crime happened
and that element of emotional, psychological, mental
pain and suffering was happening here in the
Philippines because it was being felt by the wife here in
the Philippines, although the said relationship occurred
in a foreign country. Therefore, in both cases of AAA vs.
BBB and in Araza vs. People, the husband is criminally
liable for violation of RA 9262.
TITLE NINE - CRIMES AGAINST PERSONSAL LIBERTY
AND SECURITY
ART 267 – KIDNAPPING AND SERIOUS ILLEGAL
DETENTION
ELEMENTS:
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1. The offender is a private individual;
2. The offender kidnaps another or in any manner
deprived him of his liberty;
3. That the said kidnapping or detention is illegal,
without legal grounds;
4. That the said kidnapping or detention is attended
by any of the following circumstances:
a. when the said kidnapping or detention
should have lasted for more than 3 days;
b. if it is committed by simulating public
authority;
c. if any serious physical injuries shall have
been inflicted or threats to kill have been
made; or
d. when the person kidnapped or retained is
a female, a public officer or a minor.
Who is the offender?
 The offender is a private individual.
Can a public officer commit the crime?
 Yes, a public officer can commit the crime if the said
public officer is acting in his private capacity.
 If the said public officer is acting in his private capacity,
the crime committed would be violation of Article 267
and not arbitrary detention under Article 124.
If the said act of kidnapping and detention without legal
ground is attended by the circumstances mentioned, it is
serious illegal detention. If none of this is present in the said
act of kidnapping and detaining another, the crime
committed is Slight Illegal Detention under Article 268.
The following circumstances will qualify the penalty to
death penalty:
1. If the kidnapping or detention is for the purpose of
extorting ransom from the victim or any other
person; or
2. When the said victim is killed or dies as a
consequences of the detention or raped or is
subjected to torture or the humanizing acts, the
maximum penalty prescribed by law shall be the
one imposed.
These circumstances will qualify the penalty to death.
 If the kidnapping or detention is for the purpose of
extorting ransom from the victim or any other person,
by the wordings used by the law, it is sufficient that the
intent of the kidnapper is to extort ransom. It is not
required that ransom be paid, it is not required that his
intent to extort ransom must be communicated by the
kidnapper to the relatives of the victim. It suffices that it
was his intent in kidnapping and detaining the victim.
Criminal Law Review
Prosecutor Victoria C. Garcia
RANSOM
 refers to money or any other consideration given by the
offended party, given by the relatives of the victim, in
order to exchange for the liberty of the victim.
 The amount is immaterial for as long as it is demanded,
given in exchange for the liberty of a person held him
captive, it is considered as ransom.
Under the last paragraph of Article 267 as amended by RA
7659, when the victim is killed or dies as a consequence of
the detention or is rape or subjected to torture or other the
dehumanizing acts, the maximum penalty prescribed by
law which is death shall be imposed.
 When the victim is killed or dies as a consequence of the
kidnapping or detention, the crime is kidnapping and
serious illegal detention with homicide.
 When the said victim is rape, the crime is kidnapping
and serious illegal detention with rape.
Special Complex Crime Kidnapping and Serious
of Rape with Homicide Illegal Detention with
Homicide
Regardless of who the It must be the victim of
victim of the killing is, for Kidnapping or detention
as long as the homicide who must be killed, who
occurred by reason or on must die.
the occasion of rape.
Likewise, it must be the
very victim of kidnapping
or detention who must be
raped.
 If it is another person who is killed, if it is another person
who is raped, it will constitute a separate and distinct
charge.
In one case, the child was kidnapped. A year thereafter, the
mother received a call, the person at the other end of the
line was telling the mother that they will give the said boy
in exchange for P30,000 and that they should meet in this
particular place. There was this entrapment operation. The
mother was able to get her boy after more than a year and
there was exchange of P30,000. The case file was
Kidnapping and Serious Illegal Detention for ransom. The
RTC of Lanao said it should only be kidnapping and serious
illegal detention, it said that the P30,000 is too measly a sum
to be considered as ransom, it is only considered as the
expenses of the kidnappers for the board and lodging of the
boy for the term of more than a year.
The Supreme Court said that there's no such thing as too
measly a sum for ransom, even if it is a single centavo if
without that single centavo the victim would not be
released, that is ransom. Amount is immaterial.
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Q: X wanting to have money, could not find a job, he saw
this boy and for a week he had been looking at this boy,
it seems that every 12:00 o'clock noon, the boy will be
getting out of this exclusive school and then the boy
would be sitting on the bench outside and then a few
minutes later here comes a van that will pick up the boy.
He decided to kidnap the said boy in order to extort
ransom from the family of the boy. That Monday
morning, he parked his tricycle there, waiting for the
boy to come out. By 12:00 o'clock, he saw the boy.
Thereafter, he ran towards the boy, covered him,
brought the boy inside his tricycle and brought the boy
to his place. While he was about to call the parents in
order to ask for ransom, suddenly, the police officers
arrived and announced their arrival, everything was so
sudden for X, he wasn't able to move. X was arrested,
the boy was rescued. What crime is committed by X?
A: X is liable for Kidnapping and Serious Illegal
Detention for ransom. His purpose in kidnapping the said
boy was to extort ransom from the parents of the boy, even
if he has not yet communicated it at the parents, even if he
did not receive the ransom, since that was his purpose it is
already Kidnapping and Serious Illegal Detention for
ransom.
It is Kidnapping and Serious Illegal Detention because the
boy is a minor. Therefore, it would fall under the
circumstances that will make illegal detention serious.
Hence, it is Kidnapping and Serious Illegal Detention for
ransom.
Q: Let us add facts, while the boy was there inside the
house of X and X was negotiating the ransom to the
parents, the parents were bargaining for the amount. X
was asking for 10 million, the parents were asking for a
lower price. The boy tried to escape and so X killed the
boy, by shooting the boy. The boy died. What crime is
committed by X?
A: X is liable for Kidnapping and Serious Illegal Detention
for for ransom with homicide. As held by the Supreme Court
in the case of People vs. Dionaldo if in the course of the
said kidnapping the victim is killed but the purpose of the
kidnapping was to extort ransom, it is kidnapping and
serious illegal detention for ransom with homicide.
Q: When the boy tried to escape, X saw him. X put down
the phone and X shot the boy. At that precise moment
the boy fell, here comes the girlfriend of X, the girlfriend
of X was about to bring food to X. When the girlfriend
saw that X shot the boy and the boy fell on the ground
lifeless, the girl became hysterical and said “Why did
you kill him, our agreement is that he should only be
detained until the ransom, so no killing, why did you kill
him?” and the said girlfriend became hysterical and so
X shot the girlfriend. The girlfriend died. What
crime/crimes are committed by X?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: Insofar as the boy is concerned, the crime committed is
kidnapping and serious illegal detention for ransom
with homicide.
Insofar as the girlfriend is concerned, it will constitute a
separate and distinct charge of homicide. The killing of the
girlfriend cannot be absorbed by kidnapping and serious
illegal detention for ransom with Homicide because the
girlfriend is not the victim of the same kidnapping and
detention. Therefore, the killing of the girlfriend will
constitute a separate and distinct charge.
In this case, two cases shall be filed against X. One is
Kidnapping and Serious Illegal Detention for ransom with
homicide and the other one is a separate and distinct charge
for homicide. It is homicide and not murder because it
happened at the spur of the moment, no treachery attended
the act of killing.
Q: The woman while attending a birthday party decided
to get out of the house. When she got out of the house,
she has to get something from the car and so she went
out of the gate of the house, opened their car, she was
trying to get something when suddenly here comes W,
the man. W immediately embraced the said woman,
slapped the woman and then thereafter forcibly took
the said woman and brought the woman inside his
owner-type jeepney and from the said place to another
places, he brought the said woman and he would always
have carnal knowledge of the said woman. He held the
woman for 39 days and he had carnal knowledge of the
said woman 27 times. What crime/crimes are
committed by the said man?
A: The man is liable for kidnapping and serious illegal
detention with rape. The Supreme Court said that evidently
there was on the part of the month intent to detain the said
woman. In fact, he brought the woman from one place to
another, detaining her, depriving her of her liberty and in
every place he would have carnal knowledge of the said
woman.
Since it is a special complex crime, regardless of the number
of times the victim had been raped, they're all absorbed in
the single indivisible offense of kidnapping and serious
illegal detention with rape. It is Serious Illegal Detention
because the victim is a female and so it is Kidnapping and
Serious Illegal Detention with rape, and regardless of the
fact that the said woman was raped allegedly 27 times.
ARTICLE 268 – SLIGHT ILLEGAL DETENTION
 Slight illegal detention is committed by: any person who
shall kidnap or detains another or in any other manner
deprive him of his liberty when the said detention is
illegal absent of any of the circumstances under Art 267;
it will only be slight illegal detention.
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Voluntary release of the victim may be considered as a
privileged mitigating circumstance if the following
requisites concur:
1. It is necessary the release has been made within 3
days from the commencement of the said
kidnapping;
2. It must have been made without the offender
having attained or accomplished his purpose;
3. It must have been made before the institution of
the criminal proceedings against the said offender.
Q: The accused kidnapped his rival, he used to be
friends with Y but since Y has put up the same business
as X, there was this feud between the two of them and
so X saw an opportunity. X kidnapped Y. His intention
was to detain Y for at least a month, his intention was to
keep Y from doing his business, to detain Y. He brought
Y to his place, gave Y food. However, that very same
night when X was on his way home, he has a change of
mind. Afraid of what would happen to him, he
immediately went back to the place where he detained
Y and X immediately released Y. Without saying
anything, he just untied Y and told Y that he free to
leave. Is X liable of any crime?
A: X is liable for slight illegal detention under Article 268.
The offender is a private individual. He kidnaps and detains
Y. The said kidnapping and detention of Y is without legal
ground, his purpose was to prevent him from doing
business for a period of a month. The said kidnapping and
detention did not last for more than three days, that very
same night he allowed him to leave. There was no
simulation of public authority, there was no serious
physical injuries inflicted, no threats to kill has been made
and Y is not a female, not a public officer and not a minor.
Therefore, X is liable for slight illegal detention.
Since X released Y, such release would mitigate his criminal
liability, would lower his criminally liability, the penalty
imposed on him by one degree. The reason is the said
release was made within three days from the
commencement of the kidnapping and detention. The said
release was made without the offender having attained his
purpose and the said release was made without the said
offender being charged. Therefore, X’s act of releasing Y
complied with the conditions provided for under Article
268 and it will lower the imposable penalty by one degree.
ARTICLE 269 – UNLAWFUL ARREST
 Unlawful arrest is committed by: any person who shall
arrest another in order to deliver him to the proper
authorities although he is not authorized by law to do so.
Criminal Law Review
Prosecutor Victoria C. Garcia
 The offender in an unlawful arrest can be any person. He
can be public officer or employee or he can be private
individual.
What was his purpose in arresting? What was his purpose
in detaining another person?
 In order to deliver him to the proper authorities. That is
in order to file a case against him, yet he's not authorized
by law to do so.
If the offender who arrest another for the purpose of
delivering him to the proper authorities is a public officer,
know based on the facts what was his intent:
 If the intent of the said public officer is to detain him, it
will be arbitrary detention.
 If the intent of the said public officer is to file a case
against him although it is without legal ground, although
he is not allowed by authority, it is unlawful arrest.
If it's a private individual, there is no problem. But if it is a
public officer, distinguish whether it is arbitrary detention
or unlawful arrest.
ARTICLE 270 – KIDNAPPING AND FAILURE TO
RETURN A MINOR
 Kidnapping and failure to return a minor is committed
by: any person who had been entrusted with the custody
of a minor, shall fail to restore the said minor
deliberately to his parent or guardian.
 What is punished by law is the deliberate failure of the
offender to restore the said minor to his parents or
guardian. He must be the one entrusted.
ARTICLE 271 – INDUCING A MINOR TO ABANDON HIS
HOME
 In inducing a minor to abandon his home, the offender
induces the minor to leave the place of his parents,
guardian or any person having custody of the minor.
 It is not necessary that the minor actually left the place.
It suffices that there was inducement done on the minor
to leave the said place, to cause damage on the said man.
 Note that Articles 270 and 271 can be committed even
by the parents of the minor. However, although it can be
committed even by the parents of the said minor, the
penalty would only be arresto mayor, it is lower.
 The penalty for kidnapping and failure to return a minor
is reclusion perpetua but if the offender is the parents of
the minor, the penalty will be reduced only to arresto
mayor.
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ARTICLE 272 – SLAVERY
ELEMENTS:
1. The offender purchases, sells, kidnaps or detains a
human being;
2. The purpose of the offender is to enslave such
human being.
ARTICLE 273 – EXPLOITATION OF CHILD LABOR
ELEMENTS:
1. Offender retains a minor in his service;
2. It is against the will of the minor;
3. It is under the pretext of reimbursing himself of a
debt incurred by an ascendant, guardian or person
entrusted with the custody of such minor.
ARTICLE 274 – SERVICES RENDERED UNDER
COMPULSION IN PAYMENT OF DEBT
ELEMENTS:
1. Offender compels a debtor to work for him, either
as household servant or farm laborer;
2. It is against the debtor’s will;
3. The purpose is to require or enforce the payment
of a debt.
ARTICLE 275 – ABANDONMENT OF PERSONS IN
DANGER AND ABANDONMENT OF ONES OWN VICTIM
Q: What if X was walking, he was about to fetch his wife.
The wife was at the bus station, it was past 11:00 o'clock
in the evening. As he was walking, he saw a man lying
on the side of the street, almost near the canal, the man
was bleeding. It is obvious that the man was a victim of
a hit and run accident. The man asked help from X but
X did not give help. X left the man. Is X liable for
abandonment of persons in danger under Article 275?
A: Under Article 275, there are three acts punished as
abandonment of persons in danger:
1. Failing to render assistance to any person whom
the offender found in an uninhabited place
wounded or in danger of dying when he can render
such assistance without detriment to himself,
unless such omission shall constitute a more
serious offense.
Criminal Law Review
Prosecutor Victoria C. Garcia
2. Failing to render help or assistance to another
whom the offender has accidentally wounded or
injured.
3. Failing to deliver a child under 7 years of age whom
the offender has found abandoned, to the
authorities or to his family, or failing to take him to
a safe place.
In the case, it falls on the first act. The first act requires for
one to be liable that:
a. the offender must have found or he must have
chanced upon this person in danger of dying in an
uninhabited place;
b. he could give help to him but he decided not to give
help.
c. there will be no detriment to himself even if give
help to him but he did not give help, he refused.
By his act of omission, he becomes liable under Article 275.
X saw the man wounded, in danger of dying, lying on the
street. However, the street cannot be considered as an
uninhabited place. It is a street vehicles passed by, people
pass by. Therefore, it cannot be considered as uninhabited.
Any person can pass by, any car can pass by and give help.
Therefore, X cannot be liable under Article 275.
Q: What if in this in this particular sea, it used to be
filled with people during summer, it used to be one of
the places filled with people but now it is abandoned
because of the pandemic. X happened to pass by in the
said place, he was doing some exercise when you
reached the place and he decided to jogged along the
seashore, when suddenly he saw a man there on the sea,
raising his hand and asking for help. The man was
drowning. The man was asking for help, X who is very
good and expert in swimming, instead of helping, left
the man. Fortunately, a fishing boat passed by and the
said man was rescued. Is X liable for abandonment of
persons in danger?
A: X is liable for Abandonment of persons in danger. Based
on the facts, although the said place used to be a resort
wherein people gathered, at that time it was abandoned. X
saw the victim there, in danger of dying, drowning. X can
give help, he was an expert in swimming but he decided to
leave. For his act of omission, he becomes liable for violation
of Article 275.
Q: X was driving his car. He was driving his car within
LTO rules and regulation when suddenly the tire of his
car hit a stone and the stone flew. The stone hit the head
of a bystander. The head started to bleed. Is X liable for
the injuries sustained by the man?
A: X is not liable for the injuries sustained by the man. He is
exempted, it is an exempting circumstance. It is purely an
accident, it is an exempting circumstance under the 4th
paragraph of Article 12. He was performing a lawful act
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when he caused injury to another without fault, without
intent on his part, it just so happened that his car hit a stone
and the stone flew and hit the head of the said woman that
caused bleeding. He's not liable.
Q: Let us add facts: when X saw that the head of the
woman was bleeding, instead of alighting to bring the
woman to be nearest clinic or hospital, this time he
increased speed and left. Is X liable of any crime?
A: X is liable for abandonment of one's own victim under
Article 275. X is not liable for injuring the said woman. X is
liable for failing to give help to his own victim whom he has
accidentally injured. For failing to render assistance, he
becomes criminally liable.
Q: X was driving recklessly, he was in a hurry. He hit and
bump a pedestrian. The pedestrian was thrown. Upon
seeing that, he immediately drive his car. He did not
alight to bring the said victim to the hospital. Is X liable
for abandonment of persons in danger or abandonment
of one’s own victim under Article 275?
A: No, Article 275 would only apply if the said accused
accidentally wounded the said victim under the exempting
circumstance of Art. 12. In the problem, X at the outset was
driving recklessly, at the outset there was imprudence,
there was negligence on the part of the said offender.
Therefore, Article 275 would not apply. His liability would
be reckless imprudence resulting in serious physical
injuries and his act of failing to give help to his own victim
under Article 365 last paragraph would mean an increase
by one degree on the imposable penalty. It will be an
aggravating or qualifying circumstance in reckless
imprudence resulting in homicide or serious physical
injuries.
ARTICLE 276 – ABANDONING A MINOR
ELEMENTS:
1. Offender has the custody of the child;
2. Child is under 7 years of age;
3. He abandons such child;
4. He has no intent to kill the child when the latter is
abandoned.
ARTICLE 277 – ABANDONMENT OF MINOR BY A
PERSON ENTRUSTED WITH HIS CUSTODY;
INDIFFERENCE OF PARENTS
ACTS PUNISHED:
1. Abandonment of a child by a person entrusted with
his custody.
Criminal Law Review
Prosecutor Victoria C. Garcia
 It is committed by: any person who, having entrusted
with the living and education of a minor shall deliver a
minor to a public institution or other persons without
the consent of the person who entrusted such minor to
the care of the offender or, in his absence, without the
consent of the proper authorities.
2. Indifference of parents
 It is committed by: any parent who neglects any of his
children by not giving them the education which their
station in life requires and financial capability permits.
ARTICLE 278 – EXPLOITATION OF A CHILD
ACTS PUNISHED:
1. Causing any boy or girl under 16 to engage in any
dangerous feat of balancing, physical strength or
contortion, the offender being any person.
2. Employing children under 16 years of age who are
not the children or descendants of the offender in
exhibitions of acrobat, gymnast, rope walker, diver,
or wild animal tamer, the offender being an
acrobat, etc., or circus manager or person engaged
in any of said callings.
3. Employing any descendants under 12 years of age
in dangerous exhibitions enumerated on the next
preceding paragraph, the offender being engaged
in any of the said callings.
4. Delivering a child under 16 years of age
gratuitously to any person if any of the callings
enumerated in paragraph 2, or to any habitual
vagrant or beggar, the offender being an ascendant,
guardian, teacher, or a person entrusted in any
capacity with the care if such child.
5. Including any child under 16 years of age to
abandon the home of its ascendants, guardians,
curators or teachers to follow any person entrusted
in any of the callings mentioned in paragraph 2 or
to accompany any habitual vagrant or beggar, the
offender being any person.
ARTICLE 279 - ADDITIONAL PENALTIES FOR OTHER
OFFENSES
ARTICLE 280 - QUALIFIED TRESSPASS TO DWELLING
ARTICLE 281 – OTHER FORMS OF TRESSPASS TO
DWELLING (TRESPASS TO PROPERTY)
Trespass to Dwelling Trespass to Property
The offender is a private The offender can be any
individual. person. He could be a
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The place entered into is a
dwelling. It is inhabited.
The prohibition to enter
can either be express or
implied.
The offender entered
against the will of the
owner.
Trespass to Dwelling
 When the offender is a private individual, he enters a
dwelling of another and said entry is done against the
will of the owner.
private individual or a
public officer/employee.
The place entered into is a
closed premises or estate.
It must be uninhabited.
The prohibition to enter is
manifest.
The offender entered
without securing
permission from the
owner or the caretaker
thereof.
Criminal Law Review
Prosecutor Victoria C. Garcia
a case for Qualified Trespass to Dwelling because of the
violence employed.
A: Z is not liable. Under Article 280, there are certain
instances where in the offender doesn't become criminally
liable:
1. When the said offender enters another person’s
property in order to prevent some injury to
himself, to the occupant of the said dwelling or to
another person;
2. When the said act of entering in another person’s
place was done in order to render service to justice
or to humanity; or
3. When the place entered into is a coffee, tavern, inn
or any other similar public places.
Z entered the place, the dwelling of X and Y to render some
service to humanity. Had he not turn off the faucet for two
weeks, there will be flood and water would be wasted.
Therefore, Z cannot be held liable for trespass to dwelling.

 When violence or intimidation has been done, the
penalty is qualified.
Trespass to Property
 The offender enters the closed estate or fenced premise
of another. At the time of entry, it was uninhabited.
 The prohibition to entry is made manifest yet the
offender entered the said place without securing
permission from the owner or the caretaker thereof.
In case of trespass to dwelling, there are certain instances
wherein even if the offender entered the building or the
premises of another, he cannot be held criminally liable for
trespassing.
Q: X and Y and the entire family went on a vacation. No
one was left in the house. They will be gone for two
weeks, they're going to Hong Kong. They left the place
early morning. At about lunchtime, the people notice
that the strip near the house of X and Y have waters.
There was never flood on this place, not even during the
rainy season. They didn't mind it. However, the
following morning, the waters rose. One of the
neighbors by the name of Z looked and he realized that
the waters were coming out from the house of X and Y
and so he broke the lock of the house. He entered and
there he saw that X and Y and their family left the faucet
opened in full. In fact, the inside of the house was
already flooded. Thereafter, Z turned off the faucet and
he bought a new lock and placed it on the door of the
house of X and Y. Two weeks thereafter, X and Y arrived.
They immediately took notice that it has a different
lock. They inquired and Z came up to them and
admitted what he did. X and Y were very mad. They filed
THREE KINDS OF THREATS:
1. Grave Threats
2. Light Threats
3. Other Light Threats
ARTICLE 282 – GRAVE THREATS
PUNISHABLE ACTS:
1. Threatening another with the infliction upon his
person, honor or property or that of his family of
any wrong amounting to a crime and demanding
money or imposing any other condition even
though not unlawful, and the offender attained his
purpose.
2. By making such threat with the infliction upon his
person, honor or property or that of his family of
any wrong amounting to a crime and demanding
money or imposing any other condition even
though not unlawful and without the offender
attaining his purpose.
3. By threatening another with the infliction upon his
person, honor or infliction upon his person, honor
or property or that of his family of any wrong
amounting to a crime, the threat not being subject
to any demand of money or imposition of any
condition.
 In case of grave threats, the wrong threatened to be
committed will always amount to a crime.
ARTICLE 283 – LIGHT THREATS
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 Light threats is committed if a person threatens another
with the commission of any wrong which does not
amount to a crime. But it always coupled with a demand
for money or the imposition of any other condition even
though not unlawful, regardless of whether the offender
attain or does not attain his purpose.
 In case of light threats, the wrong threatened to be
committed does not amount to a crime.
 Insofar as grave threats and light threats are concerned,
its essence is the promise of a future wrong, promise of
a future harm. Therefore, its essence is intimidation.
The wrong threatened to be committed is not NOW but
in the future.
 In case of threats, it can be committed not only directly
by a person, it can also be committed in writing or
through a middleman, through a third person.
 If it is committed in writing or through a middleman
under article 282, the penalty is qualified.
ARTICLE 284 – BOND FOR GOOD BEHAVIOR
 “In all cases falling within the two next preceding
articles, the person making the threats may also be
required to give bail not to molest the person
threatened, or if he shall fail to give such bail, he shall be
sentenced to destierro.”
ARTICLE 285 – OTHER LIGHT THREATS
There are 3 instances or punishable acts under light threats:
1. By threatening another with a weapon or by
drawing such weapon in a course of quarrel, unless
it be in lawful self-defense;
2. By orally threatening another, in the heat of anger,
with some wrong constituting a crime, without
persisting in the idea involved in his threat.
3. By orally threatening another, in the heat of anger
with some wrong not amounting to a crime.
 Even if the wrong threatened to be committed would
amount to a crime, if it was done by the offender in the
heat of anger and he did not persist with the idea
thereof, the crime committed his only other light threats.
Q: X was so mad at Y. Y in putting up a fence has
occupied a certain portion of X’s piece of land, he went
to , he was calling on Y to get out, he was challenging Y
to a fight and has been telling to Y “Get out! I am going
to kill you! I'm going to hack your head! I’m going to kill
you! Get out right now!” The threat amounts to a crime.
Criminal Law Review
Prosecutor Victoria C. Garcia
X was very mad. Y did not get out, 5 minutes, 10
minutes, 15 minutes passed, Y didn't get out. X left and
X didn’t persist with the idea.
A: The crime committed is Other Light Threats under
Article 285.
Q: X, without saying anything, poke a gun at Y. After
staring at Y for a few minutes, for a few seconds, X left.
A: The crime committed is Other Light Threats. He
threatens another with the weapon.
Q: However, X poked the gun at Y and then thereafter,
while he was poking the gun at Y told Y “The next time I
see you, I'm going to kill you remember that.” Then X
left.
A: It is now Grave Threats because from the mere act of
threatening Y with a weapon, he now made the statement
“I'm going to kill you the next time I see you.” The said threat
amounting to a crime amounting to homicide or murder.
Therefore, the crime committed with this time would be
Grave Threats.
Q: X went to Y and told Y “You pay me your loan. I heard
you have money. Pay me now.” Y said “I have no money.”
X said “I'm giving you 24 hours produced the money or
else you cannot see tomorrow.” X left. What crime is
committed?
A: Grave Threats. The wrong to be committed is not now
but in the future.
Q: X went to Y “Pay your loan! You pay your loan right
now.” Y said “I have no money.” “I know you have money.
I heard you have money for your loan right now” “Like I
said I have no money.” X gave the signal to his two
bodyguards. The bodyguards held both arms of Y “Are
you going to pay me now or I will stab you and ransack
your house.” What crime is committed?
A: It is now Grave Coercion. The difference is that in case
of threats, the wrong threatened to be committed is in the
future. In case of grave coercion, the wrong threatened to
be committed is now, direct, personal, impending to
happen, waiting to happen now. Therefore, coercion can be
can not be committed by means of writing or through an
intermediary. It must always be done directly personally.
ARTICLE 286 – GRAVE COERCIONS
Two kinds of Grave Coercion:
a. Preventive coercion
 there is preventive coercion when the offender by
means of violence, threat or intimidation prevents
another from doing an act not prohibited by law. He
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prevents another from doing a lawful act by means of
violence, threats or intimidation.
b. Compulsive coercion
 when the offender compels another to do an act against
his will whether it be right or wrong by means of
violence, threats or intimidation.
 Whether it is right or wrong, no person can compel
someone to do something against his will by means of
violence, threats or intimidation, otherwise he will be
the one criminally liable.
Q: X has not been paying his rental fee, the landlord said
“You pay me now, if you will not pay me now I will throw all
your things outside.”
A: The landlord cannot force a person to do something
against his will, cannot force him to leave that house even if
he is not paying. The landlord still have to go to court and to
file an ejectment case but you cannot force him to leave that
house even if he stopped paying for years. Otherwise, the
landlord will be liable for Grave Coercion.
ARTICLE 287 – LIGHT COERCION
 It is committed by a creditor who shall seize anything
belonging to his debtor by means of violence or
intimidation in order to apply the same to the
indebtedness.
There is one form of light coercion under Article 287, that is
UNJUST VEXATION. It is a form of light coercion.
UNJUST VEXATION – refers to any human conduct, which
although not capable of producing any material harm or
injury, annoys, vexes or irritates an innocent person.
ARTICLE 288 – OTHER SIMILAR COERCIONS;
(COMPULSORY PURCHASE OF MERCHANDISE AND
PAYMENT OF WAGES BY MEANS OF TOKENS)
 Other light coercion is committed by forcing or
compelling directly or indirectly or knowingly
permitting the forcing or compelling any employee or
laborer to buy merchandise or commodities from the
said employer. And lastly, by paying the wages due to the
laborer or employees by any tokens or object other than
the legal tender currency of the Philippines unless to be
requested by the said employee or laborer.
Criminal Law Review
Prosecutor Victoria C. Garcia
ARTICLE 289 - FORMATION, MAINTENANCE AND
PROHIBITION OF COMBINATION OF CAPITAL OR
LABOR THROUGH VIOLENCE OR THREATS.
ARTICLE 290 – DISCOVERING SECRETS THROUGH
SEIZURE OF CORRESPONDENCE
 This is committed by any person who shall seize any
correspondence of another in order to discover the
secret of any person.
ARTICLE 291 – REVEALING SECRETS WITH THE
ABUSE OF OFFICE
 This is committed by a manager or by an employee or by
a servant who reveals the secrets of his principal or
master learned by him in such capacity.
ARTICLE 292 – REVELATION OF INDUSTRIAL
SECRETS
 This is committed by any person in charge, employee or
workman of a manufacturing or industrial
establishment who shall learn and discover the secrets
of the industry and shall reveal the same to the prejudice
of the owner thereof.
TITLE TEN - CRIMES AGAINST PROPERTY (ART. 293 –
ART. 332)
ARTICLE 293 – WHO ARE GUILTY OF ROBBERY?
ROBBERY – is the unlawful taking of the personal property
belonging to another by means of violence against or
intimidation of persons or by using force upon things
ELEMENTS:
1. There must be unlawful taking;
2. The thing taken must be personal property
belonging to another ;
3. The act of taking must be done with intent again;
and
4. The act of taking must be done either with violence
against intimidation of persons or using force upon
things.
In case of robbery, the thing taken must be personal
property and the personal property must belong to another
person because it must be done with intent to gain.
If the thing taken by the offender belongs to him you wanted
to recover the said property, it cannot be considered,
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robbery. Because he did not do so with intent to gain but
only to claim ownership of the said property. Since there's
no intent again it cannot be considered as robbery.
There are two ways of committing robbery:
1. Robbery with violence against or intimidation of
persons punished under Article 294 ;
2. Robbery by use of force upon things under Article
299
ARTICLE 294 – ROBBERY WITH VIOLENCE AGAINST OR
INTIMIDATION OF PERSONS
The following acts constitute robbery with violence
against or intimidation of persons:
1. When by reason or on occasion of the robbery, the
crime of homicide is committed.
2. When robbery is accompanied by rape or
intentional mutilation or arson.
3. When by reason or on occasion of such robbery,
any of the physical injuries resulting in insanity,
imbecility, impotency or blindness is inflicted.
4. When by reason or on occasion of robbery, any of
the physical injuries resulting in the loss of the use
of speech or the power to hear or to smell, or the
loss of an eye, a hand, foot, an arm, or a leg or the
loss of the use of any such member or incapacity to
go to work in which the injured person is thereto
habitually engaged is inflicted.
5. If violence or intimidation employed in the
commission of the robbery is carried to a degree
clearly unnecessary for the commission of the
crime.
6. When in the course of its execution, the offender
shall have inflicted upon any person not
responsible for the commission of the robbery any
of the physical injuries in consequence of which the
person injured becomes deformed or loses any
other member of his body or loses the use thereof
or becomes ill or incapacitated for the performance
of the work in which he is habitually engaged for
more than 90 days or the person injured becomes
ill or incapacitated for labor for more than 30 days.
7. If violence employed by the offender does not
cause any of the serious physical injuries defined in
Article 263, or if the offender employs intimidation
only.
To shorten it, we have:
a. Robbery with homicide;
b. Robbery with rape;
c. Robbery with intentional mutilation;
d. Robbery with arson;
e. Robbery with serious physical injuries;
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f. Robbery with unnecessary violence; and
g. Simple robbery.
Art. 295. Robbery with physical injuries, committed in
an uninhabited place and by a band, or with the use of
firearm on a street, road or alley.
Art. 296. Definition of a band and penalty incurred by
the members thereof.
Art. 297. Attempted and frustrated robbery committed
under certain circumstances.
Art. 298. Execution of deeds by means of violence or
intimidation.
When by reason or on occasion of robbery, a crime of
homicide is committed, we have the special complex crime
of ROBBERY WITH HOMICIDE. For this special complex
crime of robbery with homicide to arise, it is necessary that
the original criminal intent of the offender is to rob. And, by
reason, on the occasion of the said robbery, Homicide is
committed. The act of killing or the act of homicide may take
place before during or after the robbery for as long as it was
committed by reason or under occasion thereof, and the
criminal intent was to rob. The word homicide is used in
its generic sense. It refers to all kinds of killing whether
it be murder, parricide, infanticide or even accidental
death. Even if it is accidental death, it would be considered
as homicide. So, it is a genetic term use for all kinds of death
that would occur by reason or on occasion of the said act of
committing robbery.
Since it is a special complex crime, regardless of the
number of persons killed, there is only one single
indivisible offense of robbery with homicide. There is
no such crime is robbery with double homicide or
robbery with multiple homicide. ONLY ROBBERY WITH
HOMICIDE.
This same principle applies also in the case of ROBBERY
WITH RAPE, ROBBERY WITH INTENTIONAL
MUTILATION, ROBBERY WITH ARSON AND ROBBERY
WITH SERIOUS PHYSICAL INJURIES for as long as the
original criminal intent of the offender is to rob, the
intentional mutilation, the arson, as well as the serious
physical injuries may be committed before during or
after the commission of the said crime of robbery.
Since it is a single indivisible offense, ROBBERY WITH
RAPE, ROBBERY WITH INTENTIONAL MUTILATION,
ROBBERY WITH ARSON AND ROBBERY WITH SERIOUS
PHYSICAL INJURIES, regardless of the number of victims
raped, mutilated, regardless of the houses burned,
regardless of the physical injuries inflicted, there is only one
single indivisible offense.
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You have to know the sequence, or the hierarchy as
provided for under Art. 294. Reason is, if in the
commission of robbery there is killing, there is rape,
there is burning of the house, the crime committed is
robbery with homicide. The burning of the house, the
rape, are all absorbed in the single indivisible offense
of robbery with homicide because it is the first in
sequence provided for under Article 294.
You do not consider the sequence of the commission of the
crime by the accused even if in the course of the robbery,
rape was committed ahead of the killing. Even if the rape
was committed ahead of the killing, even if the infliction of
serious physical injuries was committed ahead of the
killing, if the victim or any other person was killed, it is
robbery with homicide. The rape and the physical injuries
will all be absorbed because what you observe is the
sequence under Article 294 and not the sequence of the
commission of the crime by the said accused/offender.
Q: X was wanted to rob this house. In order to rob this
house, X passed by this open window. Upon entering
the window, he was able to gain entry inside. There
inside, he was taking all the valuables from the cabinet.
However, here comes the owner of the house. The
owner of the house went upstairs. Upon opening the
door of the master’s bedroom, there was X. X was taking
valuables. The owner of the house tried to stop him and
there was a fight between X and the owner. In the
course thereof, X put out his gun, he tried to shoot the
owner however they struggled for the possession of the
gun. In the course of the struggle for the possession of
the gun, the gun fired hitting the wife of the owner. The
wife fell on the floor. She's dead. Because of what
happened to the wife, the said accused, X, was able to
get hold of the gun. Upon getting hold of the gun, he
fired at the owner. The owner died. Thereafter, he took
away whatever valuables they could take, left the place,
but before leaving the place, in order to conceal his
crime, he set the house on fire. What crime/s is/are
committed by X?
A: X is liable for ROBBERY WITH HOMICIDE. In reality, he
committed robbery. He committed the act of killing the wife.
He committed the act of killing the husband. He also
committed arson. However, since his original criminal
intent was to rob, the crime committed would be robbery
with homicide because the said act of homicide was
committed by reason or on occasion of the said robbery.
And the said act of burning the house was also committed
in the course of this end robbery. Therefore, what will
happen now is it will be absorbed by the crime of robbery
with homicide.
Q: X was on her way home. While, she was on her way
home, a man appeared in front of her. And, the man told
her, “this is a hold up. Give me your bag. Otherwise, I'm
going to stab you.” So that she would not be hurt, X gave
the bag to the man. X was about to leave. She was about
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to leave but suddenly the man raises his arms around
the neck of X and rob X. Covering her mouth, he dragged
X in a vacant house. There, he boxed and pinned down
X, and had carnal knowledge of X. Thereafter the man
left taking the back of X. What crime/crimes had been
committed by the man?
A: The man is liable for ROBBERY WITH RAPE. The original
criminal intent of the man was to rob – “This is a holdup.
Give me your bag. Otherwise, I'm going to stab you.”
Therefore, the intent was to rob so it is robbery. On the
occasion thereof, by reason thereof, he raped the said
victim. The said act of rape was an afterthought. The woman
was about to leave but suddenly he placed his arms around
the neck of the woman. The crime committed is robbery
with rape.
Q: Let us add facts. After X had carnal knowledge of the
said woman, he was about to leave with a bag but
suddenly he realized the woman recognizes his face.
Before leaving, he stabbed the woman to death. What
crime is committed by X?
A: X is liable for ROBBERY WITH HOMICIDE. The original
criminal intent was to rob. And, by reason or on occasion
thereof, he raped the victim. Thereafter, killed the victim.
Even if the rape happened ahead of the killing, since the
robbery with homicide is the 1st in sequence under Article
294, the crime committed is robbery with homicide. And,
the rape is simply absorbed by the single indivisible offense
of robbery with homicide.
Q: X was on her way home. Suddenly the man appeared
in front of X. The said man covered mouth of X and
boxed her stomach twice. Thereafter, the man brought
X to a vacant house. And there, the man had carnal
knowledge of X. After the carnal knowledge of X, the
man was about to leave. But the man saw the jewelries
of X – the necklace, earrings, ring. The man forcibly took
the necklace. However, when the man was taking the
earrings, X put up a fight. She was trying to stop the man
from taking her earrings. And so, the man stabbed her.
Thereafter, took the earrings. What crime/s is/are
committed by the man? What was the original of
criminal intent?
A: TO RAPE - covered her mouth, boxed her stomach,
brought her to a place and then thereafter had carnal
knowledge of her. Therefore, the original criminal intent
was to rape.
Q; When he was about to leave, he saw the jewelry. He
wanted to take the jewelry as an afterthought. He
wanted to take the jewelries. However, the woman put
up a fight and so he killed a woman. Therefore, what are
the crimes committed?
A: ROBBERY WITH HOMICODE.
So, in this case, there are two crimes committee: first –
RAPE. His original criminal intent was to rape. Thereafter,
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he committed ROBBERY WITH HOMICIDE because in the
course of committing the said act of robbery, the woman put
up a fight and so he employed force and violence.
The said act of rape cannot be absorbed by the special
complex crime of robbery with homicide because the said
act of rape is the original criminal intent separate and
distinct from the act of robbery with homicide.
Q: Same problem. The said woman was on her way
home. While the woman was on her way home,
suddenly, the man appeared in front of the said woman.
The man covered the mouth of the woman, bought the
woman in the secluded place and then thereafter had
carnal knowledge of the said woman. The man was
about to leave. But realizing that this woman recognizes
his face, he stabbed the woman to death. After stabbing
the woman to death, he took notice of the jewelries of
the woman. He took the jewelries of the woman. What
crime/s is/are committed by X? What was the original
criminal intent story?
A: TO RAPE. By reason thereof, he killed the woman so that
the woman would not be able to report it. Therefore we
have RAPE WITH HOMICIDE.
When he was about to leave after killing his victim, he took
the jewelries. There is another crime of THEFT.
This time it is THEFT. It is not robbery because the woman
was already dead. No force no intimidation can already be
employed on a deceased person.
So, in this case, 2 crimes – RAPE WITH HOMICIDE and
THEFT.
Q: There was the jeepney. The jeepney was loaded with
people. Many passengers. Here comes XY&Z. X, Y, and Z
flagged down the jeepney. Thereafter, they boarded a
jeepney. Upon boarding the jeepney X, Y and Z armed
with knives – long knives, told the passengers.
“this is a holdup. Give us all your things. Otherwise,
those who will not give, we are going to kill you. We are
going to stab and kill people.” They placed their money
as well as their jewelries inside a bad provided by X. A
police officer on board his motorcycle took notice of
what was happening inside the said jeepney. And so, the
said police officer signaled the driver to stop, and then
thereafter, the driver stopped. The police officer went
to the jeepney and the police officers were trying to
arrest X, Y, and Z. However, Z took a gun from his
backpack and tried to shoot the police officer. There
was a struggle for possession of the gun between Z and
the police officer. In the course of the said struggle of
the said gun while in the hands of the police officer, the
gun fired hitting and killing Z. He died. The police
officers arrested X and Y. The police officer also took
the said loot taken by X and Y and brought it to the
police station as evidence. What crime/s is/are
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committed by X and Y? What case may be filed against
X and Y?
A: X and Y can be charged with ROBBERT WITH HOMICIDE.
They are conspirators for robbery with homicide.
Q: But isn't it that the victim killed was a fellow robber
Z? Isn't it that he was killed by the said police officer and
not by X and Y, therefore it should not be robbery with
homicide?
A: In the case of People v. Casabuena, the Supreme Court
said: NO. It is robbery with homicide. Under Article 294,
the law provides, “any person committing robbery with
violence against or intimidation of any person,”
Supreme Court said the word “any” is inclusive of
anyone including a robber. Therefore, even if it is a
robber who has been killed, it is still robbery with
homicide. The law does not distinguish any person.
Therefore, neither shall the court distinguish.
Q: Isn’t it that it was police officer who killed him?
A: Even if it was the police officer who resort to kill him in
the course of the struggle, when the police officer was trying
to arrest the said robbers, still, it is robbery with homicide
against X and Y. Reason is, the law provides, “any person
committing robbery with violence against or intimidation of
any person shall be punished by regulation perpetua to
death when by reason or on occasion of the said robbery,
homicide is committed. The law does not state who shall
commit the homicide. Therefore, any person can
commit the homicide in the course of the said act of
robbery. Hence, X and Y, according to the SC, should be held
liable for robbery with homicide.
They were convicted. But look at the dissenting opinion
coming from JUSTICE CAGUIOA. He does not agree. The
ponente was UST's very own former Solicitor-General,
Justice Lazaro-Javier. Justice Caguioa doesn't agree. He
has a dissenting opinion. When the law is clear, applied
the law. According to him, the law is very clear. It is
necessary that the person who committed the act of
killing must be the robbers. Any person committing
robbery with violence against, or intimidation of any person
shall be punished with reclusion perpetua to death when by
reason. Therefore, the person committing the robbery must
be also the person committing the act of killing. That was
his dissenting opinion. But of course, majority wins. And it's
robbery with homicide against the two accused. But he has
a point and I think a better point. BAKIT MO IPAPASAGOT
SA ROBBER E HINDI NAMAN SILA ANG PUMATAY DOON SA
MAGNANAKAW? He has a better point but majority wins.
Let's see. Remember, si Justice Leonen niyo, your Bar chair,
mahilig siya mag-dissent. Because the dissenting opinion
now would be the majority opinion later. Usually, ganon ang
tendency. Ang dissenting opinion, pagdaan ng panahon, siya
na ang majority opinion. Perhaps later on, that dissenting
opinion of J. CAGUIOA may overturn this decision because I
believe he has a better point than that of decision of SC. It
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would be so unfair for the robbers to be answerable for the
death of a fellow robber when they didn't do anything.
Q: In the same problem, there was this jeepney. The
jeepney was full of passengers. Here comes X Y and Z. X,
Y, and Z boarded a jeepney. X, Y, and Z told the
passengers, “this is a hold up. Hand in all your
belongings/valuables.” However, before the
passengers were able to place all their personal
belongings inside the bag provided by X, Y, and Z, here
comes police officer W. Police officer W tried to arrest
X, Y and Z. Z pulled out a gun from his backpack and
tried to shoot the police officer. There was a struggle for
the possession of the gun between Z, the one of the hold-
uppers and the police officer. In the course thereof,
while said gun was in possession of the police. It fired
repeatedly hitting and killing Z. Thereafter, police
officer W arrested X and Y. Are X and Y liable for
attempted robbery with homicide?
A: This time, NO. if you will look at the phraseology of Article
294 and Article 297, they differ. Under Article 297, if by
reason or on occasion of attempted or frustrated
robbery, a crime of homicide is committed, the law used
phrase, “the person guilty of such offenses.” Therefore,
under Article 297, the law expressly requires that the
person guilty of the attempted robbery must also be the
one guilty of the homicide or killing because the person
guilty of such offenses - attempted robbery and homicide.
Otherwise, it will not be the special complex crime of
attempted robbery with homicide. So, in this case since it
was a mere attempted robbery, in the course thereof, Z was
killed, since X&Y were not responsible for the said of killing
their fellow robber Z, they could not be held liable for the
special complex crime of attempted robbery with homicide
under article 297. They can be liable only for ATTEMPTED
ROBBER.
Q: ABCD&E went to the House of W. They announced to
W’s family, “we are not here to hurt you. Give us your
cash. Give us your jewelries. We will leave you in peace.
We only needed money.” So, the wife volunteered to
give the money all that they have. The wife went
upstairs. X followed. When they went downstairs, A told
BCD&E, “you may have all that cash. Let us go.” So, they
left. What crime/s is/are committed by A, B, C, D and E.
A: A B C D and E are liable for ROBBERY IN BAND. Under
Article 296. When robbery is committed by more than three
armed malefactors, they shall be liable for robbery in band.
Here, we have five armed malefactors - ABCDE. Therefore,
they are liable for robbery in band.
Q: Let us add facts. ABCD&E barged inside the house of
W. ABCD&E armed with armalites, “give us your cash
and valuables. We are not going to hurt anyone of you.
We only needed cash.” The wife volunteered to get the
cash. The wife went upstairs. BCD&E were downstairs
pointing their guns at W, the husband, and their three
children. The wife went upstairs. A followed the wife.
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After the wife had given the cash and the valuables to A,
A had carnal knowledge of the wife. He repeatedly
stabbed the wife, boxed the wife, and then thereafter,
had carnal knowledge of the wife. The wife was
shouting begging. W could hear his wife upstairs being
raped. W wanted to get up and help the wife. However,
BCD&E were pointing the guns. After the rape, they all
left. What crime/s is/are committed by ABCD&E?
A: ABCD&E are liable for the special complex crime of
ROBBERY WITH RAPE. There is no such crime as robbery
in band with rape. The law never complexed yet. The
crime committed is robbery with rape. And that it was
committed by a band, it'll only be an aggravating
circumstance. While only A raped the woman, because
they said act of rape was within the knowledge of BCD, they
heard the cries of the wife but they did not do anything in
order to help the said wife. Therefore, they are also liable
for the special complex crime of robbery with rape.
Q: Let us change facts. So, ABCD&E went to the House of
W. “We're just here to get your cash.” The wife
volunteered to go upstairs to get the cash. A followed.
BCD&E were pointing the guns to W and his children
downstairs. Upstairs, after the woman had given the
cash and the jewelries to A, A immediately covered her
mouth so that she would not be able to shout. No matter
how hard she tried, no voice would come out. Her
mouth was covered. And then thereafter, the man had
carnal knowledge. No voice would come out. She could
not ask for help. Her mouth was covered. After doing it,
A went downstairs. They left together with the loot.
What crime/s is/are committed by ABCD&E?
A: A is liable for the special complex crime of ROBBERY
WITH RAPE. BCD&E are liable for ROBBERY IN BAND under
Article 296. BCD&E cannot be held as conspirators for the
special complex crime of robbery with rape because they
lack knowledge that A raped the victim upstairs. Therefore,
since they didn't know that the victim was raped, they were
not at the scene, they were not given the opportunity to
prevent the consummation of the crime, hence, they can be
held liable only for robbery in band while A should be held
liable for robbery with rape – a special complex crime.
Q: Let us add facts. In the last problem, the said man, A
raped the wife. The wife couldn't ask for help because
her mouth was covered. Thereafter, A went downstairs.
When A went downstairs, he told BCD&E, “let’s go. We
have the cash and jewelries.” But before leaving the
door, A told BCD&E, they saw our faces. We might be
reported. At A’s signal, all of them repeatedly fired at W
and his children. They even went upstairs and also fired
at the wife. What crime/crimes is/are committed by
ABCD&E?
A: They are liable for a special complex crime, the composite
crime, the single indivisible offense of ROBBERY WITH
HOMICIDE. This time, the rape is already absorbed. This
time, robbery with homicide because in the course of the
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commission of the robbery, ABCD&E killed W and the
members of his family.
ARTICLE 299. ROBBERY IN AN INHABITED HOUSE OR
PUBLIC BUILDING OR EDIFICE DEOTED TO WORSHIP
3 ways of committing robbery with use of force upon
things:
1. When a person enters the dwelling, house, public
building or edifice devoted to worship where
personal property is taken through:
a. An opening not intended for entrance or
egress;
b. By breaking any wall, roof, or floor or breaking
any door or window;
c. By using false keys, picklocks or similar tools;
or
d. By using any fictitious name or pretending the
exercise of public authority,
2. When the offender manages to enter said inhabited
place, dwelling, public place or place dedicated to
religious worship without any unlawful entry, or is
an insider, and once inside, he used force in
opening in order to:
a. Break doors, wardrobes, chests, or any other
kind of locked or sealed furniture or receptacle
3. When the offender manages to enter said inhabited
place, dwelling, public place, or place dedicated to
religious worship without any unlawful entry, once
inside he took the sealed receptacle outside to be
opened or forced open.
Under Article 299, there is the other kind of robbery that is
robbery by use of force upon things.
Under robber by use of force upon things is punished
under Article 299 and under Article 302.
Article 299 – ROBBERY IN AN INHABITED HOUSE,
PUBLIC BUILDING OR EDIFICE DEVOTED FOR
WORSHIP.
Article 302 – ROBBERY IN A PRIVATE BUILDING OR AN
UNIHABITED PLACE.
But these are both robbery with use of force upon
things. They only differ in the place where the robbery
was committed. In. Art. 299, it is inhabited house. It is
public building. It is edifice devoted to worship. In Art. 302,
it is a private building. It is uninhabited place. However, the
use of force upon things are just the same and they are:
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1ST - whenever the offender entered the premises
of another through any means where personal
property was taken through any of the following
means:
(1) through an opening not intended for entrance
or egress;
(2) by breaking any wall, roof, floor, door, window
by using pick locks
(3) disguise;
(4) and by using a fictitious name or simulating
public authority.
Second - when the offender was able to enter the
premises of another without use of unlawful entry,
or when the offender is an insider, and once inside,
he employed force and violence by breaking any
door, wardrobe, chest or any clothes or sealed
receptacle.
3RD - when the offender was able to enter the
premises of another without use of unlawful entry.
Once inside, he did not employ force in order to
break open any closed or sealed chest or
receptacles. Instead, he brought outside his closed
or sealed receptacle.
In all these instances, the offenders are liable for the
crime of robbery either depending on the place - either
under article 299 or article 302.
Supreme Court said, outside these three instances the
crime committed is THEFT.
FIRST ACT: Under the first act, what makes it robbery by
use of force upon things is the element of unlawful entry.
The entry was done through any means not intended for
entry.
SECOND ACT: Under the second act, what makes this
robbery by use of force upon things is the employment of
force and violence in breaking a closed door, wardrobe,
chest.
THIRD ACT: Under the third act, what makes this robbery
by using for upon things is the act of the offender of
bringing outside the closed or sealed receptacle or
chest because outside forces to be employed in order to
take the things inside this closed or sealed receptacle or
chest.
Q: X, needing money, entered the house of Y. He entered
the house of Y, look around, “where can I enter?” and he
saw a small window on the kitchen. He forcibly lifted it
up, tried to fit himself inside. Once inside, it took as
much valuables as possible and then thereafter, left.
What crime is committed by X?
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A: X is liable for ROBBERY BY USE OF FORCE UPON
THINGS (RUFT) under article 299 because what he entered
into is an inhabited house or dwelling. It is robbery by use
of force upon things under the first act because the said
entry was done through unlawful entry. He entered through
a window not intended for opening. Therefore, he is liable
for RUFT under article 299.
Q: Let us add facts. So, he entered wanting to get
valuables inside the house. He entered by passing
through the small window in the kitchen. Once inside,
he took whatever valuables he could. He got out. Later,
however, he was arrested. Upon his arrest, the police
officers took all the things inside his backpack and
there, they saw the cash and the jewelries they took
from the from the house of Y. They also saw inside the
backpack of X a picklock which is designed to commit
robbery. What crime/s should be filed against X?
A: X should be charged of two (2) crimes – RUFT under
Article 299 because of his unlawful entry and ILLEGAL
POSSESSION OF PICKLOCKS under Article 304. He was
found in possession of it left which is designed to use for
robbery. Therefore, he is liable for a separate and distinct
charge of Article 304.
Q: Let us change facts. X wanted to rob the house of Y to
gain money. He went at the front door. It was locked. He
could not open it. He took out the picklock from his
backpack and open the front door with the use of the
picklock, and by reason thereof, the front door was
opened, gained entry, took valuables inside, left the
place but was later arrested. When these things were
recovered by the police officers, the police officers
found the valuables that he took from the house of Y, as
well as the picklock. What crime/s should be filed
against X?
A: X should be charged with only one crime – RUFT under
Article 299, that is by unlawful entry by using a picklock.
There is no separate and distinct charge for violation of
article 304 for illegal possession of picklock because the
very means X used to gain entry in the house of Y was to
open the front door by means of picklock. Since the picklock
was the very means he used to gain an unlawful entry, his
possession of the same will no longer constitute a separate
and distinct charge.
Q: XY&Z, they went to the house of an overseas Filipino
worker who just arrived here in the Philippines. And so,
XY&Z went to the place looking for W, the overseas
Filipino worker. But the sister said, she's not here she
went to POWAYA (?). XY&Z said, “but we are members
of the POWAYA(?) and we come here in order to ask
certain information from her.” So, the sisters, “oh you
are members of the POWAYA. Come inside!” And so,
XY&Z were allowed to get inside. Once inside, however,
X said he wanted to make a phone call. Later, he wanted
to go to the restroom until later, XY&Z held on the sister
Criminal Law Review
Prosecutor Victoria C. Garcia
and tied the sister. After tying the sister, they ransacked
the house. What crime/crimes had been committed by
XY&Z?
A: XY and Z are liable for the complex crime of ROBBERY
WITH VIOLENCE AGAINST OR INTIMIDATION (RVAI)
under Article 294 and RUFT under Article 299.
In the case of People v. Fransdilla, in the case of People
v. Napolis, the Supreme Court said they have to be
complexed.
Q: How did XY&Z committed robbery?
A: First, they use RUFT under Article 299 by simulating
public authority pretending to be members of POWAYA.
Therefore, it is a form of robbery by use of force upon things
under Article 299 by pretending to be public officers of
POWAYA.
And then once inside, they tied and they told on the sister
and tied her, that is robbery by means of intimidation.
So, they committed both.
Q: However, usually, if you notice in the problem that I
gave earlier, the offender entered the house, or so he
entered the house by the first problem when we were
discussing under Article 294, he entered the house by
passing through the window. Once inside, he was taking
valuables. The owner arrived and so he shot the owner.
He shot the wife, right? What is the crime committed?
A: The crime committed is ROBBERY WITH HOMICIDE
right? Although there was force employed in entering, the
crime committed is robbery with homicide.
In this case, RUFT under Article to 299 is simply
absorbed and that is the general rule. RUFT, which is
lesser than RVAI of persons, is simply absorbed RVAI of
persons because RVAI is greater than that of RUFT by
simply using force in entering. So, it is always absorbed.
EXCEPT, in the case of People v. Fransdilla and similar
cases. Here, the crime committed amounting to RVAI of
persons is only simple robbery. It only amounts to
intimidation. the only tied sister, and even slapped the
sister, only slight physical injuries wherein the penalty is
only prision mayor, lower in penalty than that of RUFT
which is penalized by reclusion temporal. Therefore, the
Supreme Court said, you have to complex it so that the
greater penalty would be imposed on the said offender
because if you complex it under article 48, the penalty for
the most serious crime shall be the one imposed in its
maximum. So, in that case, the crime committed would be
robbery with violence against or intimidation of person
complex with robbery by use of force upon things under
article 299.
Q: Brother A was in need of money. Brother A and B are
living in the same house. They are living in the same
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house. Brother A was a very successful businessman.
Brother B was a very successful gambler. He is always
in the casino and his loans and indebtedness are left
and right. One time, the person on whom his loan has
already amounted to 20 million went up to him
together with all his men and told him, “you pay me half
today. If not, you know what I will do to you.” Brother B
was so afraid. He went to the house. He was looking for
his brother – brother A. He could not locate brother A.
He went inside the room look brother A, calling for A
but he was not there. He looked around whatever
things he could take from his successful brother. He
could not find anything. He saw the cabinet. It was so
locked. And so, he axed the cabinet to open the lock, and
there he took five watches. He also took five rings and
other valuables of his brother, sold the same and gave
all the proceeds to the man on whom he obtained loan.
What crime/s is/are committed by brother B? Is
brother B both criminally and civilly liable?
A: Brother B is liable for RUFT under the second act. Brother
B is an insider and by means of force and violence, he broke,
open the lock of the cabinet of his brother in order to take,
with intent to gain, the watches, the rings and other
personal belongings of his brother. Therefore, he is liable
for RUFT.
Since the crime committed by brother B is RUFT, he is both
criminally and civilly liable.
Q: In the same problem, when brother B was looking for
his brother A, he went inside the bedroom and there is
lying on top of the bed two Rolex watches of his brother
and one gold ring. It took all of this, sold and he gave the
passage to the man whom he was indebted. What
crime/s had been committed by brother B? Is brother B
both criminally and civilly liable?
A: Brother B is liable for THEFT. It is theft because in taking
the watches, in taking the rings, there was no violence or
force employed. It was just there lying on the bed and so, B
took it. Hence, the crime committed is theft. And since the
crime committed is theft, brother B is absolved of criminal
lability, he's liable only civilly by virtue of Article 332.
Under Article 332, no criminal liability but only civil
liability shall result from the commission of the crime
of crime of theft, estafa, or malicious mischief between
and among the following:
xxx
(3) brothers and sisters and brothers in law and sisters
in law if they are living together.
A and B are brothers, and they are living together in the
same house. Therefore, brother B, in taking the jewelries of
brother A, would be liable only civilly but not criminally
liable.
Q: X and Y are the best of friends. They attended a
birthday party of a common friend. The party ended
Criminal Law Review
Prosecutor Victoria C. Garcia
past 12:00 o'clock. X told Y, “your house is very far! Why
don't you just sleep in my house?” And so, X said, “yes!
is it alright if I would just sleep in your house?” and the
other friend said, “yes of course! I'm inviting you to
sleep in our house.” So, X&Y went to the house of X.
Upon reaching the house of X, X brought Y to her
bedroom. X told Y, “Have a seat. What drinks do you
want?” Y said, “only coffee.” X said “OK. I'll go to the
dining area. I'll prepare our coffee. You follow me.” X
left Y inside her bedroom. While Y was inside the
bedroom of X, she was about to follow X at the dining
area when Y took notice of a big jewelry box. Y went to
the said jewelry box. He tried to open it. It was locked.
It was sealed. She lifted it up. It was heavy. Therefore, it
would be filled with jewelries. Y placed the said jewelry
box inside her bag and left without asking permission
from her friend X. What crime/s is/are committed by
friend Y?
A: Friend Y is liable for RUFT under Article 299 third act.
She was able to gain entry inside the house of her friend X
without the use of unlawful entry. Once inside, she did not
employ force and violence to break open anything.
However, he took this closed or sealed receptacles, in this
case jewelry box outside. Outside force has to be employed
in order to open and get the jewelries inside. Therefore, Y is
liable for RUFT under Article 299.
Q: The UBELT was already in silence. It was already two
o'clock early morning. No people around. Students in
their dormitories were already fast asleep. Total
silence in the same area. Here comes X. X went to this
close stall. It is rice in a box stall. He broke lock, entered
inside, took anything that he could take, took
everything valuable that he could sell. Thereafter, he
left. The following morning, someone inform the police
authorities that the said stall had been broken open.
And so, the police officers went there. They saw that it
was ransacked, missing everything. They informed the
owner. The owner arrived and the owner said,
“everything was gone.” They looked at the footage of the
CCTV and they discovered it was X. X was arrested.
What crime/crimes is/are committed by X?
A: X is liable for RUFT under the first act under Article 302.
Supreme Court said this is considered to be a private
building. This is considered to be an uninhabited place
because at the time everyone, people were gone. Everyone
was fast asleep. Therefore, it is still robbery by use of force
upon things under the first act by gaining in entry through
and unlawful means. Unlawful means that is breaking the
lock of the door. However, it is not under Art. 299. It is under
Article 302.
Article 306: BRIGANDAGE
Under Article 306, it is committed by at least 4 armed
men for the purposes of:
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only that, but they also took valuables from those on the
1. committing robbery in the highway; front seat passengers. What crime/s had been
2. kidnapping persons for the purpose of extortion or committed by ABCDE?
ransom; A: They are liable for BRIGANDAGE or HIGHWAY ROBBERY
3. for any other purpose to be attained by means of under PD532.
force and violence.

Q: How is Brigandage under Art 306 different from PD 532

Brigandage under PD 532 or the Anti-Highway robbery THE ANTI-HIGHWAY ROBBERY LAW OF 1974
law of 1970?
In PD 532, brigandage is defined as the seizure of any
Q: In a welcome party to X who has just come from person for ransom, extortion, or other unlawful purposes,
abroad. Let’s say Dubai. After working in Dubai as civil or the taking away of property of another by means of
engineer for 30 years, he came back to the Philippines violence against or intimidation of persons of force upon
and there was a big celebration. X is now a very rich things or other unlawful means, committed by any person
man and he decided to stay in the Philippines. In the on any Philippine highway.
welcome party to X, all people were invited, people in
the neighborhood, there were people therein whom X The following are the distinctions:
did not even know even know. He was having a drinking
spree with these five people ABCD&E. And since he was HIGHWAY ROBBERY or HIGHWAY ROBBERY or
already a little bit drunk, he began telling stories, his BRIGANDAGE under BRIGANDAGE under PD
work in Dubai, his hardship, the man he saved, and he ART. 306 of the RPC 522
informed these five (5) men that he will be withdrawing The law requires there The law doesn't require
money tomorrow because he will be putting up a new must be at least four (4) any number of men.
business. According to him, he told these men, “I'm armed malefactors.
going to withdraw money tomorrow. I am withdrawing The mere formation of a There must be an actual
2,000,000 cash to put up a new business.” The following band of robbers to commit commission of robbery on
morning, X was on his way to the bank. So, he boarded highway robbery will the PH highway for the
his car. But unknown to him, he was being followed by already give rise a crime. crime to arise.
a van. Inside the said van were ABCD&E - the persons
whom he had a drinking spree a night before and whom There is a predetermined There is no
he divulged that he would be withdrawing money from or preconceived or predetermined,
the bank. Unknown to him, these men were following particular victim. preconceived or particular
him secretly on board the van. They saw him when to victim. It is committed
BPI bar at the far distance. They waited for him. They indiscriminately against
saw him get out of the said bank with a bag. Thereafter, any person who would
while he was passing by the highway on his way home, pass the Philippine
the van followed him until the van frisked him in order highway.
to overtake the said car of X. And then thereafter, they
Any person who aids, Any personal who aids,
stop in order to catch X. X had no recourse but to stop.
abets or protects the abets or protects, or takes
ABCD&E then alighted from the van and knifepoint,
brigands or takes possessions of the
they took the money withdrawn by X from the bank. possession of the proceeds proceeds of brigandage
What crime/crimes had been committed by ABCDE? of brigandage would be would be liable as an
A: ABCDE are liable for HIGHWAY ROBBERY OR liable separate and accomplice under PD 53.
BRIGANDAGE under Article 306 of the RPC. distinct under article 307
Q: ABCDE has formed this band of robbers. For more
than a year, they had been committing highway robbery
In the first problem, ABCDE formed this band of robbers in
in the highway of Pampanga. So, any vehicle that will
order to commit robbery against X. They have a
passed by, that will be chanced upon, they would
preconceived victim because X diverged to them that he
commit robbery they would rob these passengers or
would be withdrawing money from the bank. Whereas in
drivers in the said highway of Pampanga. They had
the second problem, they have been committing highway
been doing that for a year. One time, they again needed
robbery indiscriminately. No particular victim. Any person
money. And again, ABCDE, in need of money, positioned
who would pass by the Philippine highway can be the
themselves along that particular area highway in
subject of robbery.
Pampanga, flagged down the first vehicle that passed
by. It happened to be a bus. They entered the bus. At
knifepoint, they took the earnings of the said bus. Not
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ARTICLE 308 - THEFT
Art. 308. Who are liable for theft. —
Theft is committed by any person who, with intent to gain
but without violence against or intimidation of persons nor
force upon things, shall take personal property of another
without the latter's consent.
Theft is likewise committed by:
1. Any person who, having found lost property, shall
fail to deliver the same to the local authorities or to
its owner;
2. Any person who, after having maliciously damaged
the property of another, shall remove or make use
of the fruits or object of the damage caused by him;
and
3. Any person who shall enter an enclosed estate or a
field where trespass is forbidden or which belongs
to another and without the consent of its owner,
shall hunt or fish upon the same or shall gather
cereals, or other forest or farm products.
Theft is committed by any person who with intent to gain
shall take the personal property belonging to another
without the consent of the owner, without violence against
or intimidation of persons, and without use of force upon
things.
In case of theft, just robbery there is the actual taking of
personal property belonging to another. Thus, an act of
taking must be done with intent to gain. However, unlike
robbery, taking must be done without violence against or
intimidation of persons, and without use of force upon
things.
So, in this case, there must be no use of force upon things in
case of theft.
Q: X was walking. Here comes Y. Ys suddenly grabbed
the necklace of X and ran away. What crime is
committed by Y?
A: Y is liable of THEFT. The Supreme Court said the word
“grab” or “snatch” (Y grabbed the necklace of X, Y snatched
the necklace of X) doesn't mean that there was violence
employed. The word “grab/snatch” only means suddenness
of the act of taking. It describes that the act of taking was
done suddenly. However, it doesn't necessarily mean that
there was force or that there was violence employed. So, in
this case, it is merely theft.
Q: X was walking. Y try to grab the necklace. It wasn’t
pulled. X put up a fight. Y boxed X. X fell on the ground.
Y again grabbed the necklace and left. What crime is
committed?
A: ROBBERY. There was already force employed. He boxed
X. Therefore, it is now already robbery under Art. 294 under
Criminal Law Review
Prosecutor Victoria C. Garcia
the fifth act by simple intimidation or by the slight physical
injuries. Only simple robbery.
Under Article 308, THEFT is committed not only by taking
the personal property of another without consent of the
owner with intent to gain without violence against
intimidation of persons.
(1) Theft is also committed by any person who having found
lost property shall fail to deliver the same to the owner
thereof of authorities.
(2) Likewise, it is committed by any person who after
having deliberately caused damage in the property of
another, should remove or make use of the fruits or object
of the damage caused by.
(3) It is committed by any person who shall enter the fence
estate or field where trespass is forbidden, or which belongs
to another. And upon entering the same, shall hunt or fish
upon the same, or shall cereals or any other forestry farm
products.
Q: X was opening a vacant house. He looked at the
ground. There was a wallet. He picked up the wallet. It
contains 500 pesos. He did not anymore return the
wallet on the man. He took possession of the said
wallet.
A: X is liable for the crime of THEFT.
Q: X is a taxi driver. His duty was 6:00 o'clock morning
up to 6:00 o'clock in the next morning. So, 24 hours. So,
it was six o'clock the following morning. X went to the
house and parked the taxi in the garage. It is the habit
of X that whenever he would park his taxi, before he
would take a rest or eat breakfast, he would first clean
his taxi. He wants the taxi cleaned before he relaxed.
And so, he cleaned the taxi. As he was cleaning the taxi,
he saw, on the floor of the taxi at the back seat, he saw a
lady’s wallet. He picked it up and went inside the house,
called his wife, “look! I found a wallet inside my taxi.
“They both opened it. They found inside 10,000 pesos,
the credit cards, and ID of the said owner. The owner of
the wallet seems to be a bank employee. There was the
ID of the owner, BDO ID. There was the name or
address, also her professional cards ID because it says
there that she is an accountant. Everything was there:
the address, the name of the woman, etc. However, it
contains 10,000 pesos. The wife said, “let us not return
it. It is a gift from God.” Both the husband and the wife
did not return the wallet. What crime is committed by
the driver?
A: The taxi driver is liable for Theft. Having found lost
property. He failed to deliver the same to the owner or to
the authorities. He could deliver the same to the owner.
There was the BDO branch where she was working. There
was the ID which contains her address. But he deliberately
kept the wallet for their own personal gain. Therefore, he’s
liable for the crime of theft.
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Q: X, upon finding the said wallet on the floorings of his
taxi, immediately rushed outside the house and went to
the nearest police station. X is an honest man and very
honest driver. And so, X went to police officer and said,
“I found this wallet inside my taxi. I have no work. I have
no drive until the next day. So, I am giving you this
wallet so that you will be the one in charged with the
said wallet. I have to leave right now.” X left. The police
officer, opened the wallet and the police officer found
10,000 pesos, the ID, the work ID the office, the
professional ID but the police officer became interested
in the wallet and the police officer did not return the
wallet. What crime is committed by the said police
officer?
A: the police officer is liable for Theft. Although, X, the driver
was the finder of the wallet, he was said to be the finder in.
When he gave it to the police officer, the police officer
becomes the finder. The obligation of X, the driver, the
finder in fact, to return the wallet to the owner, becomes
now the obligation of the finder in law - the police officer.
So, when the police officer failed to deliver it, to give it to the
said owner, the police officers become liable for theft. Under
Article 308.
Q: X was mad at Y. He wanted to get even at y. Armed
with a bolo, X, thereafter, hacked the bamboo fence of Y
on the left side of their house. The bamboo fence was
just put there to be defense of the house of X but Y
hacked it and cut it into pieces and then thereafter Y
gathered all of this. Thereafter, he brought it home.
What crime/s is/are committed by the side offender?
A: First, he is liable for malicious mischief. He deliberately
caused damage on the fence. After he deliberately caused
damage on the fence of X. He gathered and make use of the
fruits or object of the damage caused. This fence made of
bamboo that it turned into the pieces, he gathered it and
brought it home for his own personal use. Therefore, he
becomes liable for the crime of death.
ARTICLE 310 - QUALIFIED THEFT
Theft is qualified in the following instances:
1. If theft is committed by a domestic servant;
2. If committed with grave abuse of confidence;
3. If the property stolen is a (a) motor vehicle, (b) mail
matter, or (c) large cattle;
4. If the property stolen consists of coconuts taken
from the premises of the plantation
5. If the property stolen is taken from a fishpond or
fishery;
6. If property taken on the occasion of fire,
earthquake, typhoon, volcanic eruption, or any
other calamity, vehicular accident or civil
disturbance.
Criminal Law Review
Prosecutor Victoria C. Garcia
If their offender who takes the personal property of the
master is the domestic servant of the said master, the crime
committed is immediately qualified. No need to prove the
presence of grave abuse of confidence According to the
Supreme Court, the domestic servant is separated from
grave abuse of confidence under Article 310 by the
disjunctive word “or.” Therefore, they are separate and
distinct from each other. The moment the offender is a
domestic servant, all that the prosecution has to prove is
that he is indeed in domestic servant. Such will suffice to
bring about the crime of qualified theft. No need to prove
cream abuse of confidence.
Q: X has been working as the domestic servant in the
house of the master for a period of more than two years.
One night, the master - the husband and the wife, and
the members of the family were all out. They are
attending a dinner party. X was left alone. Because she
was trusted, she was informed offered the lady of the
house, would keep the key to the vault. Because she
trusted X so much, and so that in case of emergency, X
would be able to save these valuables. When the master
was out, X went outside, he called her boyfriend. The
boyfriend arrived. Thereafter, she, the boyfriend and
the newly hired security guard of the house talk to each
other. After talking, X went back to the house. Opening
the door. X allowed her boyfriend and the security
guard to enter. They went inside the master’s bedroom.
X took the key from the place where it was hidden. With
the use of the said key, they were able to open the said
vault. After that, they took everything therein – the
jewelries and the cash and they left. What are the
crimes committed by X and by the boyfriend, as well as
the security guard?
A: X would be liable for QUALIFIED THEFT. It is qualified
by her being a domestic servant. The boyfriend is liable for
SIMPLE THEFT under Article 308. None of the qualifying
circumstances in Article 310 attended the act of stealing. On
the part of the security guard, he is liable for QUALIFIED
THEFT UNDER THE SECOND ACT because his act of taking
the jewelries and cash was attended by grave abuse of
confidence.
There is grave abuse of confidence when there is a
relationship of guardianship, dependency, and vigilance
between the offender and the offended party.
In this case the security guard was hired by the owner of the
house to protect their house, to protect their belongings, yet
he was the one who took the valuables inside. There was a
relationship of guardianship, independence and vigilance
between the guard and the owner of the house. The crime
was committed with grave abuse of confidence. He is liable
for QUALIFIED THEFT.
Q: X was wanted to answer the call of nature. He was
driving when suddenly he needed to answer the call of
nature. He parked his car near the sidewalk. He was in
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a hurry. He left the door open. The key was inside. He
went behind the tree. While he was peeing behind the
tree, he did not notice that there was a person by the
name of Y sitting on a bench. The door was opened. The
said owner was behind a tree. Y entered the car. There
was the key. He took away the car. What crime was
committed by Y?
A: Y is liable of CARNAPPING. Whenever the thing taken is a
car, whenever the thing taken is a motorvehicle, it is no
longer deaf it is no longer qualified theft. It is carnapping.
Whenever the thing taken by the offender is a motorvehicle,
it is clear now being punished under RA 10883.
Q: Same problem. X parked his car. He needed to
answer the call of nature. He was in hurry. He left door
open. The key was inside. He went behind a tree. Y, after
seeing the situation, went inside the car. He was about
to take away the car when suddenly X notice Y. X went
to the car and he told, “get out of my car! get out of my
car!” However, Y repeatedly boxed and kicked X. X fell
on the ground. Y took away the car. What crime is
committed by Y?
A: Y is liable of CARNAPPING.
Q: Same problem. X placed the car on the sidewalk. He
went behind the tree. Y entered the car. He was about
to take away the car. Here comes the owner, “X get out
of my car!” However, Y was armed with a knife. Y
repeatedly stabbed X fell on the ground. Y got all and
took away the same car. X died. What kind crime/s
is/are committed by Y?
A: He is liable of CARNAPPING.
Do not say qualified carnapping. Do not say carnapping
with homicide. That is possible in the old law under RA
6539 but not under the new law under RA 10883
because under RA 10883, the law provides that when
the owner or the driver or the occupant of the
carnapped motor vehicle is killed or dies as a
consequence of the said carnapping, or is raped, the
penalty is LIFE IMPRISONMENT. The penalty now is life
imprisonment. Before under RA 6539, before the penalty is
RECLUSION PERPETUA TO DEATH, of the same
nomenclature as the RPC. Hence, you can complex it or you
can say qualified carnapping. Now, NO. Because now the
penalty is life imprisonment. So, it is still carnapping.
Violation of our RA 10883 but the penalty now would be life
imprisonment.
RA 6539
ANTI-CARNAPPING ACT
Carnapping- is the taking with intent to gain, of motor
vehicle belonging to another without the consent of the
latter, or by means of violence against or intimidation of
persons, or by use of force upon things.
Criminal Law Review
Prosecutor Victoria C. Garcia
Elements:
1. Actual taking of motor vehicle;
2. The vehicle belongs to another;
3. There is intent to gain in the taking of the vehicle of
another; and
4. Said taking is taking without the consent of the
owner or by means of violence or intimidation or
by means of force upon things.
The penalty increases when carnapping is committed
without the consent of the owner. Without violence against
or intimidation of persons, the penalty is 20 years and one
day to 30 years. If committed by employing force and
violence, the penalty is 30 years and one day to 40 years.
But, if in the course of the commission of the carnapping, the
owner, the driver, or the occupant of carnapped motor
vehicle is killed or dies as a consequence of the said
carnapping, the penalty now is LIFE IMPRISONMENT. So,
you call it only one designation and that is carnapping. They
only differ in the penalty to be imposed. Note that it is
necessary the person who is killed is the owner, driver
or occupant of the carnapped motor vehicle. The law
says the carnapped motor vehicle. Therefore, if the one who
is killed, if the one who is raped, is not the owner, the driver
or the occupant the carnapped motor vehicle, it will give
rise to a separate and distinct charge. You cannot just
simply be considered as carnapping.
Q: X is the driver of couple Y& Z. The couple were to be
out for two weeks. They are going to attend a seminar
in Singapore. Y call the driver X. The driver has been
down for a period of two months. And the duty of driver
X is to bring the children to school, to wait for the
children, and to bring back the children back to the
house. So, his duty is the driver of the children. Before
Y&Z left the Philippines, before they left for Singapore,
they talk to X. Y talk to X, “we will be out for two weeks.
We have to attend a seminar required by our company.
Now, we need trust you to do your job. You have to bring
our three children to school. You have to wait for them,
and you have to bring them back to our house safely.
Please protect them. “Because of that, after Y&Z left, X
bring the children to school and fetching the children to
school.” That was Friday. After bringing the children
back home, X parked the car at the garage. X suddenly
took notice, “oh! there was this new car of my bossing.”
And so, he looked at the car. It was a new BMW sports
car. He looked around. He tried to open it. It was not
locked. It was open so he went inside. There was the
key. So, he went inside. With the use of the said key, he
drove the car. He passed by the house of his girlfriend,
“hi girlfriend! let's go for a road trip for at least two
days.” We will be back on Sunday. The girlfriend took
some things went, on the said car, and they went for
road trip. They came back Sunday evening. X dropped
the girlfriend to her house and then went back to the
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house at the master and parked the BMW sports car at
the garage of the master. Thereafter, he religiously
performs duty as the driver of the children. Two weeks
thereafter, Y&Z arrived. Y went to the garage to look at
his new sports car. He was shocked why were the cars
so dirty, “I haven't used this car. How come it was full of
mud?” And so, based on investigation, he discovered
that it was his driver X. He was so mad. The father filed
a case of carnapping against driver. Is driver x LIABLE
OF CARNAPPING UNDER ra 10883?
A: There was actual taking of motor vehicle. Driver X
actually took the motor vehicle, the BMW sports car, of his
master. The said act of taking of the said motor vehicle must
belong to another. It belongs to the master. The said act of
taking was done with intent to gain.
Q: Was their intent to gain? X said “NO. I
returned it.”
YES. No matter how short span of time during the time he
took the said motor vehicle to the time that he returned it,
he enjoyed it. Therefore, he gained from taking the said
motor vehicle. He did not do it only with intent to gain. He
obtained gain in using the said vehicle. Therefore, the third
element is satisfied. And, the last element, the said act of
taking was done without the consent of the owner.
Thereafter, X, driver, is liable for carnapping under RA
10883.
PD 533
ANTI-CATTLE RUSTLING LAW
Cattle Rustling - defined as the taking away by any means,
method or scheme, without the consent of the
owner/raiser, of any large cattle whether or not for profit
or for gain, or whether committed with or without violence
against or intimidation of persons or force upon things. It
includes the killing of large cattle or taking it as a meat or
hide without the consent of the owner/raiser.
Large Cattle- shall include cow, carabao, horse, mule, ass,
or other domesticated member of the bovine family.
Goats are not large cattle.
Q: What if the farmer was already tired. It tied his
carabao on a mango tree fell asleep. Siesta. Suddenly
heard his carabao, very noisy. When he looked, he saw
that another farmer by the name of Y was taking his
carabao. He suddenly stood up and tried to stop Y from
taking his carabao. Y, however got mad and why hacked
the owner farmer. The owner farmer died. Y was able to
take away the carabao. What crime is committed by Y?
A: Y is liable for CATTLE RUSTLING VIOLATION of PD533.
Criminal Law Review
Prosecutor Victoria C. Garcia
If the thing taken is large cattle, it is no longer qualified
theft. It is cattle rustling.
Supreme Court said, cattle rustling is MALUM IN SE
because it is an amendment to ART. 310. Therefore,
when the thing taken is large cattle, the crime
committed is cattle rustling. The fact that Y killed the
owner of the said large cattle will not constitute a
separate and distinct charge of HOMICIDE. It will only
be cattle rustling because the said act of killing the
owner of the said large cattle is within the meaning of
violence employed in order to commit cattle rustling.
If the thing is taken on the occasion of a calamity, vehicular
accident, any other civil disturbance, the crime committed
would be QUALIFIED THEFT under Article 310.
If the thing taken is personal property, it is either ROBBERY
if there is violence or intimidation or use of force upon
things, or THEFT if there is no violence against or
intimidation of any person or use of force upon things.
If nothing taken is a real property, the crime committed is
violation of Article 312.
ARTICLE 312 - OCCUPATION OF REAL PROPERTY OR
USURPATION OF REAL RIGHTS IN PROPERTY
2 acts punished under Art 312:
1. Occupation of real property which is committed by
any person who by means of violence against or
intimidation shall occupy the real property of
another; and
2. Usurpation of real rights in property committed by
any person who by means of violence against or
intimidation shall usurp any real rights in property
of another person.
Under Article 312, the following acts are punished:
(1) by taking possession of real property belonging
to another
(2) by means of violence against or intimidation of
persons
OR
(3) by usurping real rights in property belonging to
another
(4) by means violence against or intimidation of
persons.
If the thing taken occupied or rights would that of
real property, the crime committed is violation of
Art. 312.
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Q: X and his family were among those displaced
families. When there was this dismantling of shanties in
the squatter area in Quezon City. By virtue of a court
order, wherein the owner of the property won, the
police officers went to the place and destroy the houses
of the people living in the said area. All the squatters
therein, including X and his family, have nowhere to go.
They were sad. They boarded a bus. They just don't
know where the bus was going. They just boarded until
the bus reached the final destination. The final
destination was the bus station in Laguna. They were
there in Laguna. They got off the bus. When suddenly
they took notice of this vacant piece of property. It was
fenced but the fence was only made of bamboo fence.
And then, they saw that it was filled with tall grasses or
bushes. It seems to be a neglected piece of land. X, his
wife and his 2 children, climbed over and went over the
fence. They have knives or bolos. They started to get rid
of the said brushes, to get rid of the said bushes, and
then they started gathering piece of wood. They wanted
to build a small place where they could build. Anyway,
this place seems to be neglected. With this tall grass, it
was indeed neglected. And so, they were trying to build
their house when suddenly here comes the guard. The
guard said, “what are you doing here? Did you not see
the sideboard - No trespassing! Private property. Do
not enter.” However, X said, “we just want to build.
Anyway, the owner is not using it. We just wanted to
occupy this place for the meantime. We have nowhere
to sleep. We have nowhere to go. Let us build our house
here.” The guard said, “No. You go to our barangay. You
cannot go here. However, X said, “No. We will stay here.”
But the guard said, “if you are going to stay here, I am
now going to report you to the police authorities. The
guard pick up his cell phone. He was making a call when
suddenly X hacked him at the back. The guard died.
Then thereafter, they continued building their piece of
property. After they built their small thing where they
could stay, they slept the night. What crime/crimes had
been committed by X?
A: X is liable for OCCUPATION OF REAL PROPERTY under
Art. 312.
Q: What about the fact that he killed the
security guard?
A: The act of killing the guard will not constitute a
separate and distinct charge of homicide because
the act of occupying the said real property was
done with violence against intimidation of persons,
and the act of killing the guard was within the
meaning of violence employed in order to occupy
the said real property. Therefore, in this case, it will
not constitute a separate and distinct charge.
There's only one crime - violation of Art. 312.
Q: Isn't it unfair?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: No. Because if you will look at the penalty, the penalty
will be the penalty equivalent to the damage that it caused.
The penalty will be equivalent to the crime committed. And
what is the crime? the killing a person. Therefore, the
penalty would be RECLUSION TEMPORAL PLUS THE
VALUE OF GAINING (?). So, although there's no separate
and distinct charge, perhaps, although the crime is
occupation of real property, the penalty is equivalent to the
said act of killing the security guard. Therefore, it is still
reclusion tenporal plus the value of gaining.
Q: Let us add facts. After they have already or they were
already built a very small house at least such a place to
sleep for the night, someone informed the authorities
what happened. In fact, the body of the security guard
was still there. They just covered it with grasses. The
police arrived. Here comes police officer W, “we heard
an incident.” And they took notice of the body of the said
security guard being covered with grasses. “What did
you do with him? You killed him.” X said, “Yes. We just
want to build a place to sleep but he objected. I have no
recourse but to kill him.” The police officer however
told X, “you get out of this place! You are trespassing.
You are under arrest. You kill this person and you're
occupying this property. You are under arrest.”
However, when the said police officer was trying to get
the handcuffs in order to place it on X, X again took his
bolo and then thereafter, X hacked the said police
officer. The said police officer died. What crime/crimes
is/are committed by X?
A: First, he committed OCCUPATION OF REAL PROPERTY
when he killed the said security guard in order to occupy
the real property belonging to the owner.
Second, he is liable for the death of the said police officer.
The said death that of the police officer can no longer be
absorbed by Article 312 because X and his family had
already occupied the real property when he killed the said
the police officer. The police officer is an agent of person in
authority performing his duty at the time of the killing.
Therefore, the crime committed is QUALIFIED DIRECT
ASAULT WITH HOMICIDE. It is qualified because X made
use of a weapon. The police officer was actually performing
his duty and it resorted to his death. It cannot be murder
because it happened at the spur of the moment.
So here X will be liable of two (2) crimes: Violation of Article
312 or OCCUPATION OF REAL PROPERTY and QUALIFIED
DIRECT ASSAULT WITH HOMICIDE insofar as the killing of
the police officer is concerned.
ARTICLE 311. THEFT OF THE PROPERTY OF NATIONAL
LIBRARY AND NATIONAL MUSEUM
The value of the property is immaterial because the law
prescribed the penalty of arresto mayor or fine or both.
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ARTICLE 313. ALTERING BOUNDARIES OR LANDMARK
— Any person who shall alter the boundary marks or
monuments of towns, provinces, or estates, or any other
marks intended to designate the boundaries of the same,
shall be punished by arresto menor or a fine not exceeding
100 pesos, or both.
ARTICLE 314. FRAUDULENT INSOLVENCY
— Any person who shall abscond with his property to the
prejudice of his creditors, shall suffer the penalty of prision
mayor, if he be a merchant and the penalty of prision
correccional in its maximum period to prision mayor in its
medium period, if he be not a merchant.
ARTICLE 315 – SWINDLING AND OTHER DECEITS
There are two elements of estafa common to all kinds
of estafa:
1. The offender defrauded another by reason of abuse
of confidence or by means of deceit.
a. Abuse of Confidence
b. Deceit
2. Damage or prejudice capable of pecuniary
estimation is caused to the offended party or to a
third person.
ESTAFA WITH UNFAITHFULNESS OR ABUSE OF
CONFIDENCE
a) By altering the substance, quantity, or quality or
anything of value which the offender shall deliver by
virtue of an obligation to do so, even though such
obligation be based on an immoral or illegal
consideration.
Q: X has a laboratory which manufactures quality
shabu. He would look buyers in the Internet. Buyer Y
tasted X’s shabu and found that indeed it is a premium
quality shabu. He paid 50 million to be delivered at the
end of the month together with the payment. After a
month, the transaction ensued, the payment was given
and Y tasted the shabu and found that it is again a
premium quality shabu. Y told his men to repack the
shabu. One of the men tasted the shabu and found out
that it is not good quality and it was also remarked by Y
to be of subpar quality. Y found out that X altered the
quality of the shabu before delivering it to Y. Would X
be held liable of Estafa?
Criminal Law Review
Prosecutor Victoria C. Garcia
A: Yes. Even if it is based on illegal or immoral
consideration, he would still be liable of Estafa under Article
315.
b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property
received by the offender in trust or on commission, or for
administration, or under any other obligation involving
the duty to make delivery of or to return the same, even
though such obligation be totally or partially
guaranteed by a bond; or by denying having received
such money, goods, or other property (ESTAFA THROUGH
MISAPPROPRIATION OR CONVERSION)
• The offender has delivered the money, goods, or
property. It is the obligation of the offender to
return the said money, goods or property however
he failed to do so, there was demand, and damage
caused to the offended party. When the offended
party had transferred to the offender money godos
of property, in trust or for administration, what it
transferred is both material and physical and
juridical possession.
• Physical possession – handed to him
• Juridical possession - is a possession in the
concept of an owner; it is a real right over the
property during the time that the property is in his
possession, he has better right even than that of the
owner of the said property
• If the transfer is only that of physical possession,
and the offender misappropriated, the crime would
be theft but not estafa.
Q: X has been selling jewelry. Y lost all businesses and
he needed to earn. Y decided to go to X and ask the latter
to be hired as seller of the jewelry by commission basis.
The condition would be that Y will sell the jewelry, he
will return the unsold jewelry after selling and then
give the earnings minus the commission. X agreed and
the jewelry costs 500,000 without the commission to be
returned after the month. After a month, none of the
jewelry were returned and, as well as the earnings. Y
made a demand. X made a phone call, and Y agreed to
return the jewelry. Y wouldn’t pick the phone anymore.
X decided to drop by the house of Y to pick up the
jewelries and Y refused. X filed a case of Estafa Under
Article 315 1B. Is Y liable of Estafa under Article 315
1B? X delivered the jewelries in trust and in
commission basis. However, he failed to return the
jewelry. There was demand and damage, lost 500,000
pesos. Y contended that he cannot be held liable
because he did not receive any demand letter.
A: Y is wrong. Demand need not be formal, can be in writing,
oral, or other means. SC said if there is sufficient evidence
of misappropriation, the demand is no longer needed,
because misappropriation is no already presumed by law if
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the accused failed to give the said entrusted property,
despite the repeated demands and phone calls.
- It is unlike Estafa by postdating a check.
Q: X went to the bank and told the bank that he sold a
property and handed a check of 10 million to be
deposited in his account, urgently because the buyer is
here and they have to go to the RD for the Deed of Sale.
He handed his passbook and check. X left. After two
hours, he returned and the bank teller was not there.
The manager said that the teller suffered from fever
and had to leave. X asked the manager about his
passbook. Manager confirmed and handed back his
passbook. The said bank teller did not return the 10M
to his bank account. X was mad. X went to the house of
the bank teller but he was not there. What case may he
file against X? Should it be theft or qualified theft or
estafa?
A: It is not estafa because when X gave the passbook and the
check to be deposited in his bank account, physical or
material possession was only transferred. The juridical
possession remained with X. The crime committed was
qualified theft. When he entrusted the money to the bank
teller, the latter gravely abused the trust he gave.
ESTAFA THROUGH FALSIFICATION OF COMMERCIAL
DOCUMENT
Q: X went to the bank and he was very close to the bank
teller because he was a client for a very long time. He
would deposit and he would go to such bank teller.
When X withdrawn money, the bank teller told X to just
leave the passbook with him. X agreed and left the
passbook with the teller. The following morning, X had
a change of mind and realized the passbook was not so
heavy, why would he even give him. X went to the bank
to get the passbook. He went to the bank teller and
demanded the passbook back. X told him that the
passbook is at home and he will bring it to him. X said
to bring it tomorrow. X, the following day, returned and
demanded again the passbook.
The bank teller said that he forgot about it again and he
will return it the next day. X left the bank very sad. The
bank manager noticed X and asked the problem. X
narrated the events. The bank manager confronted the
teller and then the teller said that he already gave the
passbook to the bank manager. The manager grew
suspicious and secretly investigated. When he looked at
the bank account of X, there were four withdrawal, and
when he looked at the withdrawal slip, the said
signature of X was different from the specimen
signature of X. It was forged. It is evident from the said
withdrawal slip and the bank teller participated in the
transaction because of the latter’s signature at the
verification. In order to make sure of his suspicion, the
bank manager went to the house of X and checked if X
Criminal Law Review
Prosecutor Victoria C. Garcia
made some withdrawals from his bank accounts. X
denied and added that the signature was not his. X and
the bank teller was brought together by the bank
manager and the teller admitted to the crime. What are
the crimes committed?
A: The bank teller should be held liable of 4 counts of Estafa
through falsification of commercial documents. Each act of
withdrawal would amount to Estafa xxx, and the
withdrawal slip was falsified to make it look like X withdrew
the money. The withdrawal slip is a commercial document
defined under the laws.
• Always take note of how many counts of crime
committed. One would not get full points in my
exam/Bar exam for stating only the crime
committed. Each act constitute one crime. State
also the reasons.
ESTAFA WITH MEANS OF FALSE PRETENSES OR
FRAUDULENT ACTS EXECUTED PRIOR TO OR
SIMULTANEOUSLY WITH THE COMMISSION OF THE
FRAUD; ILLEGAL RECRUITMENT; SYNDICATED ESTAFA
Q: XYZ were all engineers, having recently passed the
state licensure exams and taken their oath. XYZ
dreamed of working in Dubai. W learned of their big
dream and recommended his placement agency for the
friends. W told them that it would cost them 50K each
inclusive of everything, which would be given to W. XYZ
agreed and gave him the money. W could not be located
and XYZ hasn’t left the Philippines. They went to POEA
and found out that W and his agency are not registered.
What are crimes committed?
A: XYZ can file violation of Estafa under Article 315 2A,
estafa by means of false pretenses or fraudulent acts
executed prior to or simultaneously with the commission of
the fraud. Because of W’s representation that he has the
agency, he has the power and qualifications, XYZ parted
with their money and gave them to W. The false pretense
was simultaneous with the act of defraudation.
Q: Would your answer be the same if XYZ looked at the
POEA and saw there that W has a registration with
POEA?
A: Yes. Even if he is licensed, it is immaterial because he still
misrepresented to XYZ that he has the qualification that he
has the ability to bring them to Dubai. In addition, XYZ can
also file a case of Illegal Recruitment in large scale. The
recruitment is done with 3 or more people, individually, or
as a group. It is a crime of economic sabotage. Punishable by
life sentence. The two crimes are cumulative in nature and
does not exclude each other so he can file the two cases
together. It can proceed independently of each other.
Q: ABCDE formed an investment corporation and
looked a place where they could induce people to invest
in their corporation. And then, they saw a barangay
where there are many retirees and went there. He told
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clients that they will earn plus interest guaranteed. 25
people were induced and gave money to ABCDE
corporation. ABCDE corporation gave them certificates
of investment plus 5 postdated checks representing
interests for 5 months. On the first maturity date, the 25
people deposited the check and they bounced. It is a
closed account. Sent letters of demand which was
ignored and they went to the houses of ABCDE and
found no people inside their houses. What are crimes
committed?
A: ABCDE is liable under PD 1689. Under PD 1689, the
following elements are: that the offender any acts of estafa
under 315 and 316. The elements are in this case, they
committed violation of estafa under 315 2A through means
of false pretenses or fraudulent acts executed prior to or
simultaneously with the commission of the fraud. By such
acts, they were able to induce the persons to part with their
money and such pretense are concommittance with
defraudation. It is syndicated estafa because syndicated
estafa is committed when 5 or more people committed the
act. The third element is when there is defraudation of
money, contributed by stockholders, rural banks,
cooperatives, samahang nayon, farmer’s association or
solicited by corporations and associations from the general
public. In this case, the money was solicited by ABCDE from
the general public.
Q: What if there was investment formed by ABCDE
corporation. They were looking for investors and found
W won from lotto 100 million. They went to W and
induced him to invest in his company and said good
things about their company. W agreed and gave 10
million and ABCDE gave him certificate of investment
plus 50% interest in form of postdated check. W on the
maturity of the check, earned from the check and
became richer. W further invested 50 million. ABCDE
gave him certificate of investment plus 50% interest in
form of postdated check. Again, W earned from the
transaction. He earned 50% of 50 million. W decided to
invest everything. So again he was given the same
documents. W deposited the check and it bounced. He
sent notice of dishonor to ABCDE but received it bank,
“Return to Sender”. W filed a case of syndicated estafa.
Are A, B, C, D, and E liable of syndicated estafa?
A: First element, the offender must have committed any acts
of estafa under RPC Article 315 and 316. In this case, the
committed crime is under Estafa Article 315 2A. The second
element is that it must be committed by 5 or more persons.
In this case it is committed by 5 people. Third element is
that the money that was misappropriated were contributed
by stockholders, rural banks, cooperatives, samahang
nayon, farmer’s association or solicited by corporations and
associations from the general public. SC said since the
victim based on the facts presented is only 1 person, that
one person does not represent the enumerated persons. SC
said the accused shall be held liable only of Estafa under
Article 315 2A.
Criminal Law Review
Prosecutor Victoria C. Garcia
ESTAFA BY POSTDATING A CHECK
Q: X went to Y. He told Y that he needed money for the
online schooling of his son. X told him that he had
nothing to serve as collateral except postdated checks.
It will be funded at the 15th day of the month. X gave
him the postdated checks and Y gave him the needed
money. On the said 15th month, Y went to the bank,
tried to deposit the check but it bounced. Y sent a notice
of dishonor to X and X failed to make good on the check.
What are crimes committed?
A: X can be held liable for Estafa by postdating a check under
Article 315 2D. and also a violation of BP22. When X issued
a check to Y, the false pretense was in concomitance with
defraudation. X promised to Y that it will be funded on the
15th of the month. There is also a violation of BP22. For
every check issued which bounced and the offender failed
to make good on the check within 5 days from the notice of
dishonor, there will be violation of BP22. What is being
punished is the issuance of worthless check.
Q: What if in the same problem, Y went to the house of
X and asked for the payment. X said that he has no
money and gave him again postdated checks. Y
accepted it and it bounced. X failed to make good on the
checks despite notice of dishonor. What are the crimes?
A: Y can a file a case of violation of BP 22 and not a case of
estafa. No estafa because his obligation to the loan is already
existing. It cannot be said that when X issued the check it
was not in concomitance with the act of defraudation. In this
case, the case to be filed is only a violation of BP 22.
BP 22 Estafa by postdating the
check
Issuance of worthless Deceit
checks
The drawer will be held The drawer and endorser
liable can be held liable if he
knows that the checks are
fraudulent
5 banking days The offender is given three
days from the receipt of
notice of dishonor
Crime against public Crime against property
interest
Malum prohibitum Malum in se
BP 22
ACTS PUNISHABLE:
I. Making or drawing and issuance of a check knowing
at the time of issue that the offender does not have
sufficient funds in the bank.
⮚ The drawer of the check knew that at the time of the
issuing of the check, he has no funds in the bank. At the
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making the making, drawing, issuance, the drawer knows
he has no funds
II. The failing to give sufficient funds or credit with the
drawee bank such that when the check presented
within the period of 90 days from the date appearing on
the check, it was dishonored by the drawee bank.
⮚ At the time of the issuance of the check, the drawer has
funds in the bank, however, the crime will arise because he
failed to make good the check or he failed to keep funds to
the said drawee bank within the period of 90 days such that
when the check was deposited within 90 days, it was
dishonored by the drawee bank.
Q: X issued to Y a check for payment of obligation. Y
received the check. Placed it inside the drawer of his
office. Y forgot about the check. 152 days after the date
written in the check, he remembered about the check
and proceeded to the bank to deposit the check. And so
Y sent his notice of dishonor. X said, he is not liable
because he kept the funds for 90 days but Y failed to
deposit the check therefore it is not his fault the checks
bounced. Can Y still file a case against X?
A: Yes. Because as long as the checks were not yet stale
checks under NIL, the check bounced, there is still violation
of BP 22 because when the check bounced, the 90 days is
only for the prima facie knowledge of insufficiency of funds
but it can be proven by other evidence.
Q: X was charged with violation by BP22. The
investigating commissioner is looking at the evidence
and noticed that no evidence of notice of dishonor was
sent and received.
A: It means dismissal of the case. Upon the receipt of the
notice of dishonor he is informed that the checks bounced
and that he is given by the law 5 days to make good on his
checks. If he made good within 5 days, he will not be
charged and it will be a dismissal of the case. Note that
postdating a check under BP 22 , the demand letter must be
in writing and must be received. A mere statement that the
checks were received will amount to acquittal. We have to
present the mailman and his affidavit that he sent the notice
and it was received by the offender.
Q: X was convicted of violation of BP 22. The court
finding him guilty, gave him 1 year of imprisonment
plus fine plus payment of value of checks. Counsel of X
filed an MR, arguing that judge gravely committed a
mistake in the sentence of the offender because BP 22
was only punishable by fine and not imprisonment. Is
the argument of the counsel correct?
A: Wrong. imprisonment of 30 days to 1 year or a fine not
less than but not more than double the value of the check or
in no case to exceed 200,000 pesos, or both fine and
imprisonment at the discretion of the court.
Criminal Law Review
Prosecutor Victoria C. Garcia
S.C-A.C. No. 12-2000; S.C. – A.C. No. 13-2001
It is stated in SC-A.C. No. 12-2000 that in lieu of
imprisonment, the penalty to be imposed in violation of
BP 22 should only be fine, that is, if based on the facts and
circumstances of the offense and the offender, the check
was issued in good faith or under mere mistake of fact
without any taint of negligence. SC said that the appropriate
penalty should be fine in lieu of imprisonment.
Because of this SC-AC No. 12-2000, many MTC judges
thought that imprisonment is no longer a penalty for
violation of BP 22. They thought that now, the penalty for
violation of BP 22 is only fine. And because of this
misunderstanding on the part of MTC judges, the SC has to
issue another administrative circular, the SC-A.C. No. 13-
2001 in order to clarify SC-A.C. No. 12-2000.
In SC-A.C. No. 13-2001, the SC made the following
clarifications:
1. The SC-A.C. No. 12-2000 does not remove imprisonment
as an alternative penalty for violation of BP 22. Therefore,
imprisonment is still a penalty for violation of BP 22. Only
Congress can amend the law.
2. What SC-A.C. No. 12-2000 only establishes is a rule of
preference on the imposition of the penalty such that if the
offender acted in good faith or under clear mere mistake of
fact without any taint of negligence, the appropriate penalty
is fine in lieu of imprisonment.
3. The SC said if the penalty imposed by the court is fine
only, and the said offender or drawer of the check is
insolvent to pay the fine, then there is no legal obstacle for
the imposition of subsidiary imprisonment under Art. 39 of
Book I of RPC.
- only a suggestion. It does not preclude the court from
imposing imprisonment if they believe that it should be
imposed. It depends on the sole discretion of trial courts.
ARTICLE 316 – OTHER FORMS OF SWINDLING
Article 316. Other forms of swindling. - The penalty of
arresto mayor in its minimum and medium period and a
fine of not less than the value of the damage caused and not
more than three times such value, shall be imposed upon:
1. Any person who, pretending to be owner of any
real property, shall convey, sell, encumber or
mortgage the same.
2. Any person, who, knowing that real property is
encumbered, shall dispose of the same, although
such encumbrance be not recorded.
3. The owner of any personal property who shall
wrongfully take it from its lawful possessor, to the
prejudice of the latter or any third person.
4. Any person who, to the prejudice of another, shall
execute any fictitious contract.
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5. Any person who shall accept any compensation
given him under the belief that it was in payment of
services rendered or labor performed by him,
when in fact he did not actually perform such
services or labor.
6. Any person who, while being a surety in a bond
given in a criminal or civil action, without express
authority from the court or before the cancellation
of his bond or before being relieved from the
obligation contracted by him, shall sell, mortgage,
or, in any other manner, encumber the real
property or properties with which he guaranteed
the fulfillment of such obligation.
ARTICLE 317 – SWINDLING A MINOR
Article 317. Swindling a minor. - Any person who taking
advantage of the inexperience or emotions or feelings of a
minor, to his detriment, shall induce him to assume any
obligation or to give any release or execute a transfer of any
property right in consideration of some loan of money,
credit or other personal property, whether the loan clearly
appears in the document or is shown in any other form,
shall suffer the penalty of arresto mayor and a fine of a sum
ranging from 10 to 50 per cent of the value of the obligation
contracted by the minor.
ELEMENTS:
1. That the offender takes advantage of the
inexperience or emotions or feelings of a minor;
2. That he induces such minor (a) to assume an
obligation, or (b) to give release, or (c) to execute a
transfer of any property right;
3. That the consideration is (a) some loan of money,
(b) credit or (c) other personal property; and
4. That the transaction is to the detriment of such
minor.
Q: Who is liable?
A: Any person who taking advantage of the inexperience or
emotions or feelings of a minor, to his detriment, shall
induce him to assume any obligation or to give any release
or execute a transfer of any property right in consideration
of some loan of money, credit or other personal property,
whether the loan clearly appears in the document or is
shown in any other form.
ARTICLE 318 – OTHER DECEITS
Article 318. Other deceits. - The penalty of arresto mayor
and a fine of not less than the amount of the damage caused
and not more than twice such amount shall be imposed
upon any person who shall defraud or damage another by
Criminal Law Review
Prosecutor Victoria C. Garcia
any other deceit not mentioned in the preceding articles of
this chapter.
Any person who, for profit or gain, shall interpret dreams,
make forecasts, tell fortunes, or take advantage of the
credulity of the public in any other similar manner, shall
suffer the penalty of arresto mayor or a fine not exceeding
200 pesos.
Q: Who is liable?
A: Any person who, for profit or gain, shall interpret dreams,
make forecasts, tell fortunes, or take advantage of the
credulity of the public in any other similar manner.
ARTICLE 319 – REMOVAL, SALE OR PLEDGE OF
MORTGAGED PROPERTY
⮚ Any person who shall knowingly remove any personal
property mortgaged under the Chattel Mortgage Law to any
province or city other than the one in which it was located
at the time of the execution of the mortgage, without the
written consent of the mortgagee, or his executors,
administrators or assigns.
⮚ Any mortgagor who shall sell or pledge personal
property already pledged, or any part thereof, under the
terms of the Chattel Mortgage Law, without the consent of
the mortgagee written on the back of the mortgage and
noted on the record hereof in the office of the Register of
Deeds of the province where such property is located.
ARSON AND OTHER CRIMES INVOLVING
DESTRUCTIONS
ARSON is the malicious destruction of the property by
means of fire.
2 KINDS OF ARSON:
1. DESTRUCTIVE ARSON – punished under Art. 320 of
the RPC as amended by RA 7659
2. SIMPLE ARSON – punished under PD 1613
particular Section 3
Q: X wanted to burn the house of Y because he was
envious of house of Y. He knows that the family of Y
were out of the house during the day Y planned to burn
the house. Unknown to him, Y hired a new househelper
and she was sleeping inside the bedroom inside the
house. He proceeded to burn the house and the
househelper died.
A: In an SC case People vs. Malngan, the crime committed is
Simple Arson. What you consider is the intent of the
offender. If the house is burned and someone is killed but
the intention is to burn the house, the crime if simple arson.
If the intention is to kill the person inside by burning the
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house the crime committed is murder. If the accused killed
the victim and placed the victim inside the house and
burned the house, there are two crimes committed, one is
murder for killing the victim and another one is simple
arson for setting the house on fire.
If someone was killed in the commission of arson, the crime
committed is Arson with Homicide.
NOTE:
1. People vs. Malngan - GR 170470 26 September
2006 – Simple Arson
2. People vs. Gil – Arson with Homicide
3. People vs. Dolendo - GR 223098 03 June 2019 –
Penned by Justice Lazaro Javier – Crime committed
is Simple Arson citing Malngan case.
4. People vs. Soria - GR 248372 27 August 2020 -
Penned by Justice Peralta – Arson with Homicide
citing Gil case. This is the recent case.
- If asked in the bar, answer Arson with Homicide
based on the recently decided case of People vs.
Soria, and also cite People vs. Malngan and
Dolendo.
- The crime is Simple Arson because the crime of
homicide is absorbed, elevated penalty to reclusion
perpetua to death, according to P.D. 1613.
- “Wala naman sigurong masama kung
magsesecond-paragraph ka to explain Simple
Arson because for me Malngan and Dolendo are
better explained cases” – Prof.
CONSUMMATED, FRUSTRATED, ATTEMPTED ARSON
Q: Is there such a crime of Frustrated Arson? X, wanted
to burn the house of Y. X pulled a cart containing cases
of straws. He placed it all over the house of Y. He was
about to set it on fire when suddenly Y arrived and
immediately stopped X. What are the crimes
committed?
A: Attempted arson. The act of X placing straws around the
house of Y and about to set it on fire these are over acts
directly connected to the crime of Arson however, by reason
by of accident or other causes other than by spontaneous
desistance of the offender, the crime was not produced.
Q: Let us add facts. X placed the straws around the
house of Y and already set the straws on fire by using a
match. The straws were burning and suddenly Y
arrived. Y was afraid the fire would reach his house so
he called the nearest neighbor and firemen. The fire
was put out. The house were not burned, only the
straws. What are the crimes committed?
A: X committed Attempted Arson. The act of X putting the
straws around the house and setting it on fire are direct
overt acts of Arson. However, the crime was not produced
because of accident or other causes other than by
spontaneous desistance of the offender, which is the
Criminal Law Review
Prosecutor Victoria C. Garcia
neighbors and the firemen and Y’s effort of putting out the
fire.
Q: What if, the house caught fire but only on the walls
and roof? Together with the neighbors and firemen
they stopped the fire.
A: X is liable for Consummated arson. To be liable for
consummated arson, the law does not require that the
entire house should be gutted by fire. It is only required that
the said house, building or the said inhabited place be
damaged by means of fire. The moment the roof, the wall, or
any portion of the house catches fire, it is already arson in
its consummated stage. There can be no frustrated case of
Arson.
In the case that I assigned to you, it is a very old case,
The SC said it is frustrated Arson. We beg to disagree,
based on the definition of attempted, frustrated crimes,
and consummated crimes under RPC. For the definition
of frustrated crime, when the offender performs all the
acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it
by reason of causes independent of the will of the
perpetrator. And in arson, in order that it must be
committed, the property must be set with fire. But the
moment it is set with fire, arson is already committed.
MALICIOUS MISCHIEF
(ARTICLE 327 – 331)
ELEMENTS OF MALICIOUS MISCHIEF:
1. that the offender deliberately caused damage to the
property of another;
2. that such act does not constitute arson or other
crimes involving destruction;
3. that the act of damaging another’s property be
committed merely for the sake of damaging it
Q: In the problem that I gave earlier, what if the taxi
driver took the money and then burned the wallet on
the backyard of his house. Aside from theft, what are
the other crimes committed?
A: The crime committed was malicious mischief. He
deliberately caused damage on the property of the owner of
the wallet. It is not arson because in arson it is necessary
that it is a building or a house, or listed under Article 320 or
PD 1613. The thing that has been burned is only a wallet.
Q: Who are liable for malicious mischief?
A: Any person who shall deliberately cause the property of
another any damage not falling within the terms of the next
preceding chapter shall be guilty of malicious mischief. This
cannot be committed by mere negligence. There must be
deliberate intent, just like mutilation, where there must be
a deliberate intent to cut off the private part of a person. In
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case of malicious mischief, intent to damage of another is TITLE ELEVEN - CRIMES AGAINST CHASTITY
necessary.
ARTICLE 333 – WHO ARE GUILTY OF ADULTERY
Q: What if there is no deliberate intent on his part?
A: He cannot be held liable for malicious mischief.
ELEMENTS:

1. That the woman is married;

ARTICLE 332 – EXEMPTION FROM CRIMINAL
2. She has sexual intercourse with a man who is not
LIABILITY IN CRIMES AGAINST PROPERTY
her husband; and
3. As regards the man whom she has sexual
If the crime of THEFT, SWINDLING (or estafa) or
intercourse, he must know her to be married.
MALICIOUS MISCHIEF is committed and it is caused
mutually by the following persons:
Adultery is committed by any married woman who shall
- Spouses, ascendants and descendants, or relatives
have sexual intercourse with a man who is not her husband
by affinity in the same line.
and by the man who has carnal knowledge of her knowing
- The widowed spouse with respect to the property
her to be married, even if the marriage be subsequently
which belonged to the deceased spouse before the
declared void.
same shall have passed into the possession of
another; and
Offender: Married woman and her paramour or lover
- Brothers and sisters and brothers-in-law and
Offended party: Husband
sisters-in-law, if living together.
Who can file the case: Husband
No criminal, but only civil liability, shall result from the
commission.  Adultery is a private crime which cannot be prosecuted
by the state de officio. There must be first a complaint
The exemption established by this article shall not be filed by the offended party and that is the husband.
applicable to strangers participating/in connivance in the
commission of the crime. Against whom shall the husband file the case: Both his
wife and the lover of his wife.
It is to maintain the harmony in the family.
Q: What if the said man didn't know that the woman is
a married woman?
Intestate Estate of Manolita Gonzales Vda. De
A: The fact that the men didn't know that the woman is a
Carungcong v. People
married woman is a matter of defense on the side of the
man. He can prove it in court but he has to be charged. He
CRIME CHARGED: Estafa through falsification of public
must be included in the charge filed by the husband,
document
otherwise the case will not prosper. If he would be able to
prove that only the wife would be liable for adultery. He has
The exemption under Article 332 will not arise, it will not
to be acquitted.
absorb the offender if the crime committed is already a
complex crime. In this case, the son-in-law of a Japanese
Adultery is a formal crime. It has no attempted or frustrated
National committed estafa through falsification of a public
stages because adultery is punished upon the carnal union
document. The son-in-law’s defense is that he is absolved of
of a married woman with another man, not her husband. It
criminal liability.
is a crime based on result. It can be proven not only by
means of direct evidence but also by circumstantial
SC: If we will read the Information, the crime charged is
evidence.
Estafa. If you will look at the contents and allegation, it is
expressly stated that the estafa is committed through
If adultery is for a married woman, for a man, we have
falsification of public document by falsifying an SPA.
concubinage.
Therefore, even if the title reads Estafa, but the allegations
and the contents of the Information says that the crime
committed is estafa through falsification of public
documents, 332 will not apply because estafa is complexed ARTICLE 334 – CONCUBINAGE
with falsification of public document and the crime for
which the estafa is complexed, it is against public interest Concubinage can be committed in any of the following
(Title IV). It cannot be absorbed. means:

1. Keeping a mistress in the conjugal dwelling;

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2. Having sexual intercourse under scandalous d. Means of deceit
circumstances with a woman, not his wife;
3. Cohabiting with her in any other place The offended party must be a woman. Because in seduction
the victim is always a woman. The offender committed said
Offender: Legal husband or concubine acts of lasciviousness under circumstances off seduction.
Offended party: Wife That is:

Who can file the case: Wife a. by means of abuse of authority

b. by means of abuse of confidence
Against whom shall the husband file the case: Both c. by means of abuse of relationship
husband and concubine. d. by means of deceit.
 In case the concubine didn't know that the man is a
married man, it is a matter of defense on her part. If she When you say acts of lasciviousness, it refers to a lewd act
proves that she didn't know that the man is a married prompted by lewd design and prompted by lust which must
man she can be acquitted of concubinage. The penalty of not be initiated by the victim.
a concubine is only destierro.
TWO KINDS OF SEDUCTION:
TWO KINDS OF ACTS OF LASCIVIOUSNESS:
1. Qualified Seduction
I. Acts of Lasciviousness under circumstances of rape a. Qualified seduction of a Virgin.
under Art. 336 b. Qualified seduction of a sister.
II. Acts of Lasciviousness under circumstances of seduction 2. Simple Seduction
under Art. 339
QUALIFIED SEDUCTION OF A VIRGIN

ARTICLE 336 – ACTS OF LASCIVIOUSNESS UNDER ELEMENTS:

CIRCUMSTANCES OF RAPE
1. The offended party must be a virgin ;
The offended party can be any person. It can be a female or 2. She must be over 12 and under 18 years of age;
a male. The said acts of lasciviousness was committed under 3. The offender is a person in public authority, priest,
circumstances of rape. That is: house servant, domestic, teacher, guardian or any
person, in any manner, shall be entrusted with the
a. Using force or intimidation; education or custody of the woman seduced;
b. When the offended party is deprived of reason or 4. The offender had sexual intercourse with of the
otherwise unconscious; said offended party; and
c. By means of fraudulent machination or grave 5. There is abuse of authority, confidence or
abuse of authority; and relationship on the part of the offender
d. When the offended party is under 12 years of age
or demented QUALIFIED SEDUCTION OF A SISTER

ELEMENTS:
ARTICLE 339 – ACTS OF LASCIVIOUSNESS UNDER
1. The offended party is a sister.
CIRCUMSTANCES OF SEDUCTION (WITH THE
2. The offender is a brother.
CONSENT OF THE OFFENDED PARTY)
3. The offender had carnal knowledge of the said
sister
ELEMENTS:
4. And they said carnal knowledge was brought
about by abuse of relationship.
1. Offender commits acts of lasciviousness or
lewdness;
Age does not matter. Therefore, even if the sister is 18 and
2. Acts were committed upon a woman who is a
above, there is still qualified seduction. Virginity is likewise
virgin, or single or widow of good reputation,
immaterial. Even if the sister is already married, there can
under 18 years of age but over 12 years, or a sister
still be qualified seduction.
or descendant regardless of her reputation or age;
3. Offender accomplishes the acts by:
Q: It was past 6:00 o'clock in the evening. The janitor
a. Abuse of authority
went to the warehouse to return the things he used in
b. Abuse of confidence
cleaning. Upon opening the warehouse, he saw 15 year
c. Abuse of relationship
old student X and professor Mr. Y in actual sexual
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intercourse. The janitor reported what he saw to the
head of school. The head of the school informed the
parents of X. The parents and X filed a case for qualified
seduction against the professor. Mr. Y raised the
following arguments: 1) He discovered that X is no
longer a virgin and in qualified seduction the woman
must be a virgin; 2) He is not the kind of teacher being
referred to because a teacher being referred to under
Article 327 must be the teacher of the student. He does
not handle any subject wherein X is his student and 3)
X consented. Are the arguments of Mr. Y meritorious?
A: The first argument has no merit. When the law used the
word virgin the law does not mean that the woman must be
physically virgin. It suffices that the woman is single and
living a chaste life. The fact that she is a student of a
university, this student is living a chaste life and she is
single. Therefore, the first argument has no merit.
It suffices that his profession is to teach. Because of that he
exercises moral authority over a student. Therefore, the
second argument has no merit.
The third argument likewise has no merit. X gave consent
that is why it is only qualified seduction. Because if X did not
give her consent and the said carnal knowledge was done
by force then the professor would be charged with the
crime of rape.
All the arguments of the professor have no merit. He is liable
as charge for qualified seduction.
ARTICLE 338 – SIMPLE SEDUCTION
ELEMENTS:
1. Offended party is over 12 and under 18 years of
age;
2. She must be of good reputation, single or widow ;
3. Offender has sexual intercourse with her; and
4. It is committed by means of deceit.
Deceit here usually refers to broken promise of marriage. So
that the woman would give her virginity to the man, the
man promised to marry her.
In case of seduction, whether it is qualified seduction or
simple seduction, the victim is always over 12, but under 18
years of age. In this case, there is always sexual intercourse.
No sexual intercourse no crime of seduction. But it is always
seduction and not rape because in these cases the minor
gave consent. Why did the minor consent? Because the
minor was seduced. There was on the part of the accused
abuse of authority, abuse of confidence, abuse of
relationship or deceit.
Criminal Law Review
Prosecutor Victoria C. Garcia
ARTICLE 340 – CORRUPTION OF MINORS
Any person who shall 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 or employee, including those in
government-owned or controlled corporations, he shall
also suffer the penalty of temporary absolute
disqualification. (As amended by Batas Pambansa Blg. 92).
ARTICLE 341 – WHITE SLAVE TRADE
The penalty of prision mayor in its medium and maximum
period shall be imposed upon any person who, in any
manner, or under any pretext, shall engage in the business
or shall profit by prostitution or shall enlist the services of
any other for the purpose of prostitution (As amended by
Batas Pambansa Blg. 186.)
PUNISHABLE ACTS:
1. Engaging in the Business of Prostitution
2. Shall Profit by Prostitution
3. Enlist the services of any woman for the purpose of
prostitution
ARTICLE 342 – FORCIBLE ABDUCTION
It is the taking away of a woman against her will. At the
outset there was a lewd design on the part of the said man.
In case of abduction, whether it is forcible abduction or
consented abduction sexual intercourse is not an element.
If after abducting the said woman, the man had carnal
knowledge of her by means of force, violence or
intimidation. The said man is also liable for the crime of
rape because sexual intercourse is not an element.
Q: The tricycle driver passed by the house of X. He had
courted X for months but X now has a different
boyfriend. He saw X at the doorstep of the house. The
tricycle driver pushed the gate and carried X. The
woman was shouting for help and the tricycle driver
covered her mouth. At the outset of taking the woman,
there was on his part lewd design. He brought the
woman inside a small house and there he tied the said
woman. Thereafter, he gave the woman food but X
wouldn't eat. The next day X told the tricycle driver to
release her. The tricycle driver said “No, I will only
release you if you will marry me” The woman said “No
that will never happen specially with what you have
done!” That afternoon, again, the driver gave food to X.
He release X from being tied. The driver left. Thereafter,
he returned and by means of force and violence had
carnal knowledge with X. X pleaded but he was
successful in having carnal knowledge with her. On the
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third day of her captivity, again, the tricycle driver had
carnal knowledge with X. On the 4th day of her captivity
again, the tricycle driver had carnal knowledge of X by
means of violence or force. On the 5th Day X was able to
escape. What crime is/are committed by the tricycle
driver?
A: The tricycle driver first committed forcible abduction. He
carried away the woman against her will and at the outset
there was lewd design. Thereafter, he committed the first
act of rape on the second day, the second act of rape on the
third day and the third act of rape on the 4th day. Therefore,
all in all, he committed four crimes. One forcible abduction.
Rape on the second day. Rape on the third day and rape on
the 4th day.
Q: What crime or crimes should be filed against him?
A: The cases to be filed against him are first: One count of
rape through forcible abduction. Another count of rape. And
another count of rape. Three cases should be filed against
him.
If by reason of the forcible abduction, the said man would
have carnal knowledge of the woman against her will, the
said act of rape has to be complex with forcible abduction
because forcible abduction was a necessary means in order
to commit the first act of rape. However, the succeeding acts
of rape would no longer be complex because forcible
abduction would no longer be necessary. Therefore, in this
case, the said driver would be charge with: 1) Rape through
forcible abduction; 2) Rape and 3) Rape.
Q: Same problem. The tricycle driver abducted X.
Carried X from the house and at the outset there was
lewd design and brought X inside a house. That very
same night he tried to have carnal knowledge with X. X
Put up a fight. X was able to grab a lead pipe and a piece
of wood. With these two weapons X was able to attack
the driver and escape. She went to the police station
and filed 2 cases against the driver. One is forcible
abduction. The other one is attempted rape. If you were,
the public prosecutor, would you indict the tricycle
driver as charge?
A: If you were the public prosecutor you have to indict the
tricycle driver with only one charge and that is forcible
abduction. The attempt to rape the victim is absorbed by the
crime of forcible abduction because the attempt to rape the
victim is a manifestation of the lewd design element of
forcible abduction. Therefore, it is simply absorbed.
If rape is not consummated but merely attempted you do
not complex it with forcible abduction. It is just absorbed.
Because it is just a manifestation of the lewd design element
of forcible abduction.
Q: X was on his way to his work when he passed by a
grocery store and saw there waiting for a ride the wife
of his enemy, Y. X upon seeing the wife of Y went to her,
covered her mouth and forcibly brought the wife to his
Criminal Law Review
Prosecutor Victoria C. Garcia
van. He tied her hands and brought her to a secluded
place. X wanted to detain the said wife in order to get
even with Y. He wanted Y to be so disturbed looking for
his wife. He decided to keep the wife for at least a week
or two. That night, however, he found the wife of Y very
attractive and by means of force and violence had
carnal knowledge with the said wife. On the next night,
again, he had carnal knowledge of the said wife. On the
third night again, he had carnal knowledge of the said
wife until the wife was able to escape. What crime or
crimes is/are committed by X?
A: X is liable for kidnapping and serious illegal detention
with Rape. A special complex crime under Article 267.
When the victim of kidnapping is raped, we have a special
complex crime under Article 267. Here, the obvious intent
of X is to detain the wife in order to get even with his enemy
Y. However, while the woman is detained, X had carnal
knowledge of the said woman three times. Regardless of the
number of times the victim had been raped we only have
one single, indivisible offense composite crime of
kidnapping and serious illegal detention with Rape.
Q: What if in the same problem. X upon seeing the wife
of Y went to her, covered her mouth and forcibly
brought the wife to his van. He tied her hands and
brought her to a secluded place. That night, X tried to
have carnal knowledge with the said wife. But the wife
put up a fight and was able to escape. X was charged
with two crimes. First, kidnapping with serious Illegal
detention. Second, attempted rape. Are the charges
correct?
A: The charges are correct. Because in order to bring about
the special complex crime of kidnapping and serious illegal
detention with rape, it is necessary that the rape must be
consummated. In this case. rape is only attempted;
therefore, it will constitute a separate charge. Two cases
shall be filed against X: 1) Kidnapping and serious illegal
detention and 2) Attempted rape.
KIDNAPPING AND FORCIBLE ABDUCTION
SERIOUS ILLEGAL WITH RAPE
DETENTION WITH RAPE
A special complex crime, A complex crime under Article
a composite crime; a single, 48 because the forcible
indivisible offense. abduction is a necessary
means to commit the act
of rape.
At the outset the intent of At the outset the intent of the
the offender is to detain the offender is with lewd design.
victim.
If there are multiple acts of If there are multiple acts of
rape committed on therape, you only
victim, all these acts of rape complex forcible abduction
are absorbed in this single with the first act of rape. The
indivisible offense it being a succeeding acts of rape would
special complex crime constitute separate and
distinct charges.
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The rape must be If rape is merely attempted, it the said abduction, the man would have carnal knowledge
consummated. If rape is is simply absorbed by forcible of her, the man would be liable for the crime of rape.
merely attempted, it will abduction because it is just a
constitute a separate and manifestation of Q: X and Y. X was only 15 years and her boyfriend is 25
distinct charge. the lewd design element of years old. X is the only child of the family. The family
forcible abduction. didn't like the boyfriend the boyfriend has no work just
a tambay and against they were relationship and so
they decided elope. At first the girl refused, pleaded not
ARTICLE 343 – CONSENTED ABDUCTION but the sad man succeeded with having carnal
knowledge with her by employing violence on her.
ELEMENTS: What crime is committed?
A: The crime committed is rape through consented
1. The woman must be a virgin ; abduction. The consented abduction was a necessary means
2. She must be over 12 years but under 18 years of in order to commit the act of rape. Therefore, it would bring
age ; about a complex crime under Art 48.
3. The taking away must be with her consent, after
solicitation or cajolery from the offender; and
4. The taking away must be with lewd designs. ARTICLE 344- PROSECUTION OF THE CRIMES OF
ADULTERY, CONCUBINAGE, SEDUCTION,
People v. Cayanan ABDUCTION, RAPE AND ACTS OF LASCIVIOUSNESS

The crimes of adultery and concubinage shall not be

The girl, 13 years old, was sleeping when suddenly her
brother-in-law, the husband of her elder sister and by prosecuted except upon a complaint filed by the offended
means of force and violence despite the pleas and cries of spouse.
the girl, the man had carnal knowledge of her. Two weeks
The offended party cannot institute criminal prosecution
thereafter, the girl was still dressed in her uniform. She was
without including both the guilty parties, if they are both
about to enter the school when here comes the tricycle,
driven by her brother-in-law. The brother-in-law forcibly alive, nor, in any case, if he shall have consented or
pardoned the offenders.
took the girl inside the tricycle. He brought the girl inside
the house of his parents and there inside the room the said
The offenses of seduction, abduction, rape or acts of
brother-in-law again had carnal knowledge of the girl. The
lasciviousness, shall not be prosecuted except upon a
brother-in-law was charged with two crimes. First, for the
first night: qualified Rape. Second: forcible abduction with complaint filed by the offended party or her parents,
grandparents, or guardian, nor, in any case, if the offender
rape. Qualified rape because of their relationship by affinity
has been expressly pardoned by the above named persons,
and because of the minority of the said girl. Insofar as the
second act is concerned, the brother-in-law was charged as the case may be.
with forcible abduction with rape. However, the Supreme
Court said it is another count of qualified rape. The Supreme In cases of seduction, abduction, acts of lasciviousness and
rape, the marriage of the offender with the offended party
Court convicted the accused of two counts of Qualified
shall extinguish the criminal action or remit the penalty
Rape. Insofar as the first act is concerned there is no
problem. There is indeed qualified rape. The qualifying already imposed upon him. The provisions of this
paragraph shall also be applicable to the co-principals,
circumstances of minority and relationship are both
accomplices and accessories after the fact of the above-
present. However, insofar as the second act is concerned,
mentioned crimes.
Supreme Court said it is another count of qualified rape. The
obvious intent of the brother-in-law was to rape again the
sister-in-law. The said act of abducting her was merely
incidental in order to commit the act of rape. Therefore, it is ARTICLE 345 – CIVIL LIABILITY OF PERSONS GUILTY
another count of Qualified Rape and not Forcible Abduction OF CRIMES AGAINST CHASTITY
with Rape.
Person guilty of rape, seduction or abduction, shall also be
sentenced:
The abduction of a virgin over twelve years and under
eighteen years of age, committed with consent. So, in case 1. To indemnify the offended woman.
of consented abduction, the victim is a virgin over 12 and 2. To acknowledge the offspring, unless the law
under 18 years of age and the act the said man carried away should prevent him from so doing.
the said girl with her consent. She allowed it. Again, if after 3. In every case to support the offspring.

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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.
TITLE TWELVE - CRIMES AGAINST CIVIL STATUS OF
PERSONS
ART. 347 – SIMULATION OF BIRTHS, SUBSTITUTION
OF ONE CHILD FOR ANOTHER AND CONCEALMENT
OR ABANDONMENT OF A LEGITIMATE CHILD
1. Simulation of birth
Simulation of birth- takes place when the woman pretends
to be pregnant when in fact she is not and on the day of the
delivery, takes the child of another as her own.
• If the simulation is done in the birth certificate, the
crime committed is simulation of birth;
• If the simulation is done in any other document
aside from birth certificate, the crime committed is
falsification of a public or private document as the
case may be.
2. Substitution of a child with another
3. Concealing or abandoning any legitimate child with intent
to cause such child to lose its civil status
ARTICLE 348 – USURPATION OF CIVIL STATUS
Criminal Law Review
Prosecutor Victoria C. Garcia
It shall be committed by any person who shall usurp the
civil status of another, who shall assumes the filiation, or the
paternal, or the marital rights of another.
• Intention of the offender is to enjoy the civil rights
arising from the civil status of the person whom he
impersonates.
• If the intention of the offender is to defraud the
offended party, or his heirs, the penalty is
QUALIFIED
ARTICLE 349 – BIGAMY
It is committed by any person who shall have a second or
subsequent marriage before his first marriage has been
declared null and void or or before the absent spouse has
been declared presumptively dead by means of a judgment
rendered in the proper proceedings.
Before any person who shall contracts a second or
subsequent marriage before the former marriage has been
declared null and void, or a person who shall t a subsequent
or second marriage before the absent spouse has been
declared presumptively dead in a judicial proceeding.
Before a married person can contract a subsequent or
second marriage, there must first be a judicial declaration
of nullity of the first marriage. There must first be a judicial
declaration of the presumptive death of the said absent
spouse. If without this judicial declaration, the present
spouse enters into a second or subsequent marriage, he
becomes liable for the crime if bigamy.
Q: So X&Y were married. X after several years of
marriage, X found another woman. X fell in love with
this said woman. X marries the said women because X
believed his first marriage was null and void. In his first
marriage both he and his wife we're only 16 years old.
Therefore they do not have the legal capacity to enter
into marriage. As a result, he immediately got marriage.
When the said first wife learned of this, she filed a case
for bigamy against X. The Arguments raised by X:
First, according to him, he could not be liable for bigamy
because the first marriage is obviously not employed
both of them have no legal capacity to enter it.
Second, the charge of bigamy would not prosper.
According to him the charge of bigamy would not
prosper simply because the said first wife filed e only
against him for it to prosper it is necessary that the case
must be filed against both of them, he and the said wide.
Are his arguments meritorious?
A: The first argument has no merit. It is settled in
jurisprudence that before a legally married person can
contract a second or subsequent manage there must first
be a judicial declaration of nullity of the said first marriage.
The SC said it provides “unless it is legally dissolved”
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because the law does not leave on the parties the
determination of whether the first marriage was null and
void. It is up to the court get word. Hence, in this case , the
first argument has no merit.
Second argument also has no merit because in case of
bigamy only X is liable for he is the only one who has
entered into a second marriage. That was the first marriage
of the second wife. The second wife, therefore, cannot be
held liable for a bigamous marriage. Second, it is not a
private crime. Bigamy is a public crime and not a private
crime.
In a case, the SC said that if the second wife knew all along
that the man he married has been legally married. The wife
can be held liable as an accomplice for the crime of bigamy.
ARTICLE 350 – MARRIAGE CONTRACTED AGAINST
PROVISIONS OF LAWS
Illegal marriage- marriage contracted without the
requisites of the law.
• Committed by any person who shall contract a
marriage knowing that he was not able to comply with
the requisites of law or if there is a legal impediment of
the said marriage.
• In the Family Code, before one can contract a marriage,
there is the so called essential and formal requisites. All
of these must be complied with. The absence of any of
these, the contracting parties knows its absence, yet
contracted the marriage, the liability falls under Art.
350 for illegal marriage.
ART. 351 – PREMATURE MARRIAGES
Person Liable:
1. A woman who married within 301 days from the
death of her husband, or before delivery of her
baby if she is pregnant at the time of his death;
2. A woman whose marriage having been annulled or
dissolved, married before delivery or before
expiration of the period of 301 days after the date
of legal separation.
ARTICLE 352 – PERFORMANCE OF ILLEGAL
MARRIAGE CEREMONY
Priests or ministers of any religious denomination or sect,
or civil authorities who shall perform or authorize any
illegal marriage ceremony shall be punished in accordance
with the provisions of the Marriage Lam.
Criminal Law Review
Prosecutor Victoria C. Garcia
Q:X&Y got married they said marriage was solemnized
by W. X&Y are both male. And the solemnizing officer, a
minister of a religious sect knew that X&Y are both
male. What crime or crimes are committed by X&Y and
the said W, the officiating minister of the religious sect.
A: X & Y are liable for illegal marriage under Article 350 of
the RPC. Despite the fact that they knew that they lack the
requisites to contract a valid marriage, still they contracted
the said marriage. And the said minister from a religious
denomination would be liable under Article 352 of the RPC.
He shall be liable for Art 352 which punishes any priest or
any minister of a religious denomination or sect who shall
authorize an illegal marriage ceremony or who shall
perform an illegal marriage ceremony. Here, the said
minister performed an illegal marriage ceremony,
therefore, he shall be held liable under Art 352.
TITLE THIRTEEN - CRIMES AGAINST HONOR
ARTICLE 353 – LIBEL
Libel – is public and malicious imputation of a crime, or of
a vice or defect, whether real or imaginary on any person
and it is necessary that in the commission of the said crime,
there was malice on the part of the said offender.
ELEMENTS:
1. There must be an imputation or allegation of a
crime, or a vice of defect, whether real or
imaginary;
2. That there must be publicity of the said imputation;
and
3. The identity of the person defamed; and
4. The existence of malice.
These are the elements of Libel. First, imputation of crime
vice or defect. Second element, publicity, it is necessary that
the imputation of the crime, vice or defectmust be
published. The element of publicity in library satisfied the
moment a third person has read the said libelous article;
the moment a third person has heard the said libelous
statement. So the key is a third person reading it, a person
hearing it even if the person defamed has not yet known it .
Third element, the identity of the person defamed. The
person defamed need not be described in detail. It suffices
that anyone reading the article that anyone hearing the
libelous statement can point to him as the person subject of
the sentence defamatory article, as the person subject of the
defamatory statement. Last, we have malice. Malice is
presumed for every defamatory statement for every
defamatory article, if the said author thereof, if the said
offender cannot give any justifiable reason for the said
statement; for the said libelous article. This is malice in
law. It is the law that presumes the presence of malice in
any libelous article, in any library statement therefore the
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private complainant need not prove it, the law presumes it.
The burden is on the offender to prove otherwise that when
he wrote this add article, that when he made the said
statement there was no malice in his part.
Q: What if in the Philippine Daily Inquirer there was
this five series article. Front page on the corner therein,
five-part series article about Senator Gordon and the
corruption in the Red Cross. So let’s say in the said
article, Senator Gordon this amount this amount
involved in this transaction involving the red cross and
by reason thereof by the end of the article, he was able
to almost amass and accumulate 1 billion pesos and
shouldn't he be charged with plunder that is the article
written by the author published by Philippine Daily
Inquirer. Senator Gordon was defamed. His family were
all crying afoul that there father has been defamed. Can
they file a case of libel? In case they file the case, does
law presumes malice?
A: They can file a case of libel. He is a public officer and by
reason of this article pertaining to the performance of his
function, he was being accused the commission of a crime
therefore he can file a case of libel. However this time, the
law will not presume malice. It is considered as a qualified
privilege. There are two kinds of privilege communication
we have: absolute privilege communication and the other
one is qualified or conditional privilege communication.
This is an example of a qualified or conditional privilege
communication. It is an article written against him
pertaining to the performance of his function. He can file a
case because he felt defamed and damage. However, the
burden to prove that there was malice is on the part of the
author of the article, on the part of Philippine Daily Inquirer
when the Philippine Daily Inquirer published it lies on X. If
X failed to prove malice on their part, it would be an
acquittal. It is necessary that the said offended party must
prove malice.
There are two kinds of malice:
1. Malice in law- Insofar as malice in law is
concerned it is the kind of malice is that is
presumed by law for every defamatory statement.
2. Malice in fact- it is the kind of malice which cannot
be presumed by law. It must be proved them by the
private complaint.
Insofar as malice in fact is concerned, there are two kinds of
privilege communication we have absolute privilege
communication and the other one is the so-called qualified
or conditional privilege communication. Absolute privilege
communication is totally not actionable. You cannot file a
case against the said offender, against the said author for
the malicious or libelous article.
Examples of an absolute privilege communication:
Criminal Law Review
Prosecutor Victoria C. Garcia
1. Statements malicious, libelous statements made by
members of Congress;
2. Libelous malicious statements made in open court
during hearings; and
3. Malicious libelous statement stated in pleadings
filed before the court.
These are examples of absolute privilege communication,
you cannot file a case of libel.
Examples of qualified or conditional privilege
communication. The example that I have given, if the said
article pertains to the performance of a public function of a
public officer, the said public officer can file a case however
the burden is on him to prove malice.If he fails prove malice
on the part of the author then it will be considered as an
acquittal.
Q: Is proof of truth admissible in evidence in malice?
A: As a rule no. Malice, as a rule, there is no need to prove
truth in case of a proceeding for libel because whether you
said libelous statement is true or not, if it is defamatory then
there is the case for libel, however if the said accused
charges the offended party of an act amounting to a crime
or if it pertains to the performance of a public officers
function, proof of truth is admissible in evidence.
Q: Where do you file a case over where do you file a case
of libel?
A: It should be filed before the RTC. Although the penalty for
libel is only for prision correctional in its medium and
maximum period and based on the rules of court, it is
within the jurisdiction of the MTC, by express statement
under Article 360, it must be filed before the RTC, Court of
first instance that is the Regional Trial Court.
If libel refers to written defamation; oral defamation is
slander and defamation through actions is slander by deed.
ARTICLE 354 – REQUIREMENT FOR PUBLICITY
Kinds of Privilege Communications (Exceptions):
1. A private communication made by any person to
another in the performance of any legal, moral or
social duty; and
2. A fair and true report, made in good faith, without
any comments or remarks, of any judicial,
legislative or other official proceedings which are
not of confidential nature, or of any statement,
report or speech delivered in said proceedings, or
of any other act performed by public officers in the
exercise of their functions.
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ARTICLE 355 – LIBEL MEANS BY WRITINGS OR
SIMILAR MEANS
A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting,
theatrical exhibition, cinematographic exhibition, or any
similar means, shall be punished by prision correccional in
its minimum and medium periods or a fine ranging from
200 to 6,000 pesos, or both, in addition to the civil action
which may be brought by the offended party.
ARTICLE 356 – THREATENING TO PUBLISH AND
OFFER TO PRESENT SUCH PUBLICATION FOR A
COMPENSATION
The penalty of arresto mayor or a fine from 200 to 2,000
pesos, or both, shall be imposed upon any person who
threatens 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 such libel for a compensation or money
consideration.
Art. 355 enumerates how libel can be committed:
1. Writing;
2. Printing;
3. Lithography;
4. Engraving;
5. Radio;
6. Phonograph;
7. Painting;
8. Theatrical Exhibition;
9. Cinematographic Exhibition;
10. Any similar means
ARTICLE 357 – PROHIBITED PUBLICATION OF ACTS
REFERRED TO IN THE COURSE OF OFFICIAL
PROCEEDINGS
The penalty of arresto mayor or a fine of from 20 to 2,000
pesos, or both, shall be imposed upon any reporter, editor
or manager or a newspaper, daily or magazine, who shall
publish facts connected with the private life of another and
offensive to the honor, virtue and reputation of said person,
even though said publication be made in connection with or
under the pretext that it is necessary in the narration of any
judicial or administrative proceedings wherein such facts
have been mentioned.
ARTICLE 358 - SLANDER
Oral defamation shall be punished by arresto mayor in its
maximum period to prision correccional in its minimum
period if it is of a serious and insulting nature; otherwise the
Criminal Law Review
Prosecutor Victoria C. Garcia
penalty shall be arresto menor or a fine not exceeding 200
pesos.
ORAL DEFAMATION/SLANDER
1. Grave Slander- when serious and insulting in
nature
2. Simple Slander
ARTICLE 359 – SLANDER BY DEED
The penalty of arresto mayor in its maximum period to
prision correccional in its minimum period or a fine ranging
from 200 to 1,000 pesos shall be imposed upon any person
who shall perform any act not included and punished in this
title, which shall cast dishonor, discredit or contempt upon
another person. If said act is not of a serious nature, the
penalty shall be arresto menor or a fine not exceeding 200
pesos.
SLANDER BY DEED refers to the commission of acts, it does
not refer to the use of words, with the intent to blemish the
credit and reputation of another person.
It can also be:
a. serious, grave slander by deed – serious and
insulting
b. simple slander by deed.
ARTICLE 360 – PERSONS RESPONSIBLE.
Any person who shall publish, exhibit, or cause the
publication or exhibition of any defamation in writing or by
similar means, shall be responsible for the same.
The author or editor of a book or pamphlet, or the editor or
business manager of a daily newspaper, magazine or serial
publication, shall be responsible for the defamations
contained therein to the same extent as if he were the
author thereof.
The criminal and civil action for damages in cases of written
defamations as provided for in this chapter, shall be filed
simultaneously or separately with the court of first instance
of the province or city where the libelous article is printed
and first published or where any of the offended parties
actually resides at the time of the commission of the offense:
Provided, however, That where one of the offended parties
is a public officer whose office is in the City of Manila at the
time of the commission of the offense, the action shall be
filed in the Court of First Instance of the City of Manila, or of
the city or province where the libelous article is printed and
first published, and in case such public officer does not hold
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office in the City of Manila, the action shall be filed in the
Court of First Instance of the province or city where he held
office at the time of the commission of the offense or where
the libelous article is printed and first published and in case
one of the offended parties is a private individual, the action
shall be filed in the Court of First Instance of the province or
city where he actually resides at the time of the commission
of the offense or where the libelous matter is printed and
first published:
Provided, further, That the civil action shall be filed in the
same court where the criminal action is filed and vice versa:
Provided, furthermore, That the court where the 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 cases of
written defamations, the civil and/or criminal actions
which have been filed in court at the time of the effectivity
of this law.
Preliminary investigation of criminal action for written
defamations as provided for in the chapter shall be
conducted by the provincial or city fiscal of the province or
city, or by the municipal court of the city or capital of the
province where such action may be instituted in accordance
with the provisions of this article. No criminal action for
defamation which consists in the imputation of a crime
which cannot be prosecuted de oficio shall be brought
except at the instance of and upon complaint expressly filed
by the offended party. (As amended by R.A. 1289, approved
June 15, 1955, R.A. 4363, approved June 19, 1965).
ARTICLE 361 – PROOF OF THE TRUTH
In every criminal prosecution for libel, the truth may be
given in evidence to the court and if it appears that the
matter charged as libelous is true, and, moreover, that it
was published with good motives and for justifiable ends,
the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the
imputation shall have been made against Government
employees with respect to facts related to the discharge of
their official duties.
In such cases if the defendant proves the truth of the
imputation made by him, he shall be acquitted.
ARTICLE 362 – LIBELOUS REMARKS.
Libelous remarks or comments connected with the matter
privileged under the provisions of Article 354, if made with
malice, shall not exempt the author thereof nor the editor
or managing editor of a newspaper from criminal liability.
Criminal Law Review
Prosecutor Victoria C. Garcia
ARTICLE 363 – INCRIMINATING INNOCENT PERSON
ELEMENTS:
1. That the offender performs an act;
2. That such act he directly incriminates or imputes to
an innocent person the commission of a crime; and
3. That such act does not constitute perjury.
Act commited by any person, directly incriminating or
imputes to an innocent person the commission of the crime
outside perjury.
• It is necessary that it must not be made on an
affidavit, because if it is through an affidavit, it will
be perjury.
EXCEPTIONS:
1. Perjury (sworn affidavit), or
2. Sec 29 of RA 9165 (Planting of evidence
Q: What if X was eating in a canteen, the police officers
entered. The police officer said “nakakita mo ba ang
nakikita ko” and Y said “opo nakikita ko ang nakikita
mo”. They were refering to X eating in the canteen. Wala
pa tayong huli, meron na ngayon. So there was X eating.
Y seated on the left, police officer Z seated on the right
while police officer Y was busy talking to X “ why are
you eating why are you alone”, police officer Z was busy
placing a stolen wallet inside the bag of X. He viciously
open the zipper and placed the small wallet and then
thereafter the moment the Z signal like that saying
approved, police officer Y told X “actually Mr. X we're
here to arrest you” “for what?” “we are here to arrest
you because we got information that you took a wallet
but X said no I just came here to eat, what are you
talking about however the officers said if you are telling
the truth that you do not know about the missing wallet
let us look inside your bag and they look inside and
there was the wallet that was the missing wallet and X
said “how come the wallet was there”. “Now you're
under arrest for having stolen this add wallet and we're
going to file a case of theft against you”. And they placed
handcuffs on him and they brought him to the police
station. However, unknown to police officers Y and Z,
the owner of the canteen saw everything, the owner of
the canteen saw how Z planted the wallet inside the bag
of X while Y was busy talking to X. What crime or crimes
are committed by just said police officer?
A: First the police officers are liable under Article 363 for
incriminating innocent person. By placing the said wallet
inside the bag of X, they impute upon an innocent person X,
the commission of the crime of theft. Therefore thet are
liable for incriminating innocent person. After that, they
arrested X, telling X we're going to file a case of theft against
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you although they have no legal authority to do so because
X has not done anything wrong. Therefore they also
committed unlawful arrests under Article 269. The act of
incriminating innocent person is a necessary means in
order to commit unlawful arrest. Therefore the crime
committed is unlawful arrest through incriminating
innocent person.
Q: What if the police officer saw Y. “Y we are here to
arrest you, you're under arrest”. Y said why what have I
done. “You are under arrest, you can explain at the
police station”. And so they handcuffed him and forcibly
brought him at the police station. At the police station Y
was frisked and thereafter was told to hand everything
on top of the table. So he placed his bag. The police
officers look inside his bag and surreptitiously took his
wallet and place inside the wallet stolen money. And
then the police officer said “we're going to file a case of
theft, we arrested you for that because we got
information you stole, you took money” “that's not
true” “let us see your wallet look inside your wallet here
is the money that you had taken from the victim” What
crime or crimes are committed by the said police
officer?
A: The first crime they committed is unlawful arrest, they
told him “you're under arrest we're going to file a case
against”. He said what case. “You have to explain at the
police station lets go”. So that is unlawful arrest, they
arrested X for the purpose of delivering him to the proper
authorities although they are not authorized to do so. At the
police station, they should surreptiously placed the stolen
money inside his wallet. To impute upon him the
commission of the crime of they, they also committed
incriminating innocent person. But this time the act of
unlawful arrest was the necessary means to commit
incriminating innocent person, therefore it will be the
reverse, the crime committed is also a complex crime but
the complex crime of incriminating innocent person
through unlawful arrest.
ARTICLE 364. INTRIGUING AGAINST HONOR
The penalty of arresto menor or fine not exceeding 200
pesos shall be imposed for any intrigue which has for its
principal purpose to blemish the honor or reputation of a
person.
TITLE FOURTEEN - QUASI-OFFENSES (ART. 365)
ARTICLE 365 - IMPRUDENCE AND NEGLIGENCE
Under Article 365, all that you have to remember in case of
quasi-offense is that quasi offense, the Supreme Court had
different decisions just like in arson, just like in case over
rape of a mental retardate, the Supreme Court and different
Criminal Law Review
Prosecutor Victoria C. Garcia
decisions, according to the Supreme Court Reckless
imprudence, simple imprudence, simple negligence are
only means of committing a felony.
In another Supreme Court decision just like in the case of
Ivler, the SC said reckless imprudence, simple imprudence
and simple negligence are crimes by themselves. The
Supreme Court differ, however I would say that when in
case question is given in that, the answer is: “it is settled in
jurisprudence that reckless imprudence, simple
imprudence and simple negligence are crimes by
themselves and you cite the case of Ivler, that is the better
decision.
Q: X was driving his car. He hit and bumped another car.
The driver died, the husband, the wife survives
sustaining only slight physical injuries because the
husband covered the wife. X was arrested and after
investigation, X was charged with two crimes before the
office of the public prosecutor, one is reckless
imprudence resulting slight physical injuries for the
injuries sustained by the wife and the other one is
reckless imprudence resulting in homicide and damage
to property for the death of the husband and the
damage caused on the car. These are the two cases filed
against X before the office the public prosecutor. Since
the victim for reckless imprudence resulting slight
physical injuries the wife is alive and there it is subject
for inquest by the fiscal and after inquest, the fiscal
immediately filed a case before the Metropolitan Trial
Court, reckless imprudence resulting slight physical
injuries. Insofar as the case for reckless imprudence
resulting in homicide and damage to property, since the
victim of the homicide, since the husband died and
likewise since the damage to property must still be
assessed, it is subject to our preliminary investigation
and not merely for inquest purposes and therefore it
stayed in the office of the public prosecutor for 60 days.
Meanwhile while the public prosecutor was resolving
the case for reckless imprudence resulting in homicide
and damage to property, the case for reckless
imprudence resulting slight physical injuries, the case
was set for arraignment, when X was arraigned, upon
advice of the counsel, X pleaded guilty your honor and
so X was convicted and imposed with a penalty for
reckless influence resulting in slight physical injuries.
After 60 days, here comes the resolution for reckless
imprudence resulting in homicide and damage to
property, it was filed before the same court the MTTC.
Upon the filing of the case, the counsel moved to quash
the said information on the ground of double jeopardy
According to him, his client X was already been
convicted of reckless imprudence resulting in slight
physical injuries, therefore, the said client X can no
longer be charge prosecuted and convicted for another
crime arising from the very same reckless imprudence
otherwise double jeopardy attaches. Denied by the
MTTC until the case reaches the SC.
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A.Y. 2020 – 2021 Prosecutor Victoria C. Garcia

The SC said the counsel is correct. The information has to

be quashed case. Case dismissed. Supreme Court said that
it is settled in jurisprudence that reckless imprudence,
simple imprudence and simple negligence are crimes by
themselves when either was convicted of reckless
imprudence resulting to slight physical injuries he can no
longer be convicted of another crime arising from the very
same reckless imprudence. What you punish is the
imprudence, the negligence not the resulting felony.
Therefore, the said case for reckless imprudence resulting
to homicide and damage to property was quashed. It was
dismissed.

Another thing you have to remember in article for 365, as

the Supreme Court said this a number of times, what you
are punishing is the imprudence the negligence therefore
do not say homicide through reckless imprudence, that is
wrong, you are not punishing the homicide. You are
punishing the imprudence these are quasi-offenses,
therefore reckless imprudence resulting in homicide,
reckless imprudence resulting in multiple homicide,
reckless influence resulting in multiple serious physical
injuries. What you are punishing is the imprudence.

Q: X was driving his car, while he was driving his car, he

hit a motorcycle. The two sons fell but survived the
father died. What crime is committed?
A: Reckless imprudence resulting in homicide and double
serious physical injuries. Even if the two sons sustained
fatal wound which you would say a frustrated felony,
however, you cannot say reckless imprudence resulting in
frustrated homicide. No there is no such crime. If the said
victim did not die, even if the wound was fatal it is only
serious physical injuries because there is no intent to kill. In
reckless imprudence there was only negligence. Therefore,
if the victim did not die it would only be serious physical
injury. So, in that case, the father died the two children
survived, reckless imprudence resulting in homicide
and double serious physical injuries.

“May you never forget how far you have come and the miles it took
just to get to this place.” – Morgan Harper Nichols

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